Textos Seletos dos

Núcleos do
Integralismo Inglês.
III. Thomas Pink.
 Jacques Maritain and the problem of Church and State1

1. God and Caesar

Over two decades, up to the publication in 1951 of his Man and the
State, Jacques Maritain sought to develop a new theory of the
relation between Church and state. He was aware of previous
Church magisterial teaching and canonical regulation that taught or
assumed the model of soul-body union – the Leonine model as I
shall term it, since it was formally endorsed in recent times by Leo
XIII, though it had been proposed for a very long time in theology
approved by the papacy and had been assumed by general councils
and in ecclesial policy:

The Almighty, therefore, has given the charge of the human

race to two powers, the ecclesiastical and the civil, the one
being set over divine, and the other over human,
things...There must, accordingly, exist between these two
powers a certain orderly connection, which may be compared
to the union of the soul and body in man. Leo XIII, Immortale
Dei §§13-14

The Church ideally stands as soul to the state as body, united to

form a single Christian community just as the union of soul and
body forms a single person. And as the soul and the body have their
respective intellectual and corporeal ends that contribute to the
good of the whole, but with the soul’s ends being higher, so too
each of Church and state have their own areas of competence,
spiritual and temporal, religious and human, over which each is
sovereign, the spiritual good served by the Church being higher
than the temporal good served by the state. Because the spiritual
good served by the Church is a good of the whole soul-body union,

1
My thanks for comments to the faculty and students of Mundelein Seminary, where an initial
version of this paper was given at an October 2013 joint lecture on ‘Dignitatis Humanae at 50:
The Future of Religious Freedom’, to my fellow lecturer Fr Thomas Joseph White OP, and to
Professor Matthew Levering, who organized the event. My thanks also to referees for The
Thomist for their comments.
but higher than that served by the state, the state, when Christian
and ruled by the baptized, must be prepared to support the Church
in spiritual matters, lending its coercive power to the Church,
acting as the Church’s agent and on her authority – just as in
deliberate human actions that serve the intellectual purposes of the
soul, the body operates at the direction of the soul.

Leo XIII taught that the state should recognize the truth of the
Catholic faith; for the state is governed, just as much as individuals
are, by a duty, under natural law, to worship God in whatever way
he directs and reveals:

Nature and reason, which command every individual

devoutly to worship God in holiness, because we belong to
Him and must return to Him, since from Him we came, bind
also the civil community by a like law. For, men living
together in society are under the power of God no less than
individuals are, and society, no less than individuals, owes
gratitude to God who gave it being and maintains it and
whose ever-bounteous goodness enriches it with countless
blessings...So, too, is it a sin for the State not to have care for
religion as a something beyond its scope, or as of no practical
benefit; or out of many forms of religion to adopt that one
which chimes in with the fancy; for we are bound absolutely
to worship God in that way which He has shown to be His
will. Immortale dei §6

Having recognized revealed religious truth, the state should also

give it the protection of the laws:

All who rule, therefore, would hold in honour the holy name
of God, and one of their chief duties must be to favour
religion, to protect it, to shield it under the credit and sanction
of the laws, and neither to organize nor enact any measure
that may compromise its safety. Immortale Dei §6

And elsewhere
 Therefore the law of Christ ought to prevail in human society
and be the guide and teacher of public as well as of private
life. Since this is so by divine decree, and no man may with
impunity contravene it, it is an evil thing for any state where
Christianity does not hold the place that belongs to it. Tametsi
Futura §8

In Immortale Dei Leo XIII celebrated the fact that once, in

accordance with this teaching

the religion instituted by Jesus Christ, established firmly in

befitting dignity, flourished everywhere, by the favour of
princes and the legitimate protection of magistrates; and
Church and state were happily united in concord and friendly
interchange of good offices. Immortale Dei §§19-21

But Leo XIII insisted that, though the state should legislate to
protect the Catholic faith, the authority to legislate in matters of
religion belongs to the Church, not to the state. The state must
therefore legislate to support the Catholic faith as the Church's
agent. For Leo XIII carefully distinguished the directive
competences of Church and state, the two sovereign powers
(potestates) with authority to legislate and punish. He excluded
legal direction in matters of religion from the native competence of
the state:

While one of the two powers [the state] has for its immediate
and chief object care of the goods of this mortal life, the other
[the Church] provides for goods that are heavenly and
everlasting. Whatever, therefore, in things human is in any
way of a sacred character, whatever belongs either of its own
nature or by reason of the end to which it is referred, to the
salvation of souls or to the worship of God, falls wholly within
the power of the Church and is wholly subject to her
judgment (id est omne in potestate arbitrioque Ecclesiae).
Immortale Dei §13–§14
So the authority behind any legal direction by the state in support
of religious truth must be that of the Church. 2

Maritain referred to this model in his description of the relations

between Church and state in the middle ages when, as he put it

…the political power of the Holy Empire and the kings was
an instrument for the spiritual aims of the Church. Man and
the State (Washington: Catholic University of America
Press, 1998), chapter 6 'Church and state', p158

In Maritain’s view a soul-body union of Church and state was

simply not feasible in the modern age, so that it could no longer be
proposed, even as an ideal. He very carefully avoided any claim
that the soul-body union model involved doctrinal error on the
Church’s part, at least in regard to the period for which that model
had been appropriate.3 Maritain sought to steer a middle course

2
The soul-body model of Church-state relations, as understood within the Church's theological
tradition up to and including the time of Leo XIII, centres on the doctrine that a Christian state
should act as the Church's agent - her bracchium saeculare - in spiritual matters in which the
Church alone has legislative competence, as the body acts at the soul's direction in intellectual
matters.
Various ecumenical councils have instructed Christian rulers to act as the Church's
agents in support of the Catholic faith: these include Lateran IV, Constance (and, following and
confirming Constance, Pope Martin V), and Trent. For specific references and discussion see my
‘The interpretation of Dignitatis Humanae: a reply to Martin Rhonheimer’ Nova et Vetera,
(English edition), 11, No. 1 (2013): pp77–121 - especially pp99-103.
Far from being viewed as outmoded by the late nineteenth century, this teaching that
the Christian state should act as the Church’s agent or secular arm is maintained in the 1917
Code of Canon Law - see canon 2198 discussed below. Authorities cited in the Code for that
canon come from the conciliar tradition just mentioned - specifically Martin V Inter Cunctas,
article 32; and the Council of Trent, Session 25, Decretum de Reformatione Generali, chapter 20,
in Decrees of the Ecumenical Councils, eds Tanner and Alberigo, (Washington: Georgetown
University Press, 1990), volume 2, p795.
For a classic theological defence of the model of soul-body union, still cited in theological
manuals under Leo XIII, see Robert Bellarmine, Tractatus de Potestate Summi Pontificis in Rebus
Temporalibus, adversus Gulielmum Barclay, translated in On Temporal and Spiritual Authority:
Robert Bellarmine, ed. Stefania Turtino (Indianapolis: Liberty Fund 2012).

3
In this Maritain was more careful, and more respectful of the magisterium, than Martin
Rhonheimer, who openly accuses the pre-conciliar magisterium of error in teaching the state’s
duty legislatively and coercively to support the Catholic faith and enforce ecclesiastical law – see
his “Benedict XVI’s ‘Hermeneutic of Reform’ and Religious Freedom,” Nova et Vetera (English
between, on the one hand, accusing the Church of error in her past
teaching, and, on the other, descending to a brute relativism of ‘that
was then, this is now’.

Maritain intended to replace the Leonine ideal of soul-body union

with a new religiously pluralistic ideal of Church-state relations.
To steer his middle course between simply condemning the
Leonine model and brute relativism, and to preserve continuity on
fundamentals with previous teaching, Maritain laid down certain
immutable principles governing any ideal of relations between
Church and state – principles that would be fundamental to Church
teaching at all times. Basic to these immutable principles is the
distinction between God and Caesar - between a spiritual good
related to God and a temporal good served by purely human
communities and associations. Basic too is the superiority of the
spiritual good over the temporal. This distinction of the spiritual
from the temporal and the superiority of the spiritual determines
the proper immutable relation between the Church as serving the
spiritual and the state as serving the temporal. The Church must
have a corresponding superiority over the state, and the sphere of
religion served by the Church must transcend state direction and
authority. So the state always has to grant the Church freedom to
pursue her mission. Any acceptable form of Church-state relation
has to apply these constant principles.

Maritain then introduced the idea of a succession of what he termed

distinct historical climates in which these immutable principles
have been applied – but in different ways for each climate:

For there are in human history typical climates or

constellations of existential conditions, which express given
intelligible structures, both as concerns the social, political,
and juridical dominant characteristics and the moral and
ideological dominant characteristics in the temporal life of the
human community, and which constitute frames of reference
edition) 9, no. 4 (2011): pp1029–54
 for the ways of applying in human existence the immutable
principles that hold sway over the latter... Man and the State,
p157

Appropriate to each historical climate has been a distinct ideal

mode of applying or realizing the immutable principles governing
Church-state relations. Each mode of application counts as
analogous to the others in that each mode, though importantly
different from the others, has provided the proper way for its own
period of realizing the immutable principles:

Thus the principles are absolute and immutable and supra-

temporal. And the particular, concrete applications through
which they are to be analogically realized, and which are called
for by the various typical climates that replace each other in
human history, change according to the specific patterns of
civilization, the intelligible features of which it is imperative
to recognize as peculiar to every given historical age. Man and
the State, p157

In what Maritain termed the sacral period of the Middle Ages,

when the Western state was a specifically Christian state, identified
by a public religious allegiance, and so where full citizenship in the
state depended on baptism, the ideal mode of application was
indeed that of soul-body union, with the superiority of Church over
state taking juridical form, so that in religious matters the state
would act as the Church’s agent or secular arm (bracchium
saeculare). But we now lived in what Maritain termed the secular
age, where the state is no longer confessional and where citizenship
is no longer linked to a particular religion. In Maritain’s view, this
modern secularity was a positive development that allowed the
distinction between the spiritual and the temporal to be fully
established. It was an historical progression required by the
fundamental distinction between God and Caesar:

The modern age is not a sacral, but a secular age. The order of
terrestrial civilization and of temporal society has gained
complete differentiation and full autonomy, which is
 something normal in itself, required by the Gospel's very
distinction between God's and Caesar's domains. Man and the
State p159

Since the identity of the state is no longer tied to any particular

religious community, the secular age demands that the state no
longer accord juridical privilege to any particular religion, even the
true religion. So the soul-body union model is no longer
appropriate, even as an ideal:

The supreme, immutable principle of the superiority of the

Kingdom of God over the earthly kingdoms can apply in
other ways than in making the civil government the secular
arm of the Church, in asking kings to expel heretics, or in
using the rights of the spiritual sword to seize upon temporal
affairs for the sake of some spiritual necessity (for instance in
releasing the subjects of an apostate prince from their oath of
allegiance). These things we can admire in the Middle Ages;
they are a dead letter in our age. Man and the State pp62-3

In the secular age, the superiority of Church over state must take
moral rather than juridical form. The secular age involves a new
form of Church-state cooperation, without legal privilege for the
Church but with shared agreement on the rights of individuals – the
rights belonging to individuals under natural law. These include an
individual right to religious liberty against the state and other civic
institutions, and full freedom for the Church and all other religious
communities to pursue their own conceptions of religion, true or
false. State law, especially when inspired by the moral example of
the Church, will be consistent with natural law. But the Church will
give only a moral example. The state will no longer be subject to
ecclesial direction in spiritual matters.

In demanding only that the state grant the Church freedom rather
than juridical privilege, Maritain anticipated Dignitatis Humanae –
a declaration that owed much to Maritain. Indeed at the Second
Vatican Council on 21 September 1965, in the final debates before
that declaration’s passing in November, Maritain’s friend and
collaborator Charles Journet gave Dignitatis Humanae a highly
Maritainian endorsement. He repeated core Maritainian claims:
that in the modern world under the influence of the Gospel, the
distinction between things spiritual and temporal, between God and
Caesar, was more clearly established, leading to a new way of
applying the principle of the subordination of the temporal to the
spiritual:

From the time of Constantine the rulers of the Church often

had recourse to the secular arm to defend the rights of the
faithful and to preserve the temporal and political order of the
said Christendom. But under the influence of the preaching of
the Gospel, the distinction between temporal and spiritual
things has gradually been made clearer, and is today obvious
to all.

Therefore, and this is of the greatest moment, the doctrinal

principle according to which matters temporal are subordinate
to matters spiritual is in no way removed, but is applied in
another way, that is by battling errors with the forces of light,
not by force of arms. Charles Cardinal Journet, Acta Conc.
Vatican II, vol 4.1 (Vatican 1976) p4254

In this careful address Journet combines, in a very Maritainian way,

a progressive understanding of the march from the sacral to the
secular age (it is, supposedly, the very influence of the Gospel that
renders the state more secular, to enable a clearer distinction
between the temporal and the spiritual) with a refusal to condemn
the earlier ideal of soul-body union as doctrinally erroneous.
Journet did not actually claim that the Leonine model was wrong
even for the sacral age, or that the Church was always mistaken in
teaching it. The view he presents is instead that of Maritain: a past
way of realizing the subordination of the temporal to the spiritual
has been replaced, as a result of historical progress, by another
appropriate to the more advanced present. Just like Dignitatis
4
For the importance of this address at the council in gathering support for the declaration, see
History of Vatican II, ed. G. Alberigo, (Leuven: Peeters, 2006), volume 5, pp102-3.
Humanae itself, Journet says nothing about whether in the sacral -
and by implication more backward - past, when states were
communities of the baptized, it had been wrong even then for the
Church to use her jurisdiction over the baptized to turn baptized
rulers into her religious agents.5

One figure who poses a serious problem for Maritain and Journet
is the pope who in recent times taught the model of soul-body union
most clearly and formally: Leo XIII. It is obvious why the teaching
of that pope should be an embarrassment for Maritain’s theory.
Pope Leo's vigorous defence in Immortale Dei of the soul-body
model as an ideal comes in 1885, long after the sacral period of the
Middle Ages, and well into the age of the modern nonconfessional
state - that is the secular age. But according to Maritain’s theory,
far from still ideal, soul-body union is the wrong model of Church-
state relations for the secular age. On Maritain’s terms, in still
presenting soul-body union as a modern ideal, Leo XIII must be
teaching error. Maritain had hoped to use his theory of successive
historical climates to ring-fence his theory from conflict with the
magisterium - the Church’s previous commitment to soul-body
union would be respected, though only as a feature of the sacral
age. However, since clear magisterial defence of soul-body union
as the continuing ideal occurs long after, well into the secular age,
conflict is inescapable. Indeed Maritain was in conflict not only
with papal teaching but also with canon law. A canon, 2198,
insisting that the Christian state act as the Church’s secular arm to
enforce her laws, with supportive citations of decrees to that effect
from Constance and Trent, was included in a new Code of Canon
Law introduced as late as 1917 and in force for much of the
twentieth century.

5
In his "Dignitatis Humanae - Not a Mere Question of Church Policy: A Response to Thomas
Pink" in Nova et Vetera (English edition) 12, no. 2 (2014): pp445–470, Rhonheimer seeks to
show that the Council fathers shared his own understanding of the declaration as a contradiction
of previous magisterial teaching by citing (461-62) this specific address by Journet. But this is to
misunderstand the Maritainian project, which was, unlike Rhonheimer, to avoid supposing the
magisterium to have taught error. Journet's careful refusal, in an important and influential speech,
to present the declaration as a contradiction of previous doctrine, does nothing to support
Rhonheimer's reading of it.
Maritain was evasive about the Church’s continuing and
unmistakably modern defence of the soul-body model. He sought
to present Leo XIII as concerned fundamentally to teach the
autonomy of the state.6 And indeed, Leo XIII did teach that
autonomy, for temporal matters where the state is sovereign; but in
Man and the State Maritain is silent about Leo’s equal emphasis on
soul-body union, and the state’s proper subordination to the Church
in spiritual matters. Maritain also attempted to claim that canon
2198’s talk of the state being required to act as the Church’s secular
arm was really designed to secure the same legal protection for the
Church from the state as was owing to any religious association.7
But the explicit reference in the canon to the state as the Church’s
‘secular arm’ speaks the language of something very different – a
principal-agent relation between Church and state. And that is
confirmed by the 1917 Code’s citations of Constance and Trent,
which call for the coercive enforcement by the state of Church laws
generally, not mere legal recognition of the Church’s rights as one
voluntary association among many. Maritain’s minimizing reading
makes no sense of the texts, a reading that was clearly not shared
by others. For once the Church, with Dignitatis Humanae, finally
gave up her extraordinarily persistent attempt to continue to apply
the model of soul-body union, she gave up canon 2198 as well.
That canon has no equivalent in the 1983 Code, and that is not
surprising. That canon was phrased and referenced as it was in the
1917 Code precisely to express in law the Church’s doctrinal
commitment to soul-body union at least as an ideal – a commitment
that until 1965 was as much a feature of ecclesial modernity and of
the secular age as Vatican radio and papal photographs.

On Maritain’s theory, it seems that Leo XIII was not only teaching
error, but damaging error too. For on Maritain’s view the pope’s
teaching, when given in the secular age, could only tend to hold
back clearer understanding of the distinction between God and
Caesar – a distinction that Maritain made out to be best displayed
6
See for example Man and the State p153.

7
See Man and the State p161, footnote 17.
by a fully secular state that refused juridically to privilege the
Church. But of course that was not Leo XIII’s view, and the
distinction between God and Caesar was hardly downplayed by
him. The clear distinction between God and Caesar, between
spiritual and temporal authorities and their proper concerns, and
the sovereignty of each in its proper sphere, was fundamental to
Leo’s teaching in Immortale Dei, as it had been to the Jesuit
political theology of the Counter-Reformation (a decadent
‘baroque’ age in Maritain’s view, and openly despised by him) to
which Immortale Dei clearly owed so much. For Leo XIII, a
juridical superiority of Church over state in spiritual matters, far
from endangering the distinction between Church and state, was
important to its proper recognition. The subordination of state to
Church in spiritual matters followed, in Leo’s view, from a right
understanding of the spiritual and its superiority. The soul-body
model that Maritain dismissed as an imperfect and by now
outmoded realization of the distinction between the spiritual and
the temporal was for Leo XIII dictated, at least as an ideal, by that
very distinction, and was fundamental to proper respect for it.

Maritain’s rejection of the soul-body model was motivated by

something already clear in 1885, and even clearer by the mid-
twentieth century. The Leonine ideal was becoming impossible to
apply. No modern state would really be willing to serve as body to
the Church’s soul. Maritain concluded that the old ideal of Church-
state relations must therefore be replaced by a new ideal. There
must be a new way of rightly ordering relations between Church
and state, a detachment of Church and state appropriate as an ideal
to the secular age as a soul-body union of them had been to the
sacral age. But we need not follow Maritain in drawing this
conclusion as there is another possibility. There may simply be no
alternative ideal of the relation between Church and state – which
is why the Church insisted on soul-body union so doggedly and so
long.

The Leonine ideal of soul-body union is certainly not now

realizable. And, as Maritain himself very clearly realized, one
reason may be that the juridical conditions for a soul-body union
of Church and state are no longer met, nor likely to be. States no
longer exist as communities of the baptized, that is, as political
communities that publicly link their identity, at least in aspiration,
to baptism and so to a Christian allegiance. But if baptism and the
Christian allegiance that it brings are no longer professed by the
state publicly, as part of its political identity, how can state officials
still be in a position to put their public office at the Church’s
disposal?

This does not, however, prevent soul-body union from remaining

the sole available ideal for Church-state relations, even under
modern conditions, just as Leo XIII clearly taught it to be. The
credibility of an ideal does not depend on its continued
practicability. Sometimes none of the practicable options is ideal.
The Leonine case for soul-body union as an ideal has to do not with
what is currently politically feasible, which may only be various
levels of the bad, but with what political arrangements, where
Church-state relations are concerned, could best ensure the good.
Now we can agree with Maritain that a basic condition on
acceptable relations between Church and state is respect for
religion as a genuine good in its own right, and as a good that
transcends the authority of the state. As we shall see, Dignitatis
Humanae bases the right to religious liberty against the state on
respect for religion as such a transcendent good. And Leo XIII
based his own teaching on the limits to state authority in matters of
religion on respect for religion as such a good.

The issue between Leo XIII and Maritain comes then to this: Does
political secularization – the detachment of the state from any
particular religion and so from the Church - now provide the best
means to ensuring that religion is respected as a transcendent good,
as Maritain supposed? Or are things instead as Leo XIII supposed:
does soul-body union still provide the best means to ensuring that
religion is so respected – perhaps because such a Church-state
union, or at least something approximating to it, provides in the
long term the only possible such means? If Leo XIII turns out to
have been right, then we are left with a bleak conclusion. In so far
as soul-body union, or even anything at all like it, is now
impossible, so too, at the political level, is the respect for religion
as a good that Dignitatis Humanae demands along with previous
Catholic tradition.

The problem for Maritain is that political secularization has not

taken the benign form that he predicted. Fundamental to Catholic
political theology, just as Maritain supposed, is indeed the
distinction between God and Caesar, between the spiritual and the
temporal, and the superiority of the spiritual over the temporal.
With these principles comes the clear doctrinal consequence,
taught both by Immortale Dei and by Dignitatis Humanae, that
religion is a distinctive good that transcends the coercive authority
of the state. Maritain and Journet thought that political
secularization enabled a better realization of these principles than
does the soul-body model. A fully secular state would lead to a
better understanding of, and clearer respect for, the distinction
between the spiritual and the temporal, between what is proper to
the state and what is proper to the Church. But in fact with political
secularization the very reverse has happened. The modern state and
the political theory that provides its ideology are altogether
abandoning the very distinction between the spiritual and the
temporal. Journet confidently claimed in September 1965 that with
political secularization and the detachment of state from Church

the distinction between temporal and spiritual things has

gradually been made clearer, and is today obvious to all.

But, as we will now see, that claim was not obviously true in 1965,
and half a century later it is even less true now.

Moreover Leo XIII’s theology is proving more credible than

Maritain’s. Leo’s theology does what Maritain’s fails to do, which
is convincingly to explain just why political secularization has
failed to take the benign form that Maritain predicted. It is no
accident that secularization has been destructive of the fundamental
distinction between spiritual and temporal. Other things being
equal, that distinction was indeed always going to be better
preserved by religious establishment. What has followed political
secularization is very much what Leonine doctrine implied might
follow, and not at all what Maritain and Journet so confidently
predicted.

2. Natural law, liberty and the good of religion

Dignitatis Humanae asserts an individual right to liberty of religion

against the state and other civic associations. This right to liberty
is based on the dignity of the human person as bearing the image
of God, and so as capable of reason and equipped with a power of
freedom, giving people the capacity to determine for themselves
which of a number of actions to perform. The liberty also involves
a conception of religion as a very distinctive kind of good, so
distinctive as to be removed from the coercive authority of the
state. But these ideas of the human person and of religion as a
distinctive good were not novel in 1965. They were already part
of the preconciliar Catholic tradition, and had already been
magisterially endorsed by Leo XIII. They are basic to the traditional
distinction between God and Caesar, the spiritual and the
temporal. If modern secular thought is abandoning that
distinction, this is because it is rejecting the traditionally Catholic
views of the person and of religion on which the distinction
depends.

A) The power of freedom and the dignity of the person

Dignitatis Humanae bases the right to liberty of religion on our

possession of freedom as a power, a capacity to determine for
ourselves what we do through the exercise of control. The act of
faith by which we respond to divine revelation is not something
passive and outside our control. Though faith is a gift of divine
grace, whether we respond in faith or not is also up to us. This link
between our possession of freedom as a power and our
possession of a right not to be coerced is central to the Catholic
tradition. Freedom as a power was long seen as an essential basis
of freedom as right. Normative freedom was consistently viewed
as based on metaphysical freedom.

In fact freedom as a power to determine for ourselves how we act

has a dual significance within the Catholic natural-law tradition.
Freedom as a power is the basis of our right to liberty, that is, of
our right not to be coerced. But it is equally the basis of our liability
to be coerced. It is both a normative block to coercion and a
normative enabler of it. The right to liberty and the liability to
coercion – to direction by law backed up by the threat of just
punishment to motivate compliance – are both made possible by
the fact that as humans we bear the image of God and are capable
of freedom and so too of the rationality which that freedom
presupposes.

Freedom as a power leaves it up to us what actions we perform,

and thereby gives us a capacity to determine for ourselves what
we do. This capacity was understood within the scholastic
tradition as basing a right to liberty, which the tradition clearly
understood as a right to determine for ourselves what we do. Only
because we have the capacity to determine things for ourselves
could we also have the right to determine things for ourselves:

If, however, we are speaking of the natural law of dominion,

it is then true that liberty is a matter of natural law, in a
positive, not merely a negative sense, since nature itself
confers upon man the true dominion of his liberty (dominium
libertatis)….For liberty rather than slavery is of natural right,
for this reason, namely, that nature has made men free in a
positive sense (so to speak) with an intrinsic right to liberty,
whereas it has not made them slaves in this positive sense,
strictly speaking. Francisco Suarez, De Legibus ac Legislatore
Deo, book 2, chapter 14, §16, in Opera Omnia, volume 5, ed.
Charles Berton (Paris: Louis Vives 1856) p141
In Scholastic philosophy the term dominium can mean the power
to determine for ourselves what we do by exercising actual
control over how we act. And Aquinas uses dominium in just this
sense.8 But it can also be used as Suarez uses it, in the phrase
dominium libertatis, to mean the right to exercise that power
without being subject to coercion. We find the same shifting use
of expressions in modern English to denote either freedom as a
power or freedom as a right. And freedom itself is not the only
term involved. The phrase it is up to me may assert a power of
control over what I do, as in “It is up to me whether I raise my
hand or lower it”. But it may also be used to assert a right against
someone seeking illicitly to command or to coerce me: “Don’t try
and tell me what to do. It is up to me what I do”.

This right to liberty meant for Suarez that no other private human
individual has any natural right to coerce me – to issue directives
that I am to follow, and that threaten me with punishment or
sanction if disregarded. Licit coercion requires special justification.
The one coercing me must be a public authority with jurisdiction
over me, a jurisdiction that extends to the kind of activity it is
seeking to direct. So our power of freedom protects us against
coercion, not unconditionally, but in those cases where the
authority to coerce is lacking.

Where that authority exists, however, and possesses the required

jurisdiction, the power of freedom not only ceases normatively to
block coercion, but actually enables it. My freedom then permits
me to be subject to legal direction, the whole point of which is to
guide the proper exercise of freedom; and it also permits me to
be fairly threatened with punishment for my breach of that
direction – a breach that would be my fault, as a misuse of my
freedom or control over what I do, so that the breach is my moral
responsibility and therefore fairly punishable.
8
See, for example, Thomas Aquinas, STh 1, 2 q21 a 2, resp. (Summa Theologiae, Turin: Marietti,
1950), volume 2, p. 122
This dual significance possessed by freedom as a power goes far
back in the Catholic tradition. An important and much-cited
example from the canonical tradition comes from the Fourth
Council of Toledo, meeting in 633 in Visigothic Spain. This
provincial council forbad the coercion of unbaptized Jews into the
faith. This ban on coercion was based on the fact that the act of
faith occurs through free will (libera arbitrii facultate). But this
involvement of free will only blocks coercion because the
unbaptized have not yet been incorporated in the Church - the
authority with the jurisdiction to coerce the act of faith. In the case
of the unbaptized, their capacity for free will does block their
coercion. But once someone is baptized, free will then underpins
obligation and its just enforcement; as the council insists, coercive
enforcement of the obligation to faith in the baptized is perfectly
legitimate.9

B) The distinctiveness of religion

Where religion is concerned, according not only to the Second

Vatican Council but, as we shall see, according to earlier Catholic
teaching as well, the state and other natural-law-based
institutions lack the required authority to coerce. Religion falls
outside the jurisdiction of the state. So the freedom of the act of
faith, that what religiously we believe as well as practice lies
within our control, gives us a right not to be coerced religiously

9
See Toledo IV, canon 56 in Corpus Iuris Canonici ed. E. Friedberg (Leipzig: Bernhard Tauchnitz,
1881), volume 1, pp161-2. Toledo IV is a basis of canon 14 of Trent’s decree on baptism,
condemning those, such as Erasmus, who opposed the coercion of the heretical or apostate
baptized back into the faith. For citation of Toledo IV at Trent in support of canon 14, see
Concilium Tridentinum Diariorum, Actorum, Epistularum, Tractatuum, ed. Societas Goerresiana
volume 5, ed. S. Ehses, (Freiburg im Breisgau: Herder 1911), p855 and p864. Toledo IV is also
cited by Dignitatis Humanae to show that the Church has never coerced the unbaptized into the
faith. For discussion of Toledo IV in relation both to Trent and to Vatican II, see my ‘The
interpretation of Dignitatis Humanae: a reply to Martin Rhonheimer’ Nova et Vetera, (English
edition), 11, No. 1 (2013): pp77–121.
that holds against the authority of the state. We have a
distinctively political right to religious liberty – just as Dignitatis
Humanae teaches. It needs to be established, however, why this
is so.

The Catholic natural-law tradition has always understood religion

to be an essential component of our natural happiness, enabling
us to flourish as human beings. The good of religion is distinctive
as involving our being related, by our human nature, to a being,
God, who both transcends our nature and is represented by it. Not
only has God created us as human beings, he has created us to
bear his image. The image of God is borne by us through our
intellectual nature, in our reason and in our freedom.

The fact that humanity bears the image of God allows for two
forms of religion. The first is natural religion, a worship and love
of God as creator whose existence is known to us by reason
through created things. The communal practice of natural religion
is a distinctive and vital part of natural human flourishing. As
rational monotheism, it is obligatory under natural law, and
obligatory because essential to the purely natural happiness and
justice that is served, at the level of the community, by the
authority of the state. The second form of religion is supernatural.
It involves our being raised, through divine grace, to a level of
happiness that transcends the capacity of human nature, to enjoy
the beatific vision of God. This supernatural life, though beyond
our natural capacity, is still consistent with our human nature
(which we retain) and is so consistent only because at the natural
level we already bear the image of God.

Because the supernatural life transcends our natural capacities,

the offer of such a life is entirely gratuitous and not at all due to
human nature. Hence the availability and content of religion in
supernatural form is not part of natural law. Natural law dictates
rational monotheism; but whether we are to be directed
supernaturally to God and if so, how, depends not on reason but
on revelation. Natural law simply requires that we believe and
follow whatever revelation, if any, is eventually afforded to us. It
leaves open the nature of that revelation, and even whether any
such revelation is ever delivered. The supernatural life itself must
therefore depend on a further law: a divinely given law that does
not come with human reason but is revealed, and that is not
natural but positive, being imposed on us by divine decree in
addition to the natural law that comes with our humanity. This
further divine law has in fact been given to us, through Christ, as
the law of the New Covenant.

Because supernatural religion transcends natural law,

supernatural religion transcends the authority of the coercive
institution that serves natural law, namely, the state. Supernatural
religion is directed by another authority that is based on and
serves the revealed law of the New Covenant, just as state
authority is based on and serves the natural law. This is the
authority of the Church, an authority that, though wielded by
humans, is not itself human, as based on a law that is not natural
to humanity but divine.10 So Suarez argued long before the Second
Vatican Council. The state had no authority to restrict Jewish or
Moslem worship on the basis of its false and nonsalvific nature,
because any error involved in such worship is at the level of the
supernatural, and so is not the concern of the state:

The reason is that these [non-Christian] rites are not

intrinsically bad in terms of natural law; so the temporal
power of a ruler does not extend in itself to forbidding them.
Suarez, De Fide, disputation 18, section 4, §10, in Opera

10
Thus the 1917 Code of Canon Law uses ‘human authority’ to refer to natural-law-based
authority, such as that of the state, in contrast to the divine-law-based authority of the Church.
See canon 2214 §1: ‘The Church has the native and proper right, independent of any human
authority, to coerce the delinquent among those subject to her with both spiritual and temporal
penalties.’
 Omnia, volume 12, p451
The only authority with the competence to legislate and punish in
matters of supernatural religion, therefore, is the revealed
authority of the Church. The state has no jurisdiction in this
matter:
Punishment of crimes only belongs to civil magistrates in so
far as those crimes are contrary to political ends, public peace
and human justice; but coercion with respect to those deeds
which are opposed to religion and to the salvation of the soul,
is essentially a function of spiritual power [the power of the
Church], so that the authority to make use of temporal
penalties for the purposes of such correction must have been
allotted in particular to this spiritual power. Suarez, Defensio
Fidei Catholicae adversus Anglicanae Sectae Errores, book 3,
chapter 23 §19 in Opera Omnia, volume 24, pp320-21
But what of natural religion? It might be thought that natural
religion at least, as essential to natural happiness and required by
natural law, would fall like other natural goods within the
jurisdiction of the state. Just as the state has the authority to
regulate goods such as education or transport, so too the state
has the authority to regulate religion at the natural level at least.
This, however, was not the view finally taken within the Catholic
tradition.

The Catholic view is that natural religion would indeed have fallen
within the jurisdiction of the state had some form of supernatural
religion not been revealed. But the coming of Christ decisively
changed the situation, by changing the orientation of divine
worship and so of religion generally from a natural to a
supernatural end. As the Second Vatican Council put it, Christ is
he

in whom people find the fullness of religious life

(plenitudinem vitae religiosae) Nostra Aetate §2, in Decrees of
 the Ecumenical Councils, eds N. Tanner and G. Alberigo,
(Washington: Georgetown University Press, 1990), volume 2,
p969.

This view of religion was first magisterially taught by Leo XIII. In a

passage of Immortale Dei already cited, Leo XIII declared that
religion as such - as concerned with the sacred and with divine
worship, and not only as concerned with supernatural salvation -
is outside the authority of the state:

While one of the two powers has for its immediate and chief
object care of the goods of this mortal life, the other provides
for goods that are heavenly and everlasting. Whatever,
therefore, in things human is in any way of a sacred character
(quoque modo sacrum) whatever belongs either of its own
nature or by reason of the end to which it is referred, to the
salvation of souls or to the worship of God, falls wholly within
the power of the Church and is wholly subject to her judgment.
Immortale Dei §13-§14 (emphases added)

A view of religion as now removed from state authority can

already be found in Suarez, though with some ambivalence. In
some passages Suarez adhered to what we might term a static
view, according to which the state retains a continuing authority
over natural religion. Thus in his treatise De Fide Suarez taught
that the state retains the authority to enforce rational
monotheism on its subjects.11 But in his account of canon law, in
the fourth book of De Legibus, Suarez moved towards a dynamic
view, according to which Christianity removed authority over
religion generally from the state and gave it to the Church, and did
so because of a reorientation of religion towards the supernatural
:

As regards this area [of religion], civil authority is more limited

11
Suarez De Fide disputation 18, section 4 §§7-8, in Opera Omnia, volume 12, pp450-51
 now within the Church, than it was before the Christian
religion; for once the care of religion was oriented towards to
the virtue and happiness of the commonwealth, as we noted
above from St Thomas; but now religion itself and spiritual
salvation and spiritual happiness are the priority, and the rest
for their sake; and therefore while once the care of religion
either belonged to the authority of the ruler, or was joined
with that authority in one and the same person, or was
subordinated to the authority of the ruler: now however the
care of religion is specially given to the shepherds of the
Church. Suarez De Legibus, book 4, chapter 11, §10, in Opera
Omnia, volume 5, p372

Unsurprisingly, given Leo XIII’s already clear teaching, we find the

dynamic view stated, with equal clarity, by Maritain:

Here we are confronted with the basic distinction, stated by

Christ himself, between the things that are God's and the
things which are Caesar's. From the advent of Christianity on,
religion has been taken out of the hands of the State; the
terrestrial and national frameworks in which the spiritual was
confined have been shattered; its universality together with
its freedom have been manifested in full bloom. Man and the
State, p152

So when the Second Vatican Council denies the state’s authority

to direct religious belief and practice, it does so on a very
traditional theological ground - that religion, just as religion, now
transcends the ends served by the coercive authority of the state:

Furthermore, those private and public acts of religion by which

people relate themselves to God from the sincerity of their
hearts, of their nature transcend the earthly and temporal levels
of reality. So the state, whose peculiar purpose it is to provide
for the temporal common good, should certainly recognise and
promote the religious life of its citizens. With equal certainty
 it exceeds the limits of its authority if it takes upon itself to
direct or prevent religious activity. Dignitatis Humanae §3,
Decrees of the Ecumenical Councils, volume 2, p1004

It is noteworthy that the soul-body union model assumes the state's

incompetence to direct spiritual matters on its own authority. This
incompetence is built into the model's conception of the state as an
earthly body unfit to meddle on its own account in matters spiritual
that are the soul’s concern. The state's giving of coercive and
juridical support to the true religion was the state’s duty standing
as body to the Church’s soul, not undertaken under the state’s own
authority. The state’s duty attached to it only as agent of the
Church, acting on the Church's authority.12 As we saw in Leo XIII,

12
There are those who oppose this implication that in legislating for religion the state can only
act as agent to the Church as principal. They often appeal to past teaching by the popes that divine
providence itself had given the state the duty to legislate and coerce on behalf of the Catholic
faith. Thus Pope Leo the Great informed the Emperor Leo that ‘you ought unhesitatingly to
consider that the kingly power has been conferred on you not for the governance of the world
alone but more especially for the guardianship of the Church’ (Letter 156). This is supposed to
establish that the state has a native right and duty, under its own authority, to legislate and coerce
on behalf of the Catholic faith. The state is not acting just as the Church’s agent, under the
Church’s authority. (My thanks to John Lamont for pressing this objection.)
But these past papal claims about a providential role and duty given to the state are in no
way inconsistent with the principal-agent model - which is why they are so often repeated or
referred to in expositions of that very model, such as in Bellarmine’s Tractatus (see, for example,
chapter 18, on the prince’s duty to protect the true religion), or in Leo XIII’s Immortale Dei itself
(see §6 for repetition of such teaching on the state’s duty). Crucially, such papal claims say
nothing about how providence gives the state this duty – whether through some authority in
religious matters native to the state, or through the authority of the Church and the providential
establishment, via baptism, of a principal-agent or soul-body relation between Church and state.
Leo XIII’s Immortale Dei clearly teaches that the principal-agent model applies; and this
is entirely consistent with the state’s lacking the duty, and even the right, to coerce on behalf of
the faith, under those (unideal) circumstances where the state is not acting as the Church’s agent.
Likewise, Bellarmine makes it particularly clear that the duty to protect the true faith belongs to
the state in the context of a soul-body union of Church and state, where the state is said to protect
the Church as the Church’s servant (see Tractatus, chapter 18, in On Temporal and Spiritual
Authority, p. 85).
If the state is to act as the Church’s agent, baptismal obligations must of course take
political and not merely private form. But this is the clear implication of canon 2198 of the 1917
Code, which, like all canonical obligation, presupposes baptism, but puts requirements
specifically on the state. See also Bellarmine: ‘In fact, since kings through baptism have subjected
themselves to the spiritual authority of the Pontiff, they are considered to have subjected also
their kingdoms and their political authority to the same spiritual authority; that is, they wanted
to be directed and corrected by the Pontiff if they have strayed in any way from the path to
salvation in temporal matters.’ Tractatus Chapter 16, in On Temporal and Spiritual Authority, p.
266 (emphases added)
the state should acknowledge revealed truth when presented with
it, as is its duty under natural law – just as this is a natural-law duty
on private individuals. But the authority to direct and coerce
religiously still belongs to the Church. It no more belongs to the
state than it belongs to private individuals.13

So the existence of a right to religious liberty against the state is

based on a very distinctive view of religion, namely that religion
as such lies outside the jurisdiction of the state. This view of
religious liberty is not a novelty of the Second Vatican Council, but
was an already established part of prior Catholic tradition. It is tied
to a view of Church and state as fundamentally different kinds of
authority, one being divine and the other human, serving
fundamentally distinct kinds of good. And the difference between
these two kinds of authority and the goods they serve is
dependent in turn on a very specific metaphysics of the natural
and the supernatural. It depends, in particular, on a theory of the
human person as metaphysically free, and free in particular in
respect of their religious belief, and as oriented towards God both
naturally, as bearing his image, and supernaturally, through an
offer of the beatific vision made through Christian revelation. This
view of liberty of religion is hardly secular in its intellectual
content. It is not surprising, then, that a process of political
secularization should have been accompanied not, as Maritain

13
In his "Dignitatis Humanae - Not a Mere Question of Church Policy: A Response to Thomas
Pink", Martin Rhonheimer accuses me of a contradiction. He argues that if, as Leo XIII teaches,
there is a natural law duty on the state to acknowledge religious truth when God communicates it
to us, "...this means that the state has also a genuine right to enforce this truth..." (see p468). So,
he alleges, it would follow that the state does, after all, have an authority under natural law to
legislate in matters of revealed religion - which, however, Leo XIII and I deny.
But what Rhonheimer alleges to follow, simply does not follow. Just because some person
or group or institution has a duty to recognize a given truth, it does not follow that on the same
basis it need have any authority of its own to enforce that truth and coerce on its behalf. This does
not follow for private individuals, nor for institutions - not even when, unlike a private individual,
that institution has a coercive authority of its own in other matters.
Unsurprisingly, given his unwarranted inference from a native duty on the state to
recognize religious truth to a native authority to enforce it, Rhonheimer is led to conclude that in
my work on religious liberty, "Professor Pink's error lies in construing Leo XIII's doctrine on
Church-state relations as a fully coherent doctrine, which it is not" p469. Leo XIII's doctrine is,
however, entirely coherent.
and Journet fondly hoped, by any renewed allegiance to this view
of religious liberty, but by its increasing rejection.

3. The secularization of religious liberty

Political secularization involves the detachment of the state from

any particular religion. This process has not left the issue of
religious liberty untouched. Political secularization has been
accompanied by a corresponding secularization of conceptions of
religious liberty. In particular the secularized state’s own
conception of religious liberty, and of religion, has become
detached from that held by any particular religion, and especially
from that held by Catholicism. This secularization of religious
liberty has proceeded at two levels.

First, the metaphysical distinctiveness of the person has

increasingly been denied, especially as regards one element
fundamental to the idea of humanity as bearing the image of God,
namely, our possession of freedom as a metaphysical power to
determine for ourselves what we do and decide. This has important
implications for the very idea of freedom as a right. The very basis
in human nature of the general right to liberty is eroded. Secondly
religion has ceased to be regarded as a distinctive part of human
life and flourishing, let alone as possessing the supernatural
orientation accorded it in Catholic Christianity. And this erodes the
basis in human nature of the right to religious liberty in particular,
at least as that right has been conceived in the Catholic tradition.

A) The denial of freedom as a power

The English-language tradition in ethics and political philosophy

has long distanced itself from any commitment to the existence of
a distinctive power of freedom. Either the very existence of the
power is straightforwardly denied, as it was by Thomas Hobbes,14
or at least the ethical significance of the power is denied, so that
rights and obligations are given some other basis. The sidelining of
metaphysical freedom was initially resisted by the continental
liberal tradition: commitment to the reality of a human power of
freedom remained an important feature of the ethical and political
theory of Rousseau and Kant. But by now even contemporary
liberalisms that explicitly celebrate Rousseau and Kant as
antecedents have largely abandoned any such metaphysical
commitment. So modern liberalism quite generally no longer bases
the right to liberty on our possession of freedom as a power.

Modern liberalism is no particular ally of ordinary intuition in this.

It is natural for us to base freedom as right on freedom as a capacity
or power. We immediately understand the right to liberty as a right
to determine for ourselves what we do. But if the right is
understood in these terms, it is hard to see how we could have
freedom as a right without freedom as a power. How could we have
a right to determine things for ourselves if it is impossible for us to
have even the capacity to determine things for ourselves – if the
right is one we must always lack the capacity to exercise?
Nevertheless, because scepticism about the power or capacity is so
general, modern political philosophy avoids basing the right on the
power. Instead modern political philosophy either refuses to base
the right to liberty on a theory of human nature at all – the theory
of our right must be political, not metaphysical – or else it seeks to
base the right simply on our capacity for reason.15 The capacity for
reason is supposedly less problematic metaphysically than the
power of freedom just because reason on its own has nothing to do
with any power on our part to determine alternatives, but simply

14
For discussion of Hobbes’s highly innovative theory of liberty and his opposition to scholastic
conceptions of freedom both as a power and as a right, see my 'Thomas Hobbes and the ethics of
freedom', Inquiry, 54, (2011), pp541-64; and my ‘Hobbes on liberty, action and free will’, in The
Oxford Handbook of Hobbes eds Kinch Hoekstra and Al Martinich (Oxford: Oxford University
Press, forthcoming).
15
For the refusal to base the right to liberty on metaphysics, see John Rawls, Political Liberalism
(New York: Columbia University Press 2011). For the appeal to the human capacity for reason,
see Philip Pettit, A Theory of Freedom (Cambridge: Polity 2001).
involves a capacity on our part to be moved by justifications.
Unfortunately, in a theory of the right to liberty, the capacity for
reason cannot substitute for the old appeal to freedom as a power
over alternatives.

Freedom as a power over alternatives does offer a plausible basis

for a right to liberty understood as a right not to be coerced, as we
can see in considering the nature of such a power and its point. The
power, as traditionally conceived, is a capacity to determine for
ourselves how we decide and act. It is a power of free will. Now
the point of taking decisions about what to do is, fairly obviously,
to ensure that we end up doing and attaining what is good and avoid
what is bad. Without that concern to attain the good, there would
be no point to bothering to deliberate and decide at all, as opposed
to blindly plumping. The exercise of freedom as a power over
alternatives shares, as a power of decision or will, the function of
the decisions it determines: to attain the good. The point of having
power over alternatives, then, is to make alternatives options that
are good available to us.

But good alternatives are of course what coercion seeks to deny us.
The one coercing, unless immediately applying chains, or making
threats that are unusually terrifying, does not actually remove
freedom as a power. It usually remains within our control to act
other than as we are directed. Rather coercion serves to remove not
alternatives as such, but alternatives that are good. Essential to
coercion, and to the pressure that it applies, is the threat of sanction,
which works by making all options bar one, the option directed,
worse. That is why our possession of freedom as a power was long
seen as creating a presumptive normative block to coercion. If we
possess a nature the point of which is to put alternative goods
within our power, there must be some justification for the
deliberate removal of those goods.

The idea of a capacity for reason does not have the same
normative implications. For that capacity’s function is not to
provide us with alternative goods, but to enable us to respond to
justifications. Coercion does not threaten or work against such a
capacity, but simply addresses it. Coercive threats work precisely
by providing us with further justifications for acting as directed –
justifications rooted in the desirability of avoiding threatened
sanctions.

The removal of metaphysical freedom from ethical and political

theory is not likely, in the long run, to enhance or reinforce
commitment to the right to liberty. A right to choose or to
determine things for oneself that has no adequate basis in any
received theory of human nature is likely to become vulnerable,
at least when it comes into conflict with other values. Where
states fall under pressure to override liberty rights in the name of
general welfare or utility, they may find the temptation to
succumb becoming harder to resist. This is an issue that is hardly
specific to religion, but concerns the future of a properly liberal
society more generally.

B) The denial of religion as a distinctive and transcendent good

Fundamental to the distinction between God and Caesar is the

thought that religion is under the authority of the Church, not the
state. But why should religion, in particular, transcend the authority
of the state?

The issue is not whether we have some right to liberty in relation

to religion. For it is true of natural goods generally, such as
education or movement and the like, that they involve rights to
liberty. The authority of the state to direct and regulate natural
goods is not unlimited. But just because education and transport or
motion are natural goods, they fall within the general jurisdiction
of the state, and so the state can regulate them, with due respect for
liberty, for the general good. State regulation will attend to the
nature of the goods regulated, and criteria of better or worse that
come with them as distinctive forms of good. Sufficiently defective
forms of education or transport may be restricted, or they may be
denied forms of state support given to less defective versions. We
have a general right to liberty in respect of where we go. But that
does not remove human travel and transport from being subject to
fairly extensive state regulation and direction. We may be called
upon by the state to sacrifice some liberty of movement if
movement itself would be better enabled, or if some other good,
such as efficient commerce, might benefit thereby.

Even if certain state decisions regulating movement might seem

unwarranted or wrong, they would not usually be criticized as
wrong on the grounds that they are an intrusion of the state into an
area of human life transcending its authority. But that is the
Catholic position in relation to religion. Not only do we have a right
to religious liberty against the state. We have that right because
religion, just as religion, transcends the authority of the state.

There is another question the answer to which, at least considered

from the secular point of view of today, is far from obvious. This
is whether religion is a distinctive kind of good at all. If it is, then
we must be able to explain why religion is a good in its own right,
and what might make some forms of religion better or worse than
others just as forms of religion. Within the Catholic tradition there
is a clear answer to this question, an answer that is based on natural
law and its accompanying metaphysics.

We can know that God exists as our creator, and that we exist as
his creation and as bearing his image through our rationality and
freedom. From this arises the intelligibility, as a distinctive and
essential part of human happiness, of the activity of worshipping
God and loving him. Good religion involves rational monotheism,
which includes loving and honouring God with public and
communal forms of worship worthy of the divine, and relatedly
worthy too of our dignity as bearing the image of the divine. Bad
or defective religion involves various kinds of failure to meet these
demands.

Because religion is a distinctive good, there may be forms of

deficiency or badness that are specific to religion. They need not
involve wider forms of badness, such as violations of just public
order that fall within the temporal concern of the state. Defective
religion may of course involve some such direct assault on public
order, such as murder through forms of human sacrifice. But
religion may be defective just as religion, such as through a
defective conception of the object of worship. Religion defective
in this way may involve polytheism, the denial of the oneness of
the divine; or pantheism, the denial of divine transcendence of the
created world; or materialism about the divinity, the denial of
God’s purely spiritual nature.

We have seen that because religion is a natural good, it might be

thought to fall within the jurisdiction of the state, exactly as do
other natural goods. On this view, at least at the level of natural
religion, the state might properly seek to support good religion over
bad. The state might favour rational monotheism just as it favours
the better forms of education and transport, especially when having
to balance various forms of religion against other goods. Overt
state approval and recognition might definitely be given to
monotheism, and to the worthier forms of monotheism at that. Such
positive support or approval would be refused to polytheism or
pantheism, even if basic liberty for them was not denied, and in
state decisions about balancing goods, such forms of religion,
being defective at the natural level, would consequently lose out.

The Catholic view, magisterially taught by Leo XIII and by the

Second Vatican Council, is that such direction of worship and the
sacred as such – direction of a specifically religious good, by
criteria specific to religion - is not the state’s concern. And what
makes this true, as we have seen, is the reorientation through Christ
of religion as such, including the naturally required worship of
God, to a supernatural end in which the state has no directive
competence.

This may be compared to the form a secular political theory might

take, taking secular to mean a theory uncommitted to any
supernatural revelation. It seems that unless the truth of
supernatural revelation is accepted, there is simply no reason for
denying the state the same authority over religion as over other
natural goods. Just as a natural-law-based state might on its own
authority regulate and discriminate in favour of better forms of
transport and better forms of education, so it might on its own
authority discriminate in favour of better forms of religion – better
being understood of course by the wholly natural criteria specific
to religion of a rational metaphysics and a rationally available
moral law. So the case put by Dignitatis Humanae for religion’s
entirely transcending state authority is unfortunately available only
to the already supernaturally converted - something with important
implications, as we shall see, for the basic coherence of Maritain’s
political theology.

Of course in our culture secularity does not mean simply lack of

commitment to revelation and the supernatural. It means a lack of
commitment to natural religion as well. It involves what, by the
standards of Catholic natural-law theory, are very serious and
fundamental forms of irrationality. Not only is human freedom
denied, but in some cases human reason is denied too, at least as
traditionally conceived. And it is in particular denied that we have
a creator who is a spiritual and intellectual, and whose image we
bear. This makes of course the very existence of religion as a
distinctive form of good highly problematic in itself, ruling out any
criteria of goodness specific to religion that might inform legal
direction and state policy. This of course is why the attitude of the
modern state to religion is so profoundly different from that
endorsed by Leo XIII or by Dignitatis Humanae. It is not just that
the secular state refuses to recognize that religion lies outside its
authority. It seeks to direct religion, but without recognizing
religion even as a distinctive natural good, assimilating it instead
to other more general categories. Religion may be understood as
one among many forms of subjectively fulfilling personal
commitment, like a sport or a hobby.16 Or religion might be
assimilated to a form of group identity, along with expressions of

16 Or, to similar effect, wider forms of personal commitment may be redefined as ‘religion
properly understood’: see Ronald Dworkin Religion without God (Cambridge, Massachusetts:
Harvard University Press 2013), where religion is reduced to a form of commitment to value.
ethnic and cultural identity generally.

The effects of denying religion as a distinctive good on state policy

towards religion are significant. The state may in some cases still
mimic respect for the limits to its authority taught by Immortale
Dei and Dignitatis Humanae. The state will not on its own
authority seek to discriminate in public policy against polytheism
or pantheism. But that is not because it sees these as forms of
religion that, though defective as religion, lie beyond its authority.
Rather the state is likely to hold back on the basis of quite a
different ideology. It will see these forms of religion just as
varieties of personal commitment, or of cultural or group identity,
and then base its noninterference on that stock-in-trade of modern
liberal theory: the state’s duty to show equal respect to citizens.

On the other hand, because religion is not regarded as a distinctive

good in its own right, but is just another case of a wider range of
goods that clearly are legitimately subject to state direction and
regulation, the state will in more fundamental respects disregard
the limits to its authority set by Immortale Dei and Dignitatis
Humanae. Religion will be assimilated to other natural goods that
do clearly fall within the general jurisdiction of the state, such as
sports and hobbies or modes of collective cultural affirmation.
Moreover the state need not recognize churches and other religious
bodies as different from any purely civic collective, like clubs or
cultural unions. The very distinction traditionally made by the ‘two
realms’ theory between Church and state - between authority in
spiritual form and authority in temporal form - will disappear along
with the disappearance of religion as a distinctive good.

There can still be a right to liberty of religion, but this will be no

different from a general right to be left free to pursue personal
values or commitments, or no different from a general right to
respect for personal or group identity. The modern liberal
requirement that the state show equal respect to all its citizens may
protect much religious belief and practice from state interference.
If religion is just one among many forms of identity or commitment
it may even receive some government support. There need be no
rigid refusal of state support for religion as such. But if religion no
longer transcends the directive competence of the state as
something distinctive, it may also be subject to government
interference. The exemption of religious institutions from various
forms of equality legislation regarding gender or sexual orientation
may no longer be made, any more than it can be relied on for
societies or clubs. The state may perfectly well eventually interfere
with religious instruction, or even in the nature of religious
ministry, in the name of defending an equal respect for all.

These are not mere possibilities for the future. The secularization
of religious liberty is already well underway. Hence we read in the
work of a contemporary political and legal philosopher:

If religion really is only a sub-set of a broader class of beliefs,

identities or practices, which should be treated on a par with
them, then large areas of existing law (which carve out special
protections or special prohibitions for religion) become
normatively indefensible. Fortunately, normative
philosophers, by contrast to legal scholars, are not beholden
to constitutional coherence. So they can bite the bullet and
argue that the special treatment afforded religion qua religion
in the law has lost any normative purchase in contemporary
society. This would allow them to explain away constitutional
tenets such as the special ban on state aid to religion and the
ministerial exception as archaic remnants of the discredited
‘two-realm’ theory. Instead, they would start from the idea
that the liberal state must be decidedly post-secular and take
account of the deep pluralism of values, ideas and identities,
both religious and non-religious, in contemporary societies.
Cecile Laborde 'Equal liberty, non-establishment and
religious freedom' Legal Theory (forthcoming)

4. Magisterial teaching and its theology

Maritain and Journet presented political secularization as

something progressive – as implied, ultimately, by the very
distinction between spiritual and temporal:

The modern age is not a sacral, but a secular age. The order of
terrestrial civilization and of temporal society has gained
complete differentiation and full autonomy, which is
something normal in itself, required by the Gospel's very
distinction between God's and Caesar's domains.

The Leonine ideal of soul-body union, though conceded to be

strictly consistent with the distinction between spiritual and
temporal, was criticized by Maritain and Journet as realizing the
distinction only imperfectly, and as associated with a merely partial
understanding of it. With political secularization, supposedly,

the distinction between temporal and spiritual things has

gradually been made clearer, and is today obvious to all.

But the Maritainian view of political secularization has not been

confirmed by history. Political secularization has been associated
not with better understanding of the distinction between spiritual
and temporal, but with that distinction’s intellectual and political
erosion.

Maritain hoped that religion's character as a distinctive and

transcendent good would be respected even by states that did not
publicly recognize and endorse the traditionally Catholic doctrines
of the natural and the supernatural that explained that character.
But Maritain's hope has not been fulfilled. This should not indeed
be a surprise. It is clear that the Maritainian project was doomed
from the start, for the very idea of religion as a distinctive good that
transcends the authority of the state depends on the availability and
truth of religion in supernatural form, a form that reorients religion
as a whole towards an end transcending the natural happiness that
is the state’s concern. As Maritain admitted himself, it was the
revelation of Christ that removed religion from the directive
competence of the state:

From the advent of Christianity on, religion has been taken

 out of the hands of the State; the terrestrial and national
frameworks in which the spiritual was confined have been
shattered.

Religion will only be publicly acknowledged as a good

transcending state authority by those states that also publicly
acknowledge the supernatural end, that is, the truth of religion in
supernatural form. But that requires the very state recognition of
revealed truth that the Leonine model of soul-body union defended
as an ideal and that political secularization now discourages. As
states detach themselves from any public recognition of revealed
truth, so we should expect those same states increasingly to view
religion as falling as much within the jurisdiction of the state as any
other area of human life. And the policy of modern states, liberal
states included, moves steadily in that direction.

Political secularization has also been associated, as we have seen,

with a denial of religion as a distinctive kind of natural good. This
too should not be surprising. The Leonine model of soul-body
union in fact predicted such a development, as a possibility at least.

In a fallen world we cannot reliably attain the natural end without

the help of divine grace. Grace is required not just to sanctify but
to heal. We need grace not only as gratia sanctificans to raise us to
a supernatural level but, even before that, as gratia sanans to repair
the damage done to human nature by the Fall. Without such grace
we can no longer reliably attain a complete conception of the
content of the natural law, let alone reliably adhere to it.17 Reliably
to understand and attain even the natural good we now need the
special help of divine grace – the grace provided to a fallen world
by the Church and her sacraments. Thus one of the reasons there
should be Church-state union, as Leo XIII magisterially taught, is
that the state needs to be civilized at the level of nature, through
being informed by a higher and supernatural authority, namely, by
the soul of the Church. In Immortale Dei Church-state union is
17
See for example Thomas Aquinas, STh 1.2, q. 109, a. 2: Utrum homo possit velle et facere
bonum absque gratia (Whether man can will or do good without grace)
celebrated by Leo XIII as providing just such a civilizing influence.
The encyclical begins:

Though the Catholic Church, that imperishable handiwork of

merciful God, by her very nature has as her purpose the
saving of souls and the securing of happiness in heaven; yet,
in regard to things temporal, she is the source of benefits as
manifold and great as if the chief end of her existence were
to ensure the prospering of our earthly life. Immortale Dei §1
These benefits come about through the establishment and juridical
favouring of Christianity, and so especially Catholicism, as the
religion of the state:

And, lastly, the abundant benefits with which the Christian

religion, of its very nature, endows even the mortal life of
man are acquired for the community and civil society. And
this to such an extent that it may be said in sober truth: ‘The
condition of the commonwealth depends on the religion with
which God is worshipped; and between one and the other
there exists an intimate and abiding connection.’. . . There
was once a time when states were governed by the
philosophy of the Gospel. Then it was that the power and
divine virtue of Christian wisdom had diffused itself
throughout the laws, institutions, and morals of the people,
permeating all ranks and relations of civil society. Then, too,
the religion instituted by Jesus Christ, established firmly in
befitting dignity, flourished everywhere, by the favour of
princes and the legitimate protection of magistrates; and
Church and state were happily united in concord and friendly
interchange of good offices. The state, thus constituted, bore
fruits important beyond all expectation, whose remembrance
is still, and always will be, in renown, witnessed to as they are
by countless proofs which can never be blotted out or ever
obscured by any craft of any enemies. Immortale Dei §§19-
 2118
A central magisterial teaching of Leo XIII is that the state as body
should be informed by the Church as soul, not only to serve the
supernatural end, but to serve the natural end as well.19

In so far as political secularization detaches the body of the state

from the soul provided by the Church, so it limits the transmission
not only of sanctifying grace but healing grace as well, and
diminishes that civilizing influence. In particular political
secularization is likely to diminish grasp of the natural law at the
level of the state itself, as we are now witnessing in matters
concerning the defence of life and marriage. As Pius IX already
observed:

…where religion has been removed from civil society, and the
doctrine and authority of divine revelation repudiated, the

18
This teaching does not imply that all forms of state establishment of Catholicism have been
benign, for not all have corresponded to Leo XIII's ideal. One form, especially common since the
Reformation, and highly problematic in its effects on Church and state alike, clearly has not. This
is ancien regime Gallicanism or various kinds of 'state' or 'national' Catholicism. This form of
establishment is highly damaging insofar as it reduces the Church to acting as, in effect, an agent
of the state - rather than the state acting in specifically spiritual matters as genuinely the agent of
the Church. This form of establishment is obviously not Leo XIII's model, but its opposite.

19
The magisterium has long taught that in a fallen world the natural good served by the state
depends on the state’s adherence to and support for the Catholic faith: for some further
examples of such teaching see, for example, Gregory XVI, Mirari Vos, §§14 and 20, and Pius XI,
Ubi Arcano Dei Consilio §48. But if the state serves the natural good, and the natural good
depends on the Catholic faith of its people, does that not show that the state must have a native
authority to legislate on behalf of the Catholic faith? (My thanks again to John Lamont for
pressing this point.)
The supposed conclusion does not follow. The natural good served by a state can often
depend on matters outside that state’s jurisdiction; in which case the state must support or
cooperate with whatever other authority does have the required jurisdiction. The natural
happiness of the population may depend on the international economy, which is largely outside
the jurisdiction of any particular state; this is why states have to cooperate in economic matters
with other states. Similarly, in a fallen world, the natural happiness of a people will depend on
the provision of healing grace through the Church, and so on religious arrangements over which,
as Leo XIII clearly teaches, the state has no jurisdiction of its own. If it is to attain its natural end,
the state as body must therefore recognize the spiritual authority of the Church as soul, and
subject itself to that.
 genuine notion itself of justice and human right is darkened
and lost… Quanta Cura §4

Leo XIII developed the point. United to the soul that is the Church
and under the Church's direction, the state must help the Church to
bring us to our supernatural end, because otherwise the state will
likely fail in bringing us even to our natural end:

Therefore the law of Christ ought to prevail in human society

and be the guide and teacher of public as well as of private
life. Since this is so by divine decree, and no man may with
impunity contravene it, it is an evil thing for any state where
Christianity does not hold the place that belongs to it. When
Jesus Christ is absent, human reason fails, being bereft of its
chief protection and light, and the very end is lost sight of, for
which, under God's providence, human society has been built
up. This end is the obtaining by the members of society of
natural good through the aid of civil unity, though always in
harmony with the perfect and eternal good which is above
nature. But when men's minds are clouded, both rulers and
ruled go astray, for they have no safe line to follow nor end
to aim at. Tametsi futura §8

Not only is political secularization imperiling public understanding

of natural justice and right, it is eroding public recognition of the
very distinction between the spiritual and temporal. As we have
seen, the idea of religion as a distinctive natural good requires
respect for natural law and, in particular, an understanding of
human nature as bearing the image of God as its creator. That basic
understanding is no longer common property; indeed, it has
effectively disappeared from political life.

Why should a state that fails to acknowledge supernatural

revelation, and that is increasingly detached from much of the
content of natural law, and especially the content most concerned
with our nature as bearing the image of God, continue to respect
religion as a distinctive good? Or as Leo XIII might have put it:
why should a body detached from the soul continue to understand
and respect those higher ends with which the soul is concerned?

Leonine soul-body theology fully distinguishes between God and

Caesar, and respects the state's autonomy in temporal matters as
opposed to spiritual. But the body is not to interfere in matters
spiritual in disregard of the direction and authority of the soul –
direction that in a fallen world would be necessary. This is why Leo
XIII thought that soul-body union, far from endangering a proper
understanding of the distinction between God and Caesar, between
the spiritual and the temporal, is required to ensure respect for that
very distinction. Assurance of the state's respect for the distinction
between God and Caesar only comes from the state's public
recognition as true of a divine revelation which teaches that very
distinction and with it the nature of religion as now a transcendent
good - a distinctive form of good transcending the authority of the
state – and from the influence on the political community of grace
and instruction provided by Church as the state’s directive soul in
matters spiritual.

Dignitatis Humanae addresses the directive role of the state in

matters of religion in a context where the state is clearly no longer
a political community of the baptized, and is, therefore, no longer
capable of acting as an agent of the Church. Since the state is no
longer functioning as the Church’s agent, it must lack any
authority, even the borrowed authority of the Church, to direct in
matters of religion. So, since the state is no longer acting as the
Church’s agent, our free will gives us a moral right not to be
coerced in matters of religion by the state, exactly as Dignitatis
Humanae teaches, and as Leo XIII’s earlier magisterial teaching
already implied.20 The ending of soul-body union between Church
and state is probably irreversible – at least within any political and
social future conceivable under modern conditions. The state will
therefore continue to function detached from any agency
20
For the development in more detail of this argument see Pink, ‘The interpretation of Dignitatis
Humanae: a reply to Martin Rhonheimer’ Nova et Vetera, (English edition), 11, No. 1 (2013):
pp77–121.
relationship to the Church. This, then, is the basis on which
Dignitatis Humanae addresses the legitimacy of state intervention
in religious matters. The declaration provides the framework for
understanding the legitimacy of state activity in the religious
sphere for the foreseeable future. The declaration binds to the
extent that it expresses for our time what Catholic tradition, as
magisterially taught by Leo XIII, already implied for state authority
once political secularization is assumed and the state has ceased to
act as an agent of the Church.

What Dignitatis Humanae does not explicitly address is the

legitimacy (at least under past circumstances) and still less the
point, of a union between Church as principal in matters spiritual
and a publicly Christian state as her agent. In other words, the
declaration does not explicitly address Leo XIII’s magisterial
teaching on the desirability of a soul-body union of Church and
state. This is because the declaration does not address what was
central to that teaching: the authority that the Church’s mission
gives her over the baptized. Central to the Church’s instrumental
use of the Christian state as her agent in spiritual matters are the
obligations to the Church, at least under past conditions, of such a
state’s baptized rulers and officials. In treating soul-body union as
an ideal, the Church has taught that, because of the nature of her
mission, baptismal obligations may take political form and may
include an obligation on state officials to act as the Church’s
secular arm.21 The credibility of soul-body union as a Christian
ideal depends on the truth of that past teaching about people’s
possible obligations under baptism to the Church. But Dignitatis
Humanae does not specify what people’s obligations to the Church
may come to – except, and this is of crucial importance, expressly
to declare that it leaves integer or untouched traditional Catholic
teaching about those obligations.22 In leaving intact all that past
21
For that teaching, see again, canon 2198 of the 1917 Code; the highly authoritative magisterial
tradition, involving a number of general councils, that preceded that canon and that was cited by
the 1917 Code in its support; and also Bellarmine’s theological treatment of such political
obligations, based on and citing the same magisterial tradition, in the Tractatus.

22
‘Indeed, since people’s demand for religious liberty in carrying out their duty to worship God
concerns freedom from compulsion in civil society, it leaves unchanged (integram) the
teaching, Dignitatis Humanae therefore leaves intact the Leonine
model too. The declaration simply develops what follows from
traditional Catholic teaching for state authority if the Leonine ideal
cannot in fact be realized, and the state is no longer acting on
Church authority as her religious agent.

Should we follow Maritain, and no doubt many of the fathers of

the Second Vatican Council, and still view political secularization
as a progressive phenomenon, so that a juridical separation of
Church and state is a positive good and the new ideal for Church-
state relations? Or should we see political secularization as highly
problematic, but as also, at least in our time, unavoidable, so
presenting the regrettable but practically inescapable modern
context within which the Church must now pursue her mission?
This has to do not with what Dignitatis Humanae directly teaches
– which is the current wrongfulness of state and civic involvement
in the direction of religion - but how we should incorporate that
teaching in a wider political theology.

When considering this question, there are two things to be

remembered. First, the Leonine model of soul-body union as a
continuing ideal, even under conditions of modernity – the very
conditions under which Leo XIII was still defending the model - is
clear magisterial teaching, as Maritain’s progressive theology is
not. Moreover, it is teaching that the magisterium has not formally
and explicitly contradicted. Leo XIII’s theology has therefore a
continuing claim on Catholic belief. Secondly, as we have seen, the
political secularization that Maritain viewed as the work of the
Gospel has instead proved spiritually destructive. In particular it
has proved incapable of meeting that basic condition (understood
by Maritain himself to be basic) of any ideal of Church-state
relations, namely, the ensuring of continued recognition by the
state of the identity of religion as a distinctive and transcendent

traditional catholic teaching on the moral obligation of individuals and societies towards the
true religion and the one Church of Christ.’ Dignitatis Humanae §1 in Decrees of the Ecumenical
Councils, volume 2, p1002
good. This is a failure that the Leonine model and its theology was
well able to predict. Soul-body union may not now be feasible, but
the Leonine soul-body theology still applies to our situation,
explaining the modern state's failure to respect and even understand
the distinction between spiritual and temporal. The state flails
about in matters spiritual, uncomprehending of their true nature,
like a body barreling about detached from its intellectual soul.

Magisterial teaching has sometimes been linked at the time of its

appearance to a received or official theology from which that
teaching had subsequently to be detached. The received theology
linked to the teaching was not itself magisterially taught, but still
profoundly shaped and governed the initial interpretation of that
teaching, both by adherents to that teaching and opponents of it.
Indeed, one effect of the linked theology may have been to fuel
opposition to the teaching. The teaching was not properly
understood because so commonly read, by all parties, through the
received theology – a theology that, because in fact problematic,
seriously damaged the teaching’s credibility. In such cases the
process by which the teaching was finally accepted will have
involved, as an essential stage, its detachment from the faulty
theology that was blocking its acceptance.

One such example is Boniface VIII’s Unam Sanctam and its still
binding magisterial teaching on papal primacy and the necessity
for salvation of the recognition of that primacy. At the time of its
promulgation that document was closely associated with a political
theology that was hierocratic - that asserted a direct and supreme
papal temporal authority over the earth.23 This theology was not
formally and explicitly taught by Unam Sanctam itself, but was
read into it by papalist theologians of the school of Aegidius
Romanus, and also by their opponents, such as theologians
supportive of Philip the Fair of France. This hierocratic theology
helps explain much of the (literally) violent opposition to Boniface
VIII. The hierocratic theory also remained a theology official
23
On the hierocratic theory see Michael Wilks, The Problem of Sovereignty in the Later Middle
Ages (Cambridge: Cambridge University Press 1963)
enough in Rome still to cause problems with ecclesiastical
authority for later Catholic theologians who too openly rejected it.
Even as late as 1590 the eminent Cardinal Bellarmine narrowly
escaped official condemnation, from Sixtus V, for denying the
hierocratic conception of Church and state. Bellarmine was saved
from being placed on the Index by the pope’s death.24 But this
hierocratic theology, though for a time officially favoured, was
never formally adopted by the magisterium, and was eventually
rejected by it. The hierocratic theory is quite incompatible with the
sovereignty and autonomy of the state in temporal matters that
Bellarmine and Suarez each defended, and that Leo XIII taught in
Immortale Dei.

Maritain’s progressive view of political secularization is a theology

that bears a similarly problematic relation to Dignitatis Humanae.
It is a theology of Church and state that has long informed much
interpretation of the Second Vatican Council’s declaration, by
supporters and opponents alike. But it is also a theology from
which the strictly magisterial content of Dignitatis Humanae has
urgently to be detached. That detachment is so urgent and so
necessary first because Maritain’s theology is hard to reconcile
with the previous magisterium. Despite his determined attempts to
avoid the issue, his theology is clearly opposed to the teaching of
Leo XIII. Because of that fact, Maritain’s framing interpretation
has helped generate the widespread view that Dignitatis Humanae
indeed cannot be reconciled with the previous papal magisterium,
but contradicts it. If Dignitatis Humanae is read as actual
magisterial endorsement of the view that political secularization is
indeed a progressive ideal and a requirement of the Gospel, then
that certainly implies a rupture within the magisterium. For that is
what Leo XIII very clearly and deliberately denied.

This appearance of rupture is very serious because it tends to

discredit the Second Vatican Council itself and to block its
reception. This is because of a second and very compelling reason

24
See Stefania Tutino, Empire of Souls: Robert Bellarmine and the Christian Commonwealth
(Oxford: Oxford University Press 2010) pp. 67-70.
for detaching Dignitatis Humanae from Maritain’s theology. The
theology, with its sunny optimism about political secularization
and its consequences, is by now quite unbelievable. It is
increasingly obvious that the secular state will never be respectful
of the Church’s mission on the terms required by Immortale Dei
and Dignitatis Humanae alike. The more the state is secular, the
less the possibility of a shared vision of religion as a distinctive
good transcending state authority, a vision that leaves a politically
undisputed public space for the Church’s mission. Without that
shared understanding of the good of religion, an understanding that
depends on some form of political recognition of the truth of
revealed religion, there can no mutually acceptable articles of
peace between Church and state.

What is the Catholic doctrine of

religious liberty?1
(Expanded version 15 June 2012)

Thomas Pink

Part I: Religious liberty at Trent and Vatican II

1. From a primacy of jurisdiction to the dignity of the person

In 1965 the Second Vatican Council is commonly taken to have

asserted, in the declaration Dignitatis humanae, a universal moral
right, based on the dignity of the human person, to a complete
freedom from coercion in respect of religious belief; and a further
right to freedom from coercion in the public practice of religion,
this right being subject only to the just limits of public order. Is the
decree so understood a consistent development of earlier Catholic
teaching on religious liberty; and is this common or conventional
understanding of the declaration a correct reading of it?
There has been a controversy about the declaration ever since its
passing. The debate has focussed on the public practice of religion,
and on the consistency of Vatican II's teaching with that of the
nineteenth century popes, such as Pius IX and Leo XIII. Those
termed conservatives, such as most recently Cardinal Dulles,2
claim a consistent development: though the assertion of an actual
right not to be coerced from the public practice of non-Catholic
religions is admitted to be new, this assertion is presented as
entirely consistent with and a legitimate development of earlier
teaching. Whereas liberals and traditionalists regard the teaching
of 1965 as inconsistent with the earlier papal teaching, which
seems to have required that Catholic states restrict the public
practice of false religion.
Why all this concentration on the issue of the coercion of public
religious practice as opposed to the coercion of belief; and why
concentrate on the relation of Dignitatis humanae to nothing much
earlier than nineteenth century papal teaching? The answer
commonly given is that prior to the French Revolution there was
little formal magisterial teaching directly on religious liberty; while
post-Revolutionary papal teaching seems mainly concerned with
restrictions on the public practice of non- Catholic religions, and
not with the coercion of belief.3

Nevertheless, there was a long-standing Catholic theological

consensus on religious liberty and coercion that preceded the
nineteenth century papacy, and which was as much concerned with
the coercion of religious belief as with that of public religious
practice. This consensus was systematized after Trent by writers
such as Robert Bellarmine4 and Francisco Suarez5 from the earlier
medieval views of Aquinas6 and others; and it must be a mistake
for modern discussion of religious liberty to neglect it. For this
medieval and counter-reformation view was endorsed and
maintained for centuries at the highest levels of the Church, and
informed the work of leading canonists until the twentieth century.
Not only that, but, as we shall see, central parts of the view were
asserted by the Conciliar magisterium, at Trent. This view of
religious liberty, especially the interpretation of it given by
Bellarmine and Suarez, is referred to as a touchstone of orthodox
teaching on religious liberty by pillars of nineteenth century
orthodoxy such as Cardinal Manning, Bishop Ketteler of Mainz
and the leading Roman canonist Cardinal Tarquini.7

So it is of great interest and importance to determine the relation

of this medieval and counter-reformation view both to the official
teaching and theology of the nineteenth century and to the teaching
of Dignitatis humanae. Taking the period from Trent to the present,
has Catholic theology and teaching on religious liberty, though
perhaps developing, remained at least consistent; or has there been
actual inconsistency and so discontinuity, and if so at what level is
the discontinuity to be found?

Catholic reflexion on a specifically religious liberty emerges from

a broader concern with liberty itself. And it is very important that
there has been one distinctive and consistent element to this
Catholic teaching and theological reflexion on liberty in general.
This is the doctrine that humans possess a metaphysical freedom -
a free will that gives them some right not to be coerced. What does
seem to change, and profoundly, at least at the level of non-
magisterial theological discussion, is the view taken of what this
right not to be coerced amounts to, and how it is generated by our
metaphysical freedom. I shall argue that theological opinion within
the Church has tended to move from a view of this question that is
explicitly jurisdiction-centred towards a view that is, at least in
rhetorical tendency, person-centred. And to the extent that this
move has occurred, it does not seem to involve any consistent
development. For the two intellectual models are profoundly
opposed. There is no consistent development that would take us
from a jurisdiction-centred model of liberty to a person-centred
one.

For medieval and counter-reformation thinkers, the right of a

person not to be coerced in matters of religion is variable, and
depends on what kind of juridical authority is behind the coercion,
and also on whether the person falls under that authority's
jurisdiction. Whereas on the person-centred view the right not to
be coerced is uniform in relation to all kinds of authority, being set
directly, without any intervening juridical considerations, by the
metaphysical freedom and dignity of the human person. In
particular, liberty of belief is taken to be inviolable as for medieval
and counter-reformation thinkers it was certainly not.
The person-centred view of religious liberty is surely the view of
today's secular liberalism. And it has to be admitted that Catholic
theology and even magisterial teaching has tended over time to
shift in its expression towards the person-centred view - and
certainly away from any very explicit endorsement of the pre-
modern jurisdiction-centred view. This is a significant shift - but it
arguably begins well before Vatican II. The theology or teaching
of Cardinal Manning, of Bishop Ketteler or of Leo XIII is already
beginning to express itself in terms that are naturally read as
embodying key elements of the model of religious liberty presented
in the common or conventional understanding of Dignitatis
humanae. It looks then as though the post- conciliar debate has
been far too narrow in its focus. The real issue may not be the
alleged clash between the nineteenth century popes and Vatican II,
but rather the relation of the modern church to the church of the
middle ages and counter- reformation, with the nineteenth century
that modern traditionalists are prone to canonise being a way-
station well on the way to modernity. While this discussion cannot
resolve the post-conciliar debate, it does at least seek to widen it,
putting nineteenth century magisterial teaching and theology in a
broader historical context.
The jurisdiction-centred view may well prove immediately
unattractive to many modern Catholics. In the restrictions on
individual religious liberty that it licenses, it actually goes very far
beyond the state restriction on the public practice of non- Catholic
religions that traditionalists may still want to endorse. It cannot be
said that any significant group within the modern church, even at
the traditionalist end, would readily express or endorse the
jurisdiction-centred view in its pre-modern form.8 But we still need
to understand the content of the jurisdiction-centred view on its
own terms, as well as the unchallenged position this view once
held, for a very long time, among the bishops and theologians of
the Catholic Church. In particular, it is of the first importance that
the jurisdiction-centred view in its original medieval and counter-
reformation form not be watered down and confused with the far
less stringent presentations of the question of religious liberty that
date from the nineteenth century. For only when this is done will
the full depth of the problem of doctrinal continuity in this area be
understood, and a final solution to the problem be worked out.

There is one reason in particular why the jurisdiction-centred view

has to be clearly identified and understood. Many in the modern
Church may be reluctant to express or even clearly acknowledge
the jurisdiction-centred view; indeed we shall later see plentiful
evidence of a widespread culture of denial even about the Church's
past espousal of the view, a culture of denial that includes very
eminent traditionalists and conservatives alike. But nevertheless
the jurisdiction-centred view may not only be a central feature of
the Church's past; it may still be binding on modern Catholics. For
if Vatican II appears, at least on a conventional understanding of
Dignitatis humanae, to endorse the person-centred view, it will
become evident that the Council of Trent clearly endorses the
jurisdiction-centred view. Moreover the (apparently) competing
Conciliar teachings are not evenly balanced in their authority. The
teaching of Vatican II is that of a pastoral declaration that eschews
any direct claim to its teaching being a dogmatic exposition of
revelation. While the teaching of Trent seems to be de fide teaching
of a dogmatic council on a matter of divine revelation - and in a
field, on the obligations of the baptized, where Vatican II's
declaration actually subordinates its own teaching to that of
previous Catholic tradition.
This means that the force and interpretation of Dignitatis humanae
is thrown open. The conventional understanding of Dignitatis
humanae may be quite wrong. When integrated into the rest of the
Church's teaching, to which the declaration itself refers and to
which it expresses total fidelity, Dignitatis humanae may be very
far from the doctrinal canonisation of the modern person-centred
view of religious liberty that it is commonly taken to be. Indeed the
availability of that person-centred view as an option for Catholic
orthodoxy is left in doubt. The dogmatic teaching of the Catholic
Church may well not allow for the existence of an absolute right of
the person not to be coerced in religious belief or practice - a right
that is supposed to apply unqualifiedly and equally to all, being
determined, as the person-centred view supposes, immediately and
directly by their human dignity.

2. Freedom of will and liberty of religion

At all times Catholic views of religious liberty have taken as basic

the reality, defended by the Council of Trent, of human free will as
a power giving us control over how we decide and act, and over
what, at the behest of our own decision, we religiously believe.9
The act of faith in Christ that begins our justification, though the
work of divine grace, must in particular also be an exercise of our
metaphysical freedom - of our power to determine for ourselves
what we believe.

What then of religious liberty? Given our metaphysical freedom,

can religion legitimately be coerced? A classic statement of the
jurisdiction-centred view is given by Suarez, whose account, in
fundamentals, is really a development of and commentary on the
earlier teaching of Aquinas.
For Suarez, baptism constitutes entry into the jurisdiction of the
Church. Such a change of jurisdiction requires a metaphysically
free act of commitment both to Christian practice and to Christian
belief - whether, in the case of adult baptism, an act of the person
baptized or, in the case of children, an act performed on their behalf
by their godparents - and this act ought not to be coerced. But once
baptism has occurred then, given that the person baptized is subject
to the jurisdiction of the Church, they have no right to leave. For,
as Aquinas had taught earlier, the Church has a juridical right to
hold those subject to her to their baptismal commitment, and to do
so, when necessary and practicable, through coercion or
compulsion:
Others in truth are infidels who at some time received and
professed the faith: as have heretics and apostates. And these are to
be compelled, even physically [corporaliter], to fulfil what they
promised and to hold what once they received. Aquinas Summa
Theologiae 2a2ae q10, a8, resp.

Aquinas's conception of the coercive enforcement of a

commitment or obligation is entirely representative of the Catholic
tradition.10 That is, an obligation is enforced coercively insofar as
it is accompanied by the threat of penalties for its breach, with the
intention that fear or dislike of the penalties motivate into
conformity those who might otherwise have disregarded the
obligation. The penalties are being threatened with the intention of
pressuring into conformity those who might not otherwise be
inclined to conform. The penalties may be physical or corporeal if
their penal and dislikeable nature involves the threatened loss of
some temporal or earthly good.

In Suarez's view, as in Aquinas's, coercive pressure can be applied

not just to direct external religious practice, but also to constrain
inner belief. That is, the Church can properly use the threat of
penalties and punishments to influence, over time, not only what
people externally do, but what they believe. This may seem
remarkable to us. For nowadays, since the Enlightenment and in
great part due to the work of writers such as Hobbes and Locke, we
incline to think that religious belief is not only sacrosanct de iure,
but anyway impossible for authorities to coerce de facto. Hence the
issue of religious liberty is now seen almost entirely as an issue
about public cult and practice.
But this view of what it is de facto possible for authorities to coerce
may well be naive. For it is difficult to maintain a religious
conviction without in some way expressing it; and the coercion of
external action, and centrally that of speech and expression,
through threats of penalties, especially when the pressure is
pervasive and relentless, may often constitute over time a very
effective coercion of inner belief. In the early modern period
decades-long state coercion did change once believing Protestant
populations into Catholic, and vice versa. Not only could the
passing on of beliefs to future generations be discouraged.
Individuals could be pressured and weaned into abandoning their
own beliefs over time, as the psychological cost to them of
maintaining, in the face of much surrounding contrary opinion and
propaganda, a perforce almost wholly unexpressed inner allegiance
began to mount: witness the highly effective state strangulation in
the early modern period of an initially widespread English Catholic
recusancy. Certainly, Suarez and other Catholic thinkers of his day
supposed it very possible, at least over time, for authorities to
coerce belief as well as practice. Moreover, in Suarez's view
authorities could coerce people without actually removing their
freedom - their basic and continuing control over their belief and
action.

The act of faith is indeed for Suarez a metaphysically free act - an

act of the intellect commanded by a free will. But acts can be
coerced, while still remaining metaphysically free or subject to the
agent's power of control. Suppose it is only the threat of
punishment aimed at discouraging lawbreaking that motivates
someone to conform to a law. Their act counts then as coerced,
since the act is one they would initially have preferred not to have
to do; it is performed by them only because they have been
subjected to a serious threat. But the act may still be free; it can still
have remained up to the agent whether to risk the punishment and
break the law or to avoid the punishment and conform. The law
may have coerced them - but only as a punitive influence, not as a
necessitating determinant robbing them of all control. So acts can
be free, but still coerced; and acts of faith or willed or voluntary
belief- formation are not seen as any exception. Moreover, not only
is, over time at least, the coercion of people's belief possible; in
Suarez's view, such coercion might under certain conditions be
perfectly justified - as in the case of errant baptized Christians, the
heretics and apostates:

The major premiss of this argument may be proved, first of all,

from the example of heretics, on whom the Church imposes the
faith. Suarez De fide disputation 18, section 3 para3
Suarez goes on to argue that the use of punitive coercion to
motivate the act of faith in heretics is perfectly consistent with the
metaphysical freedom required for faith. Otherwise laws and
punishments could never be used to direct metaphysically free
action - which they can:

“And further we say free is to be understood in two ways, meaning

either free from the natural necessity (necessitate naturali) which
is to be found in a naturally acting cause, or free from moral
necessity (necessitate morali), that is from some obligation to act.
The first kind of necessity is inconsistent with the act of faith...but
in truth penal coercion [the threat of punishment] does not impose
this kind of necessity, as is self-evident, and so is not inconsistent
with the freedom required by faith; on the contrary, it aids that act,
by leading the person to believe freely; and though at the beginning
such coercion may appear in some way to diminish the indifference
involved in freedom, nonetheless it leaves the act still strictly free,
and it is less bad to believe through such coercion than not to
believe at all. And then the pressure usually gives understanding,
so that now the person believes with a perfect freedom. And if
sometimes conversions are only simulated, that is accidental and
because of human evil, and is put up with to avoid greater evils.
Whereas in the second way of understanding freedom, faith is not
free, especially not in the baptized, who in this differ from the non-
baptized. Even in the latter faith is not altogether free, as they are
obliged by divine precept to receive the faith; but this is only an
obligation in respect of God. But in truth the baptized are under an
obligation both to God and the Church by reason of baptism, and
therefore can specifically be compelled by the Church to remain in
the faith or to return to it”. Suarez, De fide disputation 20, section
3, para1711

So if entry into the faith by non-Christians cannot rightly be

coerced, that is not simply because of the metaphysical freedom of
the act of faith. Indeed, in Suarez's view, in one respect the opposite
is true. The metaphysical freedom of the act of faith is actually part
of what makes coercion of the act of faith licit in those cases where
such coercion is justified. For penal coercion, when legitimate,
involves the threat of just punishments - of penalties which, if
applied, would be applied deservedly. And penalties can only be
inflicted deservedly on those who are genuinely in control of and
so responsible for whether they act in ways that would incur the
penalties. Metaphysical freedom is not a simple block to the licit
coercion of belief for Suarez, but part of its very basis.
It is not the metaphysical freedom of the act of faith alone that, for
Suarez, blocks its coercion. The obstacle is jurisdictional. Coercion
into the faith, to be legitimate, requires that the coercing power
possess the appropriate jurisdiction over the coerced, a jurisdiction
involving obligations of fidelity to the coercing power, and
authority on the part of the power to enforce those obligations.
Only the baptized have moral obligations of fidelity to the Church
as well as to God - moral obligations which the Church is then
entitled to enforce. So while coercion into the faith of the
unbaptized might be perfectly possible and consistent with their
metaphysical freedom, and indeed might prove to their eternal
benefit, it would lack warrant. Without baptism the Church lacks
the moral right to coerce belief.

Notice from the paragraph of Suarez just quoted that the

obligations of the baptized are very clearly in respect of belief and
not just in respect of external action. Moreover these obligations in
respect of belief in particular are to the Church as well as to God,
and the Church has a right to compel their fulfilment. Suarez is
attributing to the Church a coercive jurisdiction over the belief as
well as the external action of the baptized. True, the jurisdiction of
the Church is only engaged when one of the baptized has in some
way expressed their infidelity, such as through the assertion of
some heresy. For until then the heresy is unknowable to other
humans, and so not judiciable by the courts of the Church.12 But
once expressed, the offence is specifically in respect of belief, as a
failure to meet an obligation to faith, and coercive punishment is to
be applied by the Church to pressure the offender into right belief
- the faith to which the person is obligated through their baptism.
Great emphasis is put on the Church's right to impose penalties that
are temporal as well as spiritual. Not only can the Church punish
spiritually, by excluding the baptized from the sacraments, but she
has the right to fine, exile, imprison, and ultimately execute, all of
which punishments the Church of the middle ages and counter-
reformation actually imposes. Why the need for temporal
penalties? Without them, it is argued, the Church would not be able
effectively to coerce the baptized into meeting their obligations to
her. Heretics, in particular, would only laugh at the purely spiritual
penalties of the Church - these penalties, viewed through their
heresy, being taken by them as of no account.13 Fundamental then
is the right and authority of the Church to use effective means of
coercion to hold the baptized to their obligations. Now coercion, to
be effective, must involve penalties that even the potentially
recalcitrant, those whom the threat of punishment principally
addresses, will dislike and be motivated to avoid. So if the Church
has the authority to coerce at all, she must be able to use temporal
penalties as well as spiritual. Nor are those born into heresy, such
as those brought up as Protestants, exempt from this coercive
jurisdiction. For where they too have been validly baptized, they
too are subject through that baptism to the coercive jurisdiction of
the Church. In the absence of proper instruction such people are
merely material heretics, not formally heretical, because they are
not freely and wilfully responsible for their errors. They ought
initially to be excused punishment for their erroneous beliefs until
they have received sufficient notice of the truth. But that is no bar
to their being instructed; and once they have been given clear
instruction in the true nature of Christ's Church, continued refusal
to believe the Catholic faith will leave them too counting as wilful
and obstinate heretics, by now freely and fully responsible for their
rejection of the faith to which their baptism commits them, and
liable through their baptism to just punishment to compel them into
that faith.14

The existence of this coercive jurisdiction on the part of the Church

is clearly fundamental to justifying the punitive repression of
heresy. For no mere earthly state - a kind of authority whose
coercive jurisdiction over its subjects is based just on the natural
law, and not on any commitments made through baptism - can
possibly have from natural law the authority to coerce anyone into
belief in any supernatural revelation.

As Suarez argues:

“Punishment of crimes only belongs to civil magistrates in so far

as those crimes are contrary to political ends, public peace and
human justice; but coercion with respect to those deeds which are
opposed to religion and to the salvation of the soul, is essentially a
function of spiritual power, so that the authority to make use of
temporal penalties for the purposes of such correction must have
been allotted in particular to this spiritual power, whether the
penalties are to be inflicted directly by the said power, or whether
it avails itself of the ministry of its temporal arm that all things may
be done decently, in order and efficaciously”. Defensio Book 3,
chapter 23, para 19
A Christian state might rightly aid the Church in such coercion of
the baptized, but only through a duty on the part of Christian rulers,
themselves subject to the jurisdiction of the Church through their
baptism, to aid her in her spiritual ends. The authority to coerce
into faith must, however, attach to the Church, not to the state.

So it is important to show that the Church does have the authority

to coerce the baptized, and through temporal as well spiritual
penalties - and to show this is possible not just on the basis of past
historical practice and tradition, but also on the basis of scripture.
For in the view of Suarez whether the Church has this authority is
an issue that falls firmly within the field of divine revelation, as
part of revealed teaching both on baptism and on the obligations to
the Church that baptism brings. One important passage appealed to
in this connexion is from Acts, where, appealing to the authority of
Augustine15, Ambrose and Gregory the Great, Suarez interprets
the deaths of Ananias and Saphira as a punishment inflicted on
them by St Peter - a just penalty imposed by the apostolic possessor
of a coercive jurisdiction over the baptized:
And finally, lest this power [to use temporal means of coercion] be
completely hidden at the beginning of the Church, since the
Apostles could not then exercise it in the ordinary way because of
the numbers and strength of the unbelievers, some miraculous signs
were given of this power: such a sign was made through Peter in
Acts 5, when at his command Ananias and Saphira died, about
which Ambrose says (sermon 19), "While he punishes one, he
corrects others, for he wanted punishment to touch one and fear to
touch the others." Suarez De fide, disputation 20, section 3, para
21.16

Other passages are cited by Suarez to establish the apostolic

punitive authority not only of St Peter but also of St Paul, as in 1
Corinthians 5 where St Paul decrees that for the good of his
salvation a member of the Church at Corinth guilty of incest be
'handed over to Satan for the destruction of the flesh' (that is, as
Suarez understands St Paul's decree, subjected to a temporal
punishment).17

So the baptized, and only the baptized, can be coerced into Catholic
fidelity; and the authority to coerce them attaches, in Suarez's view,
not to the state, but to the Church. However, there is still juridical
warrant, in Suarez's view, for some coercion of unbaptized non-
Christians.
The first form of coercion is under the authority of the Church
herself. But this is not a coercion of belief. Since the unbaptized
are outside the Church's jurisdiction, she has no authority in their
case to coerce belief or force any conversion to the faith. Rather the
coercion is to protect her jurisdiction and the supernatural end it
serves, the Church's mission, from interference from without.

Arguably any sovereign authority with the right to enforce its

jurisdiction on those subject to it, must also have the right to use
force to prevent interference from without. Not only can states
enforce laws on their own subjects; they can equally resist
incursions on their authority from those who are not their subjects.
Those not subject to a sovereign authority do not themselves have
any general obligation to the authority to follow its directions. But
the very legitimacy of that authority means that they are not
normally morally at liberty to intrude on its jurisdiction either, and
the authority generally has the right to prevent that interference.
The coercive measures used by the authority concerned, if really
necessary and if employing proportionate means, need not breach
the rights of those coerced.

As for the state, so also, according to Suarez, for the Church. The
Church can forcibly prevent those outside her juriosdiction from
interfering with her mission, or with the rights that her mission
serves. The unbaptized may not be forcibly converted; but their
religious activities may be restricted so as to limit their impact on
the lives of Christians.

Baptism is still fundamental to the Church's use of such coercion.

First because baptism and baptismal obligations constitute the very
jurisdiction being protected; but also because baptism provides the
Church's coercive power. For only the baptized have any obligation
to the Church to help protect her jurisdiction and mission, when so
directed. And among the baptized with a duty to provide such
protection, on the traditional understanding, have been baptized
state rulers. For Suarez, the coercive authority behind these
restrictions is that of the Church, in the service of the Church's
mission - the supernatural end that is the Church's peculiar concern
- defending that mission against incursion from without. He
distinguishes direct coercion to enforce the Church's jurisdiction
on those subject to it, from indirect coercion, exercised to protect
that jurisdiction and its mission and the rights served by that
mission from interference from without.18 To establish the
Church's authority to use indirect coercion on the unbaptized,
Suarez appeals to scripture: to the Acts of the Apostles chapter 13,
and the temporary blinding, at the word of St Paul, of the non-
Christian magician Elymas, who had been attempting to dissuade
the Roman proconsul, Sergius Paulus, from accepting the faith.
Suarez understands this blinding as St Paul, through his apostolic
authority and with divine assistance, using legitimate force to
defend the Church's mission against intrusion from without.19
Protection of the Church's jurisdiction and mission is seen by
Suarez to involve two elements in particular - defending the
Church's God-given mission to preach the gospel to all nations; and
protecting those already baptized from exposure to religious error
and attacks upon the faith. Christian rulers might be asked to
prevent non- Christian rulers from impeding Christian missions;
and they might be asked to restrict non-Christian public worship or
activity in their own lands in order to protect the faith of their own
subjects.

Thus consider something that there was once much of - bans on

places of non- Christian worship, such as synagogues, being
located anywhere near churches, and severe restrictions on their
number, or on the erection of new such places. These restrictions
may be immediately imposed through state law. But the authority
behind them, according to Suarez, is not that of the state and does
not come from what bases state authority - natural law. For just as
natural law gives the state no right to enforce belief in revelation
on the baptized, so too it gives the state no right to move legally
against a form of worship simply because it is not Christian.20 A
non-Christian religion such as Judaism or Islam might deny
revealed truth. But for all that the religion might still be strictly
consistent with the natural law, which, available to reason prior to
any revelation, does not itself forbid religions other than
Christianity. In which case such the religion's places of worship
have to be permitted by the state, at least as far as the state's own
authority is concerned. Any restrictions on such non- Christian
worship are based instead on the authority of the Church, directing
baptized rulers of the state to enforce those restrictions on the
Church's behalf. And their function is not to forbid non-Christian
public worship altogether - that would be tantamount to forced
conversion of the unbaptized, which is beyond the Church's
authority - but to reduce its impact and thereby to protect the
integrity of Christian life.21 The restrictions served to protect the
Church's mission - to limit scandal to the faith and reduce the
exposure of Christians to non-Christian religious life and influence.
Suarez also allows for a further form of religious coercion of some
among the unbaptized - but this time of their belief, and on the
authority of the state. By virtue of their subjection to the natural
law and to state authority grounded in that natural law, the
unbaptized may be coerced by the state into that form of religion
dictated, independently of any revelation, by reason and the natural
law. For the natural law teaches as a truth available to reason the
existence of the one God, a God whom not only Christians but Jews
and Moslems also worship, and a moral duty to love and worship
that one God. Monotheism is thus that form of religion dictated by
natural law, and so is to be enforced where practicable by any state
on all those subject to its jurisdiction, if necessary through
coercion. Any state has the authority under natural law to enforce
monotheism on its subjects, be the state Christian or not.

So not only is atheism or a-religion contrary to reason and natural

law, but so too is religion that involves polytheism or idolatry.
Since polytheism is deeply irrational, natural law requires, in
Suarez's view, the coercive suppression, if at all possible, by any
state within its borders, not only of polytheistic practice, but also
of polytheistic belief:

“The confirmation of our argument is that the purpose of [state]

power is to maintain the state in peace and justice, which cannot be
done unless the state is also induced to live virtuously; but men
cannot live according to moral and natural virtue, without true
religion and the worship of the one God; therefore, natural power
and the jurisdiction of a human state are extended to include this
purpose...even a pagan—that is, a non-Christian—king, if he has a
knowledge of the true God, may coerce his own subjects into
believing that truth (cogere subditos ad idem credendum), either by
their own reasoning if they are educated, or by putting human faith
in more learned men, if they are ignorant; and consequently, he
may compel those same subjects to cease from the worship of idols
and from similar superstitions contrary to natural reason. The proof
of this inference is that there resides in such a king all power which,
according to natural reason, is suitable for a human state”. Suarez
de Fide disputation 18, section 4 para 7-8
It is clear, then, that once a person has entered, through baptism,
under the jurisdiction of the Church, their metaphysical freedom
may still permit the coercion into Catholic fidelity of their religious
belief as well as their public practice. Similarly, the metaphysical
freedom of a Hindu or Shinto polytheist does not protect them from
coercion, by the state, into some form of monotheistic belief as well
as practice. What permits this coercion in each case are the ends
that Church and state respectively serve, and the right and duty of
each authority to use coercive force, if necessary, to direct those
subject to their jurisdiction into meeting their obligations in respect
of those ends - in the case of the state a natural happiness requiring
a natural religion that is monotheistic, in the case of the Church
supernatural happiness requiring fidelity to one's baptismal
commitment.

Notice that this jurisdiction-centred view of religious liberty,

unattractive to many as it may now appear, cannot be dismissed by
modern Catholics as just so much dead theological opinion that
never reached the level of the magisterium. Such a dismissal might
apply to the Suarezian theory of the state's authority under natural
law to enforce rational monotheism - an issue to which we shall
return. But Suarez's view of the Church's coercive authority is a
different matter.

Immediate backing for Suarez's theory of the indirect coercive

power of the Church in relation to the unbaptized comes at the level
of past canon law. Suarez's views are based on extensive reference
to the pre-1917 Corpus iuris canonici, which contains many
decrees and instructions that clearly assume the Church's
possession of such an authority, and an obligation on the part of
baptized rulers to aid her, when so directed, in its exercise.
Consider one very important canonical collection in this area, to
which he refers, from the decretals of Gregory IX, liber 5, titulus
6, De iudaeis, sarracenis, et eorum servis. This material places a
whole variety of restrictions on Jewish and Moslem worship and
behaviour. Besides restrictions on places of worship, Jews and
Moslems are forced to wear distinctive dress, are restricted from
moving about on Good Friday, are restricted from having Christian
slaves or servants, from holding political office over Christians,
and so forth.

It is important that in this canonical material there is no reference

to the theory, current among many modern Catholic traditionalists,
of a supposed native authority on the part of the state to forbid the
public practice of false religions. Suarez, as we have seen, certainly
did not believe in such a form of state authority. Unless a religion
violated natural law, and a non-Christian monotheism need not, the
state had no authority of its own legally to move against it just as
false or non-Catholic. All these canonical restrictions are being
very explicitly imposed under the authority of the Church, and
specifically under papal or conciliar authority, often in instructions
to bishops, sometimes with explicit instructions to Christian rulers
just to do as they are told by the Church in this matter.

These canonical regulations are of course defunct, and in respect

of their overall morality may appear deeply repugnant to us now.
Their significance lies in the view of Church authority that they
presuppose, especially in relation to the baptized, who are
supposed to be under an obligation to aid the Church in her
enforcement of such directives. It is in relation to this view of
Church authority that we would need to consider the encyclicals of
nineteenth and twentieth century popes, in which Catholic states
are encouraged to restrict public practice of and proselytization by
false religions. Though these encyclicals are often viewed by
modern traditionalists as assuming an authority on the part of the
state to restrict the public practice of false religion, this
interpretation is not obvious, and - as we shall later see - runs
contrary to a view of the respective legislative authorities of
Church and state taught in that most juridically explicit of
nineteenth century political encyclicals - Leo XIII's Immortale dei,
'on the Christian constitution of states'. These encyclicals seem
equally interpretable in terms of the view of Church authority
assumed in earlier canon law - namely as extending to protecting
those within the Church's jurisdiction from exposure to non-
Christian practice or proselytization, and as involving a right to call
on Christian rulers to aid her in providing that protection.
There is even more institutional and magisterial backing for the
Church's direct coercive authority over the baptized, and in
particular for her authority to coerce the errant baptized back into
Catholic fidelity. And it is this direct coercive authority over those
within the Church's jurisdiction that will be central to the rest of the
paper.
For one thing, the Church's authority to coerce the baptized into
faith was taught in terms that seem very binding, not just by private
theologians, but as Church teaching in official diocesan catechisms
and compendia of Catholic doctrine.22 The view was endorsed not
just by eminent bishops and Cardinals, of whom Bellarmine was
only one, but was a very well established part of canon law, and
long governed the proceedings of Church bodies and the
deliberations and verdicts of canonists. Canonical material in
support of such coercion goes far back. For example one very
frequently cited authority for such coercion from the Corpus iuris
canonici is the fourth council of Toledo of 633. This provincial
council forbids coercion of the unbaptized into the faith, and does
so on the basis that the act of faith must be an act of free will. But
this metaphysical freedom of the act of faith only blocks the
coercion of those outside the Church's jurisdiction. For the council,
and with equal force, requires coercion (where necessary) of the
faith of those who have been baptized; free will is no block at all
to enforcement of baptismal obligations on those already within the
Church's jurisdiction.23 It is very clear that Aquinas's teaching on
the compulsion of the act of faith was very much in line with long-
standing principles of canon law. Nor is this coercive jurisdiction
of the Church over the faith of the baptized a mere relic of the pre-
1917 Corpus. As we shall see, the existence of a coercive
jurisdiction of the Church over the baptized - a jurisdiction
extending to belief as well as practice - is still taught officially
today as part of modern 1983 Code of canon law for the Latin
Church.

Furthermore the view governed the conduct of the Church with

secular rulers, to the point that cooperation with the Church's
coercive policies towards the baptized was treated as a condition of
communion.24 The view was taught emphatically, with explicit
reference to Aquinas's 2a2ae q10 a8 defence of the coercion of the
faith of baptized apostates and heretics, by Pius VI in Quod
aliquantum of March 1791, as part of his condemnation of the
French Civil Constitution of the Clergy as involving a
straightforwardly heretical denial of the Church's rightful
jurisdiction over the baptized. But finally, and at the highest level
of the conciliar magisterium, and in contexts that are clearly
doctrinal rather than merely disciplinary, and in passages that are
consistently interpreted by commentators thereafter not only as
doctrinal, but as dogmatic and de fide, the Council of Trent
formally endorses key elements of the jurisdiction-centred view in
two crucial decrees. In its decree on penance, the Council restricts
the scope of the Church's jurisdiction to the baptized.25 And in its
decree on baptism, the Council teaches that the obligation to obey
Church authority applies to and binds the baptized irrespective of
their own will and consent in the matter26; and then specifically
that individuals' baptismal commitment to the faith may be
coercively enforced, even on those adults baptized without their
personal consent as children. Baptism not only subjects the
baptized to ecclesial jurisdiction; this jurisdiction comes, it seems,
with coercive teeth.

Erasmus in his preface to his Paraphrases on Matthew27 had

proposed that those baptized as children be asked on growing up
publicly to reaffirm their baptismal promises; and that they not be
subjected to any punitive coercion back into fidelity save exclusion
from the sacraments if they were unwilling to provide the
reaffirmation. This Erasmian challenge to the use of temporal
penalties to coerce the baptized into fidelity had already been
criticized well before Trent by Spanish theologians meeting at
Valladolid in 1527 to review Erasmus's works. Whatever else the
individual theologians varyingly thought about the public
reaffirmation of baptismal promises, all were hostile to Erasmus's
proposed rejection of any coercive enforcement of fidelity on the
unwilling - one theologian expressing the view that a threat of death
for the unwilling would be a suitable sanction.28 Trent specifically
cites Erasmus's proposal, and in canon 14 of the decree on baptism
imposes an anathema upon it. And as at Valladolid, the
condemnation is not of the simple proposal that people be asked to
reaffirm their baptismal commitment; but of Erasmus's linkage of
this proposal to a disavowal of any real coercion of the baptized -
his suggestion that those unwilling to make the requested
affirmation should be left uncoerced to their own decision:

“If anyone says that when they grow up (cum adoleverint), those
baptized as little children should be asked whether they wish to
affirm what their godparents promised in their name when they
were baptized; and that, when they reply that they have no such
wish, they should be left to their own decision and not, in the
meantime, be coerced by any penalty into the Christian life (suo
esse arbitrio relinquendos nec alia interim poena ad christianam
vitam cogendos), except that they be barred from the reception of
the eucharist and the other sacraments, until they have a change of
heart: let him be anathema”.29 Council of Trent

Theologians subsequently view this decree as de fide, and as

defining the legitimacy of the use of coercion to enforce baptismal
obligations, including the central baptismal obligation to faith.
Thus to take one example, the eminent Dominican theologian,
Billuart, writing around 1750. In his famous commentary on
Aquinas, Summa Sancti Thomae, in the Tractatus de fide,
dissertation V, article II, Utrum infideles cogendi ad fidem?
Billuart asserts it to be clear Church teaching that the faith of
heretics and apostates, but not of the unbaptized, may rightly be
coerced. What authority does Billuart cite for this? Besides
Aquinas's teaching in the Summa Theologiae 2a2ae question 10,
article 8, he cites the canon law on heresy, specifically including
the fourth council of Toledo on the coercive retention in the faith
of the baptized. For dogmatic teaching by a general council,
Billuart then appeals to canon 14 of Trent's decree on baptism.30

How great is the contrast when we pass to the modern person-

centred view of the right to religious liberty. So natural is it to read
the person-centred view into Dignitatis humanae, that we can
easily illustrate the view by selective quotation from that very
conciliar declaration. Let us consider just how far this modern view
differs from the earlier jurisdiction-centered view. The person-
centred view contains a number of distinctive elements.

First, it supposes a private religious sphere, of inner belief and inner

devotion, where coercion is never justified. The metaphysical
freedom of the act of faith or religious belief is now held - as it
certainly was not held before - to rule out any coercion:

“appropriate, given the greater efficacy and dignity of the New

Law, that baptized Christians be coerced into fidelity to the New
Law. Erasmus's proposal in the Paraphrases on Matthew is
regarded by the fathers of Trent as pernicious precisely because he
opposed the evident legitimacy of such coercion. For Sarpi's
account and further important commentary on it, see Le Courayer's
edition of Sarpi, Histoire du Concile de Trente (Amsterdam 1751)
p436. Pierre-Francois Le Courayer, canon regular and librarian of
the Abbey of Sainte Genevieve in Paris, was a defender of the
validity of Anglican orders, and had taken refuge in England from
prosecution for his opinions in France, becoming a Doctor of
Divinity of the University of Oxford. He provides a footnote of his
own to this passage of the History. In it Le Courayer opposes the
use of coercion to enforce Christian orthodoxy in terms that are
nowadays very familiar: without coercion there would fewer
Christians, but this would be amply compensated for by the fact
that the fewer Christians would be better ones. There is an
interesting contrast of attitude to coercion with his contemporary,
the eminent and undoubtedly orthodox Catholic Billuart, whose
views are discussed below.

18

For the practice of religion, of its very nature, consists principally

in internal acts that are voluntary and free, in which one relates
oneself to God directly; and these acts can neither be commanded
nor forbidden by any merely human power”. Dignitatis humanae
para 3, Tanner and Alberigo, volume II p1003

And again:

“Human beings...can only respond to God as he reveals himself if,

with the Father drawing them, they give to God a free and rational
allegiance of faith. It is therefore entirely in accordance
(consonum) with the nature of faith that every kind of human
coercion (quodvis coercitionis ex parte hominum) be excluded
from religion. Dignitatis humanae para 10 Tanner and Alberigo”
p1007
Secondly public religious practice is primarily seen not in juridical
but in personal terms - in terms of its expressing a freely chosen
commitment of the person. And on that basis it is taught that such
practice should never be coerced, at least unless public order
requires. In particular, there seems to be no explicit mention in
Dignitatis humanae of limits to this right to non-coercion arising
from any special form of jurisdiction attaching to a specific
authority such as the Church.

“The social nature of human beings, however, requires that they

should express these interior religious acts externally, share their
religion with others, and witness to it communally. Hence wrong
is done to the human person and to the order established by God
for people, if they are denied the free and social practice of their
religion, provided just public order is observed (iusto ordine
publico servato)”. Dignitatis humanae para 3 Tanner and Alberigo
p1003

The discontinuity between these two models of permissible

religious coercion is obvious and deep. And it involves a straight
disagreement about the way in which our metaphysical freedom
limits how we may be coerced. This disagreement is not just about
the extent of permissible coercion, but the very relevance of
ecclesial jurisdiction. For the Church of the middle ages and
counter-reformation, coercion could be of belief as well as of
practice; and the limits to permissible coercion were importantly
juridical, and were not set simply by the nature or dignity of the
person. And these are things that, on a natural and very
conventional reading of Dignitatis humanae, the modern Church
now denies - or so, at any rate, it seems.

3. The nineteenth century theology of liberty and coercion

The Church's historical commitment to an uncompromisingly

jurisdiction-centred view of religious liberty may have been
obscured by the church of the nineteenth century and the views
that, especially as the century progressed, were increasingly
encouraged within official circles both of religious liberty and of
the Church's own medieval and counter-reformation past. For
reasons I shall touch on later, the nineteenth century magisterium
and official nineteenth century Catholic theology were involved,
over time, in what is, at least in appearance and at the level of
rhetoric and emphasis, something of a shift towards the modern
person-centred view.
The nineteenth century Church's account of its own previous
history is especially important in its long-term effects. Many
modern Catholics, even those who see themselves as liberals but
certainly those who are conservatives or traditionalists, tend to
view the medieval and counter-reformation church through the lens
of its official portrayal within the nineteenth century Catholicism -
a nineteenth century Catholicism that was having to adjust to a new
world of religious pluralism. But the nineteenth century Church's
view of its own past is often misleading. Nineteenth century
theology celebrated continuity just as much as modern theology is
apt to celebrate development; but that did not prevent nineteenth
century writers from being subtly innovative in their interpretation
of tradition, and from redefining the earlier pre-modern theology
in nineteenth century terms. Our understanding of the medieval and
counter-reformation view is as a result framed and determined by
nineteenth century theology's creative re-interpretation of its own
inheritance - a re-interpretation that deeply obscures, in particular,
the jurisdiction-centred character of that view. It is not that the
earlier jurisdiction-centred view is ever straightforwardly and
unambiguously denied. It is just never accurately characterised or
explicitly presented in its full force; and the omissions all tend to
be in a person-centred direction.

Thus in Immortale dei, Leo XIII's encyclical of 1885 on the

Christian constitution of states, we find the pope stating the
traditional requirement that the act of faith be free and voluntary;
but in so doing he seems to make from this a direct inference to the
illegitimacy of the coercion of belief, an inference which neither
earlier Catholic theology nor canon law would have directly made.
That is, no explicit discrimination is made by Leo between
unbaptized non-Christians outside the jurisdiction of the Church,
whose belief cannot properly be coerced, and baptized apostates
and heretics, whose faith, because they lie within the Church's
jurisdiction, can be coerced. Rather the metaphysical freedom and
voluntariness of belief is presented as if it excluded directly and of
itself any coercion into Catholic belief:

“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, for,
as St. Augustine wisely reminds us, "Man cannot believe otherwise
than of his own will." Immortale dei (on the constitution of states)
para 3631

It might seem, especially to any modern reader who interprets the

encyclical in a way that detaches it from earlier tradition, that we
have here the same person-centred model of faith and belief as
constituting a sacrosanct inner forum that is so naturally read into
Vatican II.32

Again, though Leo XIII teaches a clear duty on the part of the state
to foster and support the true religion, which is of course Catholic
monotheism, his main concern is with the public realm, and a
prudent limitation, for the common good, of the public practice and
preaching of religious error. There is certainly no proposal for the
coercion of the belief or private practice of the errant baptized.
This might lead many to read Leo XIII as actually meaning to state
an early and less liberal version of the modern, person-based
model. On this reading,33 the dignity and nature of the person
protects them directly from any coercion of belief and private
practice, but the public interest may warrant some restrictions of
freedom in the public sphere - which is really the same model that
is so naturally and conventionally read into Vatican II. Though a
more favourable view seems to be taken in Immortale dei than at
Vatican II of the use of coercion to prevent the public practice of
non-Catholic religions, this could be read as a matter of degree, and
as reflecting an earlier more pessimistic view, from within a shared
person-centred model, of the adverse effect on the interests of
individuals generally of the public teaching of, or evangelisation
on behalf of, religious error. On this reading there may indeed be a
basic continuity of development between Immortale dei and
Dignitatis humanae.34

If we look at the past through the filter provided by an encyclical

such as Immortale dei, especially when read nowadays in person-
centred terms, the precise character of the medieval and counter-
reformation Church's teaching on religious liberty is hidden,
precisely because in that encyclical the medieval and counter-
reformation advocacy of the enforcement of baptismal
commitment through the coercion of belief is unexpressed, as is the
pre-modern view's relentless emphasis on jurisdictional
considerations.35

Jurisdictional considerations are not wholly ignored in the more

detailed nineteenth century non-papal theological discussions.
There was too much commitment to fidelity to canon law and its
theological presuppositions and to continuity with past official
theologians such as Suarez and Bellarmine for the jurisdiction-
centred model actually to be abandoned. The model is still clearly
taught in technical theological manuals.36 But the case is different
in official theology of a less technical form, especially in
apologetic work directed at a non-Catholic or liberal audience.
Despite much lip-service paid even in general apologetics to the
authority of Suarez and Bellarmine in particular, their views are
often reinterpreted in a person-centred direction.

An heroic example of such determined reinterpretation is to be

found in Cardinal Manning's controversy with Gladstone after
Vatican I. In his The Vatican Decrees of 1875, Manning sought to
distance the Church from memories of the fires of Smithfield and
from any commitment to a coercive re-Catholicisation of England.
The Church's jurisdiction over all baptized Christians is admitted -
but not so as to permit coercion.

Two quite different methods are employed by Manning to this end.

First, Manning argues that, at least at a communal or collective
level, the will of the people can trump jurisdictional considerations.
If the English people's will is not to be subject to papal jurisdiction,
then the pope must just respect that will, and not enforce his
jurisdiction:

“The first principles of morals forbid the exercise of the supreme

judicial power of the Church on such a civil order as that of
England. When it was de facto subject to the Church, England had
by its own free will accepted the laws of Christendom. It can never
be again subject to such laws except on the same condition –
namely by its own free will. Till then the highest laws of morality
render the exercises of such Pontifical acts in England
impossible...” Manning The Vatican Decrees in their bearing on
Civil Allegiance (1875) p80

Manning acknowledges that the pope does still have jurisdiction

over the English people, since that jurisdiction is based on baptism.
But given 'moral conditions' - the will of the English people not to
recognize that jurisdiction - papal jurisdiction must be notional. It
cannot properly be exercised through coercion:

“The ancient world was without the unity of the Christian Church
de facto and de jure. The modern world is without de facto; and
this has changed all the moral conditions of the subject. The Church
never, indeed, loses its jurisdiction in radice over the baptized,
because the character of baptism is indelible; but unless the moral
conditions justifying its exercise be present, it never puts it forth”.
Manning op. cit. p89

What Manning terms 'moral conditions' allow the limits to coercion

to be determined, at least at the communal level, not by the
Church's jurisdiction, but directly and in a manner overriding of
that jurisdiction, by human free will - in a person-based way.
Because of their own free will, a people of baptized Protestants can
no more be coerced back into Catholic faith and practice than can
the non-baptized. Manning is already adhering to a modern theory
of religion that takes as primary its character as a free personal
commitment. Whereas the middle ages and counter-reformation,
while certainly understanding religion as a metaphysically free
personal commitment, for the purposes of explaining the limits of
religious coercion took as primary the juridical character of
religious identity, and especially its involvement of a juridical
subjection. Manning for his part still fully admitted this juridical
aspect to religion. But for him this juridical aspect was now quite
secondary; indeed, where religious liberty was in question, it was
ceasing to count for so much.

At other times Manning slips into a quite different line of thought.

Here it is not the voluntary and wilful rejection of Catholic
jurisdiction and teaching by the English people that protects them
from papal coercion, but rather that rejection's by now inherited
and relatively involuntary nature. We have noted the traditional
distinction between the formal or obstinate heretic who wilfully
rejects the authority of the Church, and the merely material heretic,
who believes error but without yet having received sufficient notice
of the Church and its teaching. The material heretic is not yet
sufficiently free to believe and so is blameless and, for as long as
he remains blameless, even though baptized is not to be punished
or coerced. In practice, by the late nineteenth century as much
heresy as is possible is made out to be in one way or another
effectively material, no matter how long the heretic persists in it,
and no matter what information and opportunity for abandoning it
he has been given - and the coercion of heretics turns into a merely
notional possibility:
Our older writers, such as Bellarmine and Suarez, when treating of
this subject, had before their eyes a generation of men who all had
been in the unity of the faith. Their separation therefore was formal
and wilful. Their separation from the unity of the Church did not
release the conscience from its jurisdiction. But if Bellarmine and
Suarez were living at this day, they would have to treat of a
question differing in all its moral conditions. What I have here laid
down is founded upon the principles they taught, applied to our
times. Manning op cit p94

Thus Manning sought to recruit Suarez and Bellarmine into a

nineteenth century culture of toleration. But the recruitment was
fairly forced. By the time of Suarez and Bellarmine the unity of
shared Catholicism in Europe had already been ended for over two
generations.37

We have seen that no real exemption from coercion into the

Catholic faith was granted by Suarez even to those merely material
heretics born, baptized and brought up as Protestants. At most
actual punishment would be postponed until they had been
instructed - at which point continued refusal of the faith, because
by now free and wilful, could rightly be met by punishments.
Bellarmine's view was no different. At the very end of the sixteenth
century, roughly eighty years after the initial establishment of the
first Protestant states, it was still beyond doubt for Bellarmine that
any Christian ruler was obliged to use their power to ensure that all
their baptized subjects hold the Catholic faith - the faith taught by
the Catholic bishops and especially by the pope38. Liberty of belief
(from coercion) is, for Bellarmine, 'a most pernicious error'. A
special liberty of belief for those many whose heresy was by that
time quite obviously entirely inherited is simply not considered. In
particular, the liberty of belief afforded those born and brought up
as Jews supported, in Bellarmine's view, no like liberty for heretics,
as the Jews had never received baptism as heretics had done.39

Not only did the official theology of the nineteenth century Church
strive to minimise the number of those counting as formally and
culpably heretical. Even the punishment of formal heretics turns,
in the hands of a nineteenth century Catholic bishop Ketteler
addressing worried German liberals and Protestants, into a
'spiritual force', which in its presentation is very deliberately and
carefully made to appear something quite different from any
coercion of belief:

“As regards the use of spiritual force against heretics...the Church

has always affirmed the authority to use such punitive force on
those who are by belief and by baptism her own members. But such
force consists in spiritual and ecclesiastical penalties which have
as their special purpose to bring about their spiritual improvement.
The most severe of these punishments is excommunication. The
Faith is the foundation of the Church. Therefore, as every
organisation which wishes to survive has the right to protect its
basic constitution by expulsion of those members who attack that
constitution, so the Church too must have the right to expel
members who make an assault against her foundations. Even when
the Church used external means of compulsion, this too was done
for improvement and enlightenment purposes, and not on the basis
of any opinion that the Faith could be internally compelled or that
it is not by its very nature a wholly internal act”. Religionsfreiheit
und die Katholische Kirche in Ketteler Freiheit, Autorität und
Kirche (152-3)

But the enlightenment of heretics that Aquinas and Suarez had in

mind most certainly involved the coercion of Faith as an internal
act - which punitive coercion, as we have seen, they thought
perfectly consistent with faith's occurrence as a metaphysically free
act of inner conviction. And in fact, Ketteler is not so rejecting of
the coercion of belief as he wishes to appear. For how else do
ecclesiastical punishments effect 'spiritual improvement' or
'enlightenment' in the heretic subjected to or threatened with them
except by helping to pressure them away from the heretical belief
being penalised? And if the belief is being deliberately discouraged
through a policy of condemning and penalising expression of it, is
this not precisely a policy of coercion of belief of the sort that
Aquinas and Suarez endorsed? But Ketteler's emollient rhetoric is
artfully designed to distract the reader from such a train of thought;
and the reader's attention is carefully drawn away to another and
not inherently religiously coercive project of 'protecting the
institution', where the point is not to use pressure to change what
heretical people religiously think and do, but simply to exclude
them from membership and prevent them from polluting the
institution.
On religious liberty and coercion the Catholic theology of the
nineteenth century underwent an immense but largely silent
transformation - and arguably a transformation greater than any
that was to occur, with so much publicity, at the Second Vatican
Council. Lip-service was still paid to the jurisdiction-centred
theology of the past. But that theology was increasingly unasserted
in its detail, or presented in terms that effectively neutered it - terms
which are very far from giving a fair representation of the actual
theology and teaching of the Church of the middle ages and of
Trent.40 It was thanks to this silent transformation that by 1962 the
Church's pre-modern teaching had become forgotten and ignored
by theologians interested in religious liberty, so that in all the
heated controversy over Dignitatis humanae at the Second Vatican
Council, the issue of the coercion of belief and private religious
practice was no longer a matter for debate. So Russell Hittinger can
say of the discussion at Vatican II:

“The truly groundbreaking argument, however, did not concern the

idea of rightful immunity from coercion of interior acts, for this
issue was never in serious dispute”.

Part II: The coercive powers of Church and state

4. Trent or Vatican II?

What are we to conclude? First, that the focus of the post-conciliar

debate about religious liberty needs to move. The most profound
conflict seems no longer to be between Vatican II and the
nineteenth century magisterium. For there now seems to be a more
fundamental conflict between these together on the one hand, and
the theology and teaching of the middle ages and counter-
reformation period on the other. And here the conflict seems to
divide the Conciliar magisterium against itself. The Second
Vatican Council teaches in Dignitatis humanae that:

It is therefore entirely in accordance (consonum) with the nature of

faith that every kind of human coercion (quodvis coercitionis ex
parte hominum) be excluded from religion.

But it seems that the Council of Trent, in canon 14 to its decree on

baptism, specifically teaches the licitness, at least in principle and
under some conditions, of using coercive penalties to pressure even
those adults baptized as children into continued fidelity to their
baptism. This is a position that is enshrined in canonical material
dating from at least the very early middle ages, and taught as a
matter of divine revelation, by appeal both to scripture and
tradition, and without any serious controversy, by theologians until
modern times, and that permits a coercion of belief as well as of
public practice, a coercion of belief and practice to which the
Church of the middle ages and counter-reformation was committed
at every level. By contrast such coercion seems now to be
forbidden by Dignitatis humanae (in the case of belief, without any
exceptions) - and forbidden not merely as imprudent under present
conditions but as always wrong in principle, because inconsistent
with the dignity and rights of the human person.

It is important not to be distracted by our justified horror at the past

persecution of Protestants or at past Inquisitorial procedures. For
these things can be objected to on many grounds not directly at
issue here. For one thing, massive cruelty was used, and in ways
which surely could not be justified either by any plausible view of
the interests of any of those involved or by the supernatural ends
served by the Church. A complete account of the morality of
religious coercion in all its possible forms would be an immensely
difficult matter. We would have to discuss all the questions
surrounding permissible means and occasions and the like. Our
present subject is much more limited: namely, whether it could
ever be licit for the Church to use some proportionate means of
coercion to pressure at least some baptized into meeting their
baptismal commitment to Catholic belief and practice. Trent seems
dogmatically to assert the possible licitness of at least some such
coercion, and its licitness as involving means beyond and more
coercively substantial than mere exclusion from the sacraments.
But Vatican II seems to deny that any such coercion of religious
belief and private practice could ever be licit.

The magisterium of the Church can hardly be supposed to be

recreated or reinvented brand new at Vatican II. Catholics are
inescapably committed to the teaching of the magisterium in its
entirety. This means that we cannot simply interpret Dignitatis
humanae without reference to previous magisterial teaching.
Indeed, as we shall see, the content of Dignitatis humanae itself
does not permit us to do that. But that then presents us with a
massive interpretive problem. Indeed it is one that initially seems
insoluble, as if what one Council taught to be white the other now
teaches to be black. So what is the doctrine of the Catholic Church
on religious liberty?

5. The coercive jurisdiction of the Church

It is important that just as she did at Trent, the Church still

conceives of herself as having a coercive jurisdiction over the
baptized. The present code of canon law for the Latin church states
as canon 1311:
The Church has the innate and proper right to coerce (coercere)
offending members of the Christian faithful (christifideles) with
punitive sanctions (poenalibus sanctionibus).

And the Christian faithful (christifideles) are defined within the

Code in canon 204 §1, and in a way fully continuous with Trent, as
the baptized:
The Christian faithful are those who, inasmuch as they have been
incorporated in Christ through baptism, have been constituted as
the people of God.

So the 1983 code of canon law, the 'code of Vatican II' undoubtedly
maintains the traditional Tridentine teaching that the Church
possesses a coercive jurisdiction over the baptized.42 Moreover the
penalties applied are not restricted to the spiritual. For example,
expiatory penalties (penalties that serve both to deter and to repair
harm done) can include those that are temporal, as canon 1312 §2
affirms:

“The law can establish other expiatory penalties which deprive a

member of the Christian faithful of some spiritual or temporal good
and which are consistent with the supernatural purpose of the
Church”.

Along with apostasy and schism, heresy, which is defined as

“the obstinate denial or obstinate doubt after the reception of

baptism of some truth which is to be believed by divine and
Catholic faith” (canon 751)
is still punishable under canon law by the medicinal penalty,
oriented towards cure of the offender, of excommunication. But it
is also, in the case of those baptized who are Catholic clerics,
punishable by expiatory penalties beyond exclusion from the
sacraments, such as restriction of movement and loss of office and
privilege (see canons 1364 and 1336). One can be punished by
being forbidden to travel or by the loss of one's job. Granted this is
far from the combustion of Protestants that we are familiar with in
the pre-modern Church. But to be threatened with, say, the loss of
one's job is not a trivial matter either. And remember that the issue
is not about this or that past form of coercion and its morality, many
cases of which may indeed have been grossly immoral, but the very
legitimacy of the punitive coercion of anyone, including any of the
baptized, in matters of religion.

If these penalties are deliberately being imposed for, amongst other

purposes, that of directing and influencing people either into
remaining religiously faithful in the first place, or, through the
disliked effects of actual imposition, into returning to fidelity, then
it might look as though we have a coercive structure, however mild
compared to any in the past, that in the case of some of the baptized
is being applied to pressure religious belief and practice.
And indeed Ketteler himself admitted such a coercive structure still
existed in the modern Church. As he said:

“the Church has always affirmed the authority to use such punitive
force on those who are by belief and by baptism her own members.
But such force consists in spiritual and ecclesiastical penalties
which have as their special purpose to bring about their spiritual
improvement”.
In so far as 'spiritual improvement' in heretics or potential heretics
must by its very nature include avoidance of heresy or return from
it, it looks as though we do have here some sort of system of
coercive penalties on religion of the kind that, apparently,
Dignitatis humanae opposes.

Could the penalties be too mild to engage the prohibition of

Dignitatis humanae? But that is not plausible. If governments
threatened loss of employment as the penalty for expressing certain
religious beliefs, and did so as part of a general policy of
deliberately discouraging people from holding them, then surely
this would be quite enough to violate Dignitatis humanae's
teaching.

It might be suggested that the Church's insistence on orthodoxy in

its membership and clergy is merely a form of membership or
employment condition, to protect the integrity of the institution,
(rather as we already saw Ketteler to imply in relation to
excommunication), and is not actually intended as part of a
coercive structure to deter offenders or to reform them. On this
view, the canon law on heresy is not aimed at coercively
influencing what beliefs certain people hold and express. It is no
more coercively intended than any other simple membership or job
qualification.

But this fails to take into account the penal language. The code
specifically addresses infidelity or heresy not as a simple failure to
meet conditions on membership or employment, but as a wrong or
crime - a delictum - deserving punishment - poena. And the loss of
communion or office or privilege that follows is described in
explicitly punitive terms. And for the Church to threaten a clearly
unwelcome outcome such as job loss specifically as a punishment
for wrong-doing, is precisely to act like any authority seeking
coercively to regulate and influence what people believe and do
and to pressure them away from whatever is being classed as
wrong. By attaching real costs to heresy, and describing those costs
as punishment for what is presented as a crime, the Church is
conveying the very same coercive message that states do when they
attach similarly penal costs to actions classed by them criminal -
namely that what has been penalised really is wrong, and so is not
to be done. The Church is doing exactly what she describes herself
in canon 1311 as having the right to do, namely to give coercive
direction to the baptized - in this case to use the threat of
punishment to influence what the baptized believe, directing them
away from the crime of heresy.

It might also be suggested that these penalties are supposed to

direct or influence the baptized only on the supposition that they
anyway have a prior and fundamental commitment to the faith as
such and to the Church. That fundamental commitment is not itself
to be coerced. But that interpretation cannot make sense of the fact
that schism (refusal of submission to the Pope and of communion
with the Church) and apostasy (total repudiation of the Christian
faith) precisely involve the abandonment of such a fundamental
commitment; and these are also forbidden by the code by the same
canons as are directed against heresy, as crimes threatened with the
same penalties as heresy. So people are being coercively directed
to remain faithful to the faith as such and to the Church, and not
simply directed to particular beliefs in the context of a more
fundamental uncoerced fidelity.

If the Church treats heresy, schism and apostasy as punishable

wrongs, and punishable by outcomes materially unwelcome to the
offender, then it seems she is morally committed to what follows
from this - the licitness in at least some cases and under some
circumstances of using some form of penal coercion, beyond mere
exclusion from the sacraments, as a means to holding people to
their baptismal obligations. Which is precisely what Trent commits
the Church to doing. At issue behind Trent's condemnation of
Erasmus is the seriousness with which the Church means what she
says in the formulations of her own canon law.

6. Religious liberty as a political liberty

The common reading of Dignitatis humanae is that it asserts a

universal right of all not be coerced in the belief and practice of
religion. It is on that assumption that the declaration clashes with
Trent's endorsement, at least in principle, of coercion into fidelity
of the baptized.

On this very natural and wide understanding of it, there are at least
two kinds of coercive authority that Dignitatis humanae would
have to address. It would have to address the authority and coercive
power of the state and of other civil institutions. And the nature and
extent of that authority is determined just by the natural law, and is
primarily a matter for reason to determine. Then it would have to
address the authority and coercive power of the Church, both over
people in general, and more specifically and especially over the
baptized. And that would be a matter not just for reason to
determine, but for revelation. That holds true especially for the
relation of the Church to the baptized. For baptism is a sacrament
bringing with it membership of an institution that is not merely
human. That institution is the Body of Christ and new People of
God, governed by a law of the New Covenant that is divine and the
content of which is a matter for revelation, serving ends that are
supernatural. Any comprehensive treatment of religious liberty in
relation both to Church and state would then need to proceed at two
levels: immediately at a level of natural reason, in relation to the
state and civil institutions; and then immediately at a level of the
dogmatic exposition of revealed truth, in relation to the authority
of the Church. And in relation to the Church the treatment would
have to address with particular care the case of the baptized and
their obligations to the Church. For it is precisely through baptism
and its obligations, according to the traditional theology, and
indeed according to modern canon law, that the Church possesses
coercive authority at all.
But this is not the form that Dignitatis humanae takes at all. For it
plainly declares at the outset that its purpose is to address the rights
of individuals and groups in civil society, and, in particular, in
relation to the state. The declaration is entitled: On the right of
persons and communities to social and civil liberty in religious
matters. And the declaration further announces in the first
paragraph that since its concerns are with civil liberty, nothing in
the declaration affects traditional teaching concerning people's
obligations to the Church, including those of the baptized:

“Indeed, since people's demand for religious liberty in carrying out

their duty to worship God concerns freedom from compulsion in
civil society, it leaves intact the traditional catholic teaching on the
moral obligation of individuals and societies towards the true
religion and the one Church of Christ”. §1, Tanner and Alberigo,
p1002.
It should be noted that this insistence that religious liberty is to be
understood as a liberty specifically in relation to civil institutions,
principally including the state, is repeated by the 1992 Catechism:

Ҥ2108 The right to religious liberty is neither a moral licence to

adhere to error, nor a supposed right to error, but rather a natural
right of the human person to civil liberty, i.e. immunity, within just
limits, from external constraint in religious matters by political
authorities” (my emphases). Catechism of the Catholic Church

The part of the Declaration entitled 'The general principle of

religious freedom' that states and argues for this principle then
relies primarily on appeal to natural reason. For as the Council
admits:
“...revelation does not expressly affirm the right of immunity from
external coercion in religious affairs. §9, Tanner and Alberigo,
p.1006”

Indeed after having stated and argued for 'The general principle of
religious freedom' the declaration states:
“The statements made by this Vatican synod on the right of people
to religious freedom have their basis on the dignity of the person,
the demands of which have come to be more fully known to human
reason from the experience of centuries”. §9, Tanner and Alberigo,
p1006

It is only then in a final section entitled 'Religious freedom in the

light of revelation' that the Council does make some appeal to
revelation, and to the history and past teaching and official conduct
of the Church. But this is certainly not to enunciate a
comprehensive doctrine about the authority of the Church. The
appeal is being made only at the end of the declaration, and only to
support and reinforce a case that has already been made from
reason. And the case is certainly not built on any overall account
of the history, conduct and past teaching on coercion generally of
the Church. Rather two points are emphasised alone. First,
emphasis is placed on what is a clearly revealed doctrine - the
metaphysical freedom of the act of faith:

“And first and foremost religious freedom in the social order is

fully congruent (congrua) with the freedom of the act of christian
faith”. §9, Tanner and Alberigo, p1006

Secondly the conduct of the Church in relation to those already

baptized is not explicitly discussed. Rather, having announced as
one of the chief catholic doctrines that no one must be forced to
embrace the Catholic faith against their will,43 the declaration then
emphasizes the fact that from the apostles on, the Church never, at
least officially, relied on coercion to evangelise the unbaptized.
The declaration's account of Church history in relation to the non-
coercion of faith is entirely centred on the Church's constant
opposition to any coercion of the non-baptized:

“The apostles, taught by Christ's word and example, followed the

same course. From the very beginning of the Church the followers
of Christ strove to convert people to the confession of Christ as
Lord, not by any coercive measures or by devices unworthy of the
Gospel, but chiefly by the power of God's message”. §11, Tanner
and Alberigo, p1008.

There is, it is true, the following rather more general statement

about past Church teaching on coercion:

“Although at times in the life of the people of God, as it has pursued

its pilgrimage through the vicissitudes of human history, there have
been ways of acting less than in conformity to the spirit of the
gospel, indeed contrary to it, nevertheless it has always remained
the teaching of the Church that no one's faith is to be coerced”. §12,
Tanner and Alberigo, p1009
But this statement occurs at the end of a general account of
evangelization of non- Christians and is plausibly to be understood
as referring to the communication of faith in the context of such
evangelization. For read as an account of Church teaching
regarding coercion of the faith of the baptized, and given her own
continuing imposition of penal sanctions on the baptized for the
crimes of heresy and apostasy, this statement about 'what has
always remained the teaching of the Church' would be a plain
falsehood. There is certainly no more detailed account given of the
Church's past teaching on and policy in relation to coercion
generally, and especially with respect to coercion of those already
baptized. But such an account would be deeply relevant to - indeed
a compulsory feature of - any serious account of the jurisdiction
specifically of the Church.

Dignitatis humanae supports its account of Church history by

references, in footnote 8, to the Corpus iuris canonici. This
canonical material is cited by the declaration to support the claim
that the Church historically forbad coercion into the faith. The
material from the Corpus cited is very exact. It specifically
condemns the use of coercion to evangelize the unbaptized, such
as forbidding the coercive baptism of Jews and Moslems. Indeed,
one canonical authority referenced is the fourth council of Toledo
- as we have already seen a central canonical plank for earlier
theological defence of the coercion of the faith of the baptized.
Having condemned coercion into baptism, then, and in exactly the
same passage referred to by Dignitatis humanae, that council
actually and in the same terms and with the same force, demands
coercive measures to retain within the faith those who, having been
baptized, then attempt to leave.44 The declaration is clearly not
telling some story about how Church teaching has always opposed
the coercion of religious belief as such - a story that would anyway
be utterly false. The non-coercive story told is very clearly
restricted to the case of the unbaptized.

Why then in the second section on revelation did the Council

concentrate just on two specific points - the metaphysical freedom
of the act of faith and the Church's teaching and conduct
concerning the evangelisation of the unbaptized? The answer is
that though such a selective treatment both of revelation and of the
past is dangerously misleading for any general account of the
jurisdiction of the Church - and obviously so since the history of
non-coercion given precisely addresses only the conduct of the
Church towards those not yet within her jurisdiction - it is deeply
relevant to what was the Council's true and immediate concern,
which is the coercive authority (or rather lack of it) in matters of
religion of the state and other civil institutions.

Why might the policy of the Church towards those not yet baptized
be peculiarly relevant to an argument concerned with a specifically
civil liberty of religion? After all, it might be thought, states may
well be able licitly to do lots of things not open to, or not the
business of the Church. Why should limits to what the Church can
rightly do, and in one specific case, be relevant to determining
limitations on state action? In fact the answer is fairly obvious.
According to perfectly traditional teaching, the metaphysical
freedom of the act of faith leaves the unbaptized believer standing
in relevantly the same normative relation to the Church as all
people, baptized or unbaptized, stand in relation to the state. So if
revealed teaching rules out coercion into the faith of the unbaptized
by the Church, that supports the case initially made at the level of
reason against religious coercion by the state.
Why is the relation of the metaphysically free believer to Church
or to state in these two cases in relevant respects normatively the
same? Because in both cases the bearer of authority is dealing with
a being in possession of metaphysical freedom who is not yet
bound by any specifically religious obligation to that authority.
Why cannot the Church coerce the unbaptized into Christianity?
Because, the traditional answer would go - we have seen Suarez
give it - although the metaphysically free believer has a moral
obligation to God to believe the true divine revelation, being
unbaptized he has as yet no such obligation to the Church.
Therefore given the person's metaphysical freedom and the lack of
any such obligation binding him specifically to the Church, the
Church simply has no authority to coerce him into Catholic fidelity.
But the same would hold of the state, and whether or not the person
is baptized. He is metaphysically free, has an obligation to God in
respect of the true religion - but whether baptized or not has no
specifically religious obligations to the state. So given that no one
has any religious obligations to the state, the state has no
specifically religious authority, and so no authority of its own to
coerce or direct anyone in any way in religious matters. The
parallel between limits to the coercive powers of the Church and
those of the state is in this particular case exact. The
incompleteness of the declaration's account of Church teaching and
history is not a problem; or, at least, it is not a problem as part of
an argument that is primarily based on natural reason, and that
specifically concerns the coercive jurisdiction not of the Church
herself but of the state and other like civil institutions.

There is a further reason for thinking that Dignitatis humanae does

not address the coercive authority of the Church, and that comes
from outside the text of the declaration itself. This is that the
Conciliar Commission for the declaration actually indicated this at
the Council. For it was objected to the declaration that there were
examples of coercion exercised on the baptized that could be drawn
from the New Testament itself. Indeed, we have seen Suarez and
the official Roman theology of the time of Trent allege just such
cases. In reply the Commission noted:
“Examples and statements brought against the text taken from the
New Testament (and also many from the Old Testament) either
concern the internal life of the religious community of Israel, in
which Jesus and the Apostles lived, or the intra-ecclesial life of the
early Christian community. And the declaration does not treat of
this life”.

And again, in reply to the suggestion that the Declaration affirm as

compatible with religious liberty that the Church use sanctions to
impose her doctrine and discipline on those subject to her, the
commission replied:

“This (proposal) is not admitted, since ecclesial obligation or right

are not treated here, nor is the question of freedom within the
Church herself”.

One thing is now clear. Dignitatis humanae does not address the
coercive jurisdiction of the Church over the baptized. All it
addresses is the authority of states and other civic institutions to
coerce religion. And so on this ground, by virtue of its very subject-
matter, Vatican II's declaration cannot directly contradict Trent's
teaching on coercion of the baptized, if we take that teaching as
Suarez and Bellarmine would have understood it - to concern the
coercive authority of the Church. The Councils are simply teaching
about different kinds of authority: Vatican II is setting limits to the
coercive authority of the state, while Trent is addressing the very
different coercive authority of the Church. But there are also two
further grounds why Vatican II cannot contradict Trent.

The second ground is internal to the declaration Dignitatis

humanae, and it is something which we have already noted. This is
the commitment made at the very beginning of the declaration to
preserving intact traditional teaching concerning the obligations to
the Church of the baptized. The declaration says of itself that it

leaves intact the traditional catholic teaching on the moral

obligation of individuals and societies towards the true religion and
the one Church of Christ.
It is the baptized that have moral obligations of fidelity to the
Church; and it is precisely obligations on the baptized, according
both to traditional Church teaching and modern canon law, that
base and constitute such coercive jurisdiction that the Church
possesses. By this passage, then, the Council expressly ring-fences
its own declaration against interpretations that seek to change that
traditional teaching and so in particular our view of the authority
of the Church to coerce which that teaching defines.
The third reason why Dignitatis humanae cannot impact the
teaching of Trent is that Trent's teaching is given on a matter firmly
within the scope of divine revelation - the obligations on the
faithful generated by the sacrament of baptism - in an
anathematizing canon attached to a dogmatic decree on the same
sacrament, as part of a series of canons condemning what the
Council Fathers clearly regarded as a range of heresies concerning
baptism. Erasmus is a target of dogmatic condemnation along with
Calvin and the Anabaptists. There is nothing of comparable
dogmatic weight in Dignitatis humanae, a declaration on a question
of natural law about the authority of the state and about which, it
appears, no direct revelation has been given, and issued as a
pastoral or non-dogmatic declaration. It looks by contrast as though
Trent's condemnation of Erasmus is infallibly binding and
irreformable. But if Trent's condemnation is dogmatic and
irreformable, it follows that Dignitatis humanae can only bind us
as interpreted to accommodate that condemnation. The
condemnation and what it implies cannot be ignored just to
accommodate Dignitatis humanae.
It might be claimed though that the Vatican II declaration must still
conflict with Trent. Granted, the declaration does not in so many
words specifically address the coercive jurisdiction of the Church.
But still, the way in which Dignitatis humanae addresses the
authority of the state and civil institutions implies, directly and
unavoidably, comparable conclusions concerning the authority of
the Church. The terms in and grounds on which the state is denied
the authority to coerce in matters of religion must in logic apply to
the Church too, and must do so with respect to the Church's
authority over the baptized.

First, does not the declaration talk in many places of limits to the
coercive authority in relation to religion of human authority? To
take an example:

“Such freedom consists in this, that all should have such immunity
from coercion by individuals, or by groups, or by any human power
[ex parte ... cuiusvis potestatis humanae], that no one should be
forced to act against his conscience in religious matters, nor
prevented from acting within his conscience, whether in public or
private, whether alone or in association with others, within due
limits”. ibid para 2 p1002

And is the Church not a human authority - an institution maintained

and governed, at least on earth, by humans? So does not the
declaration apply to it?

But a number of things can be said about this passage. First, the
coercive jurisdiction of the Church has centrally and historically
been aimed at using pressure to form and change consciences, not
at getting people to betray them.47 Secondly the qualifying 'due
limits' referred to in the declaration should surely include any set
by people's obligations under baptism to the Church. For the
declaration commits itself to respecting traditional teaching
concerning these obligations.
But in any case and most importantly, the term 'human power' is
fairly obviously ambiguous. Is the declaration in this and other like
passages to be understood as talking of any authority involving
humans in its exercise; or is it talking of authority that is human in
its nature, in that it serves and is defined in terms of ends that are
natural to humanity? If the former, then the declaration would
surely be committed by its fundamental terminology to teaching
about all forms of coercive authority on this earth, including that of
the Church. But then the structure and argumentation of the
declaration becomes a nonsense. For the declaration itself
expressly states that it is concerned with specifically political or
civil coercion. And it relies primarily on natural reason to give that
teaching, which it could not straightforwardly afford to do if
ecclesial authority and its limits were to be included in its subject.
Moreover the incompleteness of the account given of the past
exercise of ecclesial authority and of past teaching concerning that
authority would then be objectionable, as seriously dishonest and
misleading.

Moreover besides its explicit references to political or civil liberty,

there are other uses of terminology that show that when talking
about 'human' authority, the declaration is concerned specifically
with authority that serves ends natural to humanity, to wit authority
that is civil or political. Thus we read:

“For the practice of religion, of its very nature, consists principally

in internal acts that are voluntary and free, in which one relates
oneself to God directly; and these acts can neither be commanded
nor forbidden by any merely human power [a potestate mere
humana]...” (my emphases)

Now there is not much point to this qualification 'mere' if it were

to refer to the personnel making up the coercing institution. For
there are none on this earth staffed other than by humans. The
reference must be to the basis of the authority and the ends it serves.
In which case it is the state that is concerned, not the Church, which
serves ends that are supernatural, transcending human nature. And
it cannot anyway be denied that as an authority the Church
precisely commands and requires of the baptized that they maintain
and remain true to their baptismal faith. The Church actually does
what the declaration states to be impossible for any 'merely human'
power. That requirement on fidelity in belief remains, as we have
seen, a prominent feature of the Church's present code of canon
law.

But what of the Council's frequently repeated claim that the limits
on the state's power to coerce derive from human nature and its
dignity: does not this dignity ground the same liberty in relation to
the Church, if it grounds the liberty at all? The difficulty with this
line of thought is that it assumes the person-centred conception of
religious liberty in the very strategy it employs to read that
conception into the declaration. The dignity of the person involves
their metaphysical freedom and rationality. And of course if - as
the person-centred conception supposes - those features of our
humanity are sufficient on their own, and apart from any juridical
considerations, to base the right to religious liberty, they suffice to
establish that right for the baptized, even against the Church. But
that of course is the very point at issue. Is the fact that human nature
gives us a right not to be coerced in religion by the state dependent
just on our metaphysical status; or does the generation of this right
also depend on the kind of authority involved and the basis and
extent of its jurisdiction, such as the further fact that we have a
different juridical relation to the state than that we have, through
baptism, to the Church?

The traditional teaching of the Church is that our right to religious

liberty is juridically conditioned, and is not a simple and direct
function of our metaphysical status. The liberty of the baptized is
limited and conditioned by baptismally generated obligations to the
Church. Since Dignitatis humanae can be interpreted - indeed itself
demands that it be interpreted - so as to respect and leave intact
traditional teaching concerning these obligations, then everything
in it has then to be read with the appropriate qualification.
Whenever the right to liberty is grounded by the declaration on
considerations X and Y, it must be left open that X or Y might not
strictly be enough - that also necessary must be an absence of the
kind of normative or juridical relation that a baptized person has to
the Church. What would follow for the baptized given the presence
of that relation must remain up to the traditional teaching to
determine.

And that holds for all the ringing affirmations that pepper
Dignitatis humanae about the value of unconstrained enquiry,
about how coercion of belief and conduct goes against our free and
rational nature, and such like.

But people are only able to meet this obligation [to truth] in ways
that accord with their own nature, if they enjoy both psychological
freedom and freedom from external coercion. Thus the right to
religious freedom is based on human nature itself, not on any
merely personal attitude of mind. Tanner and Alberigo p1003.

These affirmations certainly establish that coercively to pressure

people in the exercise of their metaphysical freedom and their
rationality is, considered in itself, something very undesirable -
indeed that given our rational and free nature, such coercion is an
injury and wrong done to the person coerced unless, of course, the
coercion has some special and weighty justification. The text of the
declaration also states, very clearly, that when the coercion is
applied on political or civic authority, and when moreover it occurs
to pressure someone's religious belief, then such justification is
always lacking. The metaphysical freedom of the believer does in
that case give him an absolute right not to be coerced, a right he
has given the state's lack of any authority to coerce him. But
whether the coercion would be equally wrong when the person is
baptized and the authority behind the coercion is the Church - that
cannot be assumed to follow; and certainly, given the declaration's
self-proclaimed subject-matter and the self-imposed restrictions on
its interpretation, it is not expressly claimed by the declaration
itself to follow.

So when the Council says, for example, that:

“Human beings, redeemed by Christ their saviour and called to
adoptive sonship through Jesus Christ, can only respond to God as
he reveals himself if, with the Father drawing them, they give to
God a free and rational allegiance of faith. It is therefore entirely in
accord with the nature of faith that every kind of human coercion
should be excluded from religion”. Tanner and Alberigo p1007

it all depends what human coercion is involved and on what

grounds. This passage could be read to mean that any coercion
applied by humans on any authority whatsoever is excluded,
because of the freedom and rationality of the believer considered
in itself. Or it could mean coercion is excluded as an exercise of
merely state or civic authority; and it is excluded given the absence
of the juridical authority such coercion would require. And it is the
latter sense that seems to give the proper interpretation of the
declaration.

It might be claimed that the act of faith would not be free or rational
at all if coerced, and this would be so whatever the coercing
authority. But that is not what Vatican II actually claims. It says
that the freedom and rationality of the believer is a justification, or
part of a justification for not coercing faith; not that the freedom
and rationality of the believer makes faith impossible to coerce.
Nor is the last obviously true in any case. For Suarez, as we have
seen, the use of coercive law to direct the faith of the baptized is no
different from any other legitimate use of coercive law. Such fair
use of coercive law involves threatening penalties that, if actually
inflicted, would be deserved. So, as we noted already, for Suarez
the legal coercion of faith presupposes faith's metaphysical
freedom; as with ordinary state law, the legal threat of punishment
serves to direct metaphysical freedom without removing it.

But for Suarez the fair coercive use of law also presupposes a
capacity for rationality in the person coerced and does not remove
or bypass that capacity. The law is not just a brute force, like a kick
or a shove. Pre-modern theology saw coercive penalties as part of
a wider strategy of persuasion that addressed the agent's reason as
well as their freedom. It is often lazily assumed that intellectual
persuasion and the threat of coercive punishment are quite opposed
strategies for altering behaviour. But that was not Suarez's opinion.
Where an authority does have the right to punish, then in his view,
as we have seen, the bearer of that authority can legitimately
combine argumentative persuasion with the threat of coercive
pressure. Now the pressure is indeed intended to motivate
compliance through exploiting dislike of the penalties; but dislike
of the threatened penalties is supposed to work by engaging the
attention of those threatened, and motivating and directing them
seriously to consider what is being argued, thereby facilitating right
understanding. This is precisely how Suarez models the coercion
of believers; as we have already seen him put the matter, coercion
is supposed to help deliver understanding:
“And then the pressure usually gives understanding, so that now
the person believes with a perfect freedom”. Suarez De fide

This means that in relation to belief the function of coercion is not

to replace argument and evidence, but to reinforce them.

Consider again how Suarez describes the coercion of belief. A very

clear example is his illuminating discussion, which we noted
earlier, of the state coercion of belief in rational monotheism - in
natural religion. Though natural religion raises many special
questions, to which we shall be returning, the model of the coercion
of belief that Suarez deploys is both extremely insightful and quite
general in its application. The threat of punishment is not designed
to ram home a blank command that comes quite detached from the
normal bases of belief - from normal evidence or testimony. We
are not being commanded, with threats, to believe something quite
without support, such as that two plus two equals five - a command
that would be wholly ineffective. Rather the threat of punishment
is precisely designed to direct people's attention to the standard
epistemic bases for or routes into holding a belief - either to direct
evidence or reasoning, or to the witness and testimony of those who
know. These ordinary supports for belief are assumed by Suarez to
be available. It is just that some people may wilfully be failing to
consider them. The threatened punishments are supposed to
remedy this problem, by directing people's attention back to the
genuine grounds for the belief - grounds they should have attended
to and been moved by.
Thus in the case of monotheism, the state's threatened sanctions are
supposed to direct more intellectually able subjects to attend for
themselves to the arguments for belief in God and against idolatry;
or if they are less able, to do what we all do in matters where we
have no intellectual expertise ourselves, or where other arguments
and evidence are just unavailable to us - to rely on the authority and
testimony of those who are likely to know:
“even a pagan—that is, a non-Christian—king, if he has a
knowledge of the true God, may coerce his own subjects into
believing that truth (cogere subditos ad idem credendum), either by
their own reasoning if they are educated, or by putting human faith
in more learned men, if they are ignorant; and consequently, he
may compel those same subjects to cease from the worship of idols
and from similar superstitions contrary to natural reason”. Suarez
De fide

Suarez's account of the coercion of belief is not new. It is exactly

the same as is given by Augustine in his account of the use of legal
coercion to end the Donatist schism. Augustine clearly describes
coercion as corrective and instructional in just this way - as
fostering right belief through directing the attention of those
coerced.

“... no one can be good against his own will [a state of faith or
charity is not possible per violentiam, in opposition to the person's
then will]; but still, through fear of some unwanted suffering [the
coercive penalties], someone may either lose his spirit of prejudice,
or be compelled to acquaint himself with previously unknown
truth; so that through his fear he should reject the error he once
defended or attain the truth that he did not know before, and now
hold willingly what once he did not wish to hold...[Coercion directs
attention to the truth and thereby motivates a change of will]....We
see that not just these or those persons, but many whole
communities, once Donatist, now are Catholic, and vehemently
renounce devilish schism, and ardently love unity”. Augustine
epistola 93.1649

The laws imposed by modern states arguably work in just the same
way in relation to the various kinds of non-religious action which
those states justly coerce and direct. The function of penal coercion
in the criminal law is often to use the threat of a penalty to engage
attention and help communicate a message that there are anyway
prior grounds to believe - that the action threatened by punishment
really would be seriously wrong. 50 The punishment of crime is
accompanied, in particular, by public witness given by judges and
other representatives of the state for the prior and genuine
wrongness of what is being punished - and it is this witness, and
not an arbitrary command, that the punishment is designed to ram
home. Sentencing is characteristically accompanied by moral
criticism of the criminal - criticism that is revealed as seriously
meant by the gravity of the punishment. Hence the failure to punish
a crime with a penalty of any seriousness can convey the opposite
message: namely that what was done was not, after all, so seriously
wrong. Which is why in such cases of leniency the outrage of the
victim and their friends may not betoken a desire for vengeance,
but rather resentment at what they take to be a literal
understatement of their rights. The function of sanction-backed
criminal law is in part to drive home an argument and change what
people - not non-rational animals but beings equipped with reason
- actually believe. No matter how terrible and unwarranted the
means adopted by the sixteenth century Church's agents, their
conception of the use of law to coerce the baptized into meeting
their obligations was not so very different. The canonical
punishments for heresy and the like threatened by the counter-
reformation Church, or by the modern Church, are no different in
general function from those threatened by today's liberal state: to
communicate testimony or witness to the truth given by
representatives of the coercing authority - witness or testimony that
should anyway be enough to support and warrant assent; and by
impelling attention to the message and its grounds, to pressure
those subject to the authority into believing it.

So when Dignitatis humanae says in its first introductory

paragraph that 'truth imposes itself solely by the force of its own
truth' this cannot sensibly be understood to rule out the use of
coercive penalties to communicate truth and to persuade. The
modern liberal state makes such use of penalties the whole time.
Of course coming to believe a claim, whether through uncoerced
enquiry or after being subject to coercive pressure, is indeed always
to come to see the claim as true. Coercive pressure cannot bypass
this essential feature of belief. One cannot come to believe a claim
just as a strategy for avoiding a punishment, but without ipso facto
coming to see that claim as true. So coercive pressure to be
effective in communicating belief must operate exactly as Suarez
envisaged. It must affect how the truth appears, and do so by
leading people to attend to genuine grounds for the belief by way
of evidence or testimony. And certainly in so far as the truth does
then actually 'impose itself' on one's belief, one will indeed come
to believe the truth because it is the truth - just by the force of its
own truth, because that is how the truth now appears.

But is the Church not herself called upon by Dignitatis humanae

to respect and protect religious liberty? In which case after all the
declaration does directly address the coercive authority of the
Church. For we read:

Hence protection of the right to religious freedom lies with

individual citizens and with social groups, with the civil
authorities, with the Church and other religious communities, each
in their own way in view of their obligations to the common good.
para 6 p1005

However this sort of passage settles nothing. For determining the

content of this passage quite plainly presupposes an understanding
of the nature of the right to be protected, and against whom the
right is held. Is it a right not to be coerced in religion by anyone on
any authority? But that right is not the subject-matter of the
declaration. Or is it a civic or political right - a right of citizens not
to be coerced by the state or other forms of civic authority? That
plainly is the subject-matter of the declaration, and of course the
Church is committed to the protection of that right. But that
commitment would not preclude the Church from exercising
coercive power over the baptized on her own authority.

Of course much coercion of the faithful, at least of the more

distantly historical sort, has been imposed or threatened through
officials of the state. Heretics were not only often handed over to
the secular arm to meet their punishment. Their initial prosecution,
conviction and sentencing might even be under state or civil heresy
laws. At least this sort of state procedure, it might be thought, must
be excluded by the declaration. The state should not be involved in
any way in the deliberate coercion of religion.

And certainly, this is something that Dignitatis humanae very

clearly asserts:
“It follows from this that it is wrong for a civil power to use force
or fear or other means to impose the acceptance or rejection of any
religion, or to prevent anyone from entering or leaving a religious
body”. p1005 para 6.

But here we come across a certain deep irony. Given its subject
matter and the self- imposed restrictions on its scope, even on this
issue the true ground of the declaration is not so obvious. For there
are two quite distinct bases on which the state might seek to coerce
religion: either on its own authority, or acting out of a delegated
competence, through obligation to another competent authority and
on its say-so. The distinction is very important.

For as we have seen official Roman theology never viewed

coercion of the baptized as a legitimate exercise of state authority.
Rather such coercion was legitimate only because it involved some
baptized Christians - rulers and officials of Christian states -
fulfilling their baptismal obligations to the Church in lending her
their power and resources to hold other baptized Christians to their
baptismal obligations. As regards any form of authority native to
the state, the coercive enforcement of fidelity to the true religion
was always ultra vires - quite beyond the state's own competence.
So when Dignitatis humanae declares:

“Furthermore, those private and public acts of religion by which

people relate themselves to God from the sincerity of their hearts,
of their nature transcend the earthly and temporal levels of reality.
So the state, whose peculiar purpose it is to provide for the temporal
common good, should certainly recognise and promote the
religious life of its citizens. With equal certainty it exceeds the
limits of its authority if it takes upon itself to direct or prevent
religious activity (sed limites suos excedere dicenda est, si actus
religiosos dirigere vel impedire praesumat)”. (my emphases)
Tanner and Alberigo p1004

it turns out that as regards the coercion of heretics, Suarez thought

no different:
“Punishment of crimes only belongs to civil magistrates in so far
as those crimes are contrary to political ends, public peace and
human justice; but coercion with respect to those deeds which are
opposed to religion and to the salvation of the soul, is essentially a
function of spiritual power, so that the authority to make use of
temporal penalties for the purposes of such correction must have
been allotted in particular to this spiritual power, whether the
penalties are to be inflicted directly by the said power, or whether
it avails itself of the ministry of its temporal arm that all things may
be done decently, in order and efficaciously”. Defensio fidei
catholicae
What licensed the state's involvement in the repression of heresy
was always the authority of the Church and her coercive
jurisdiction over the baptized, both over officials acting as agents
bound through baptism to aid her in her supernatural ends, and over
the subjects being penally coerced. Since Dignitatis humanae does
not, and cannot, directly address this jurisdiction and the traditional
teaching about it, the precise basis of the illicitness of the state's
involvement in religious coercion is left open.

It is clear, according to Dignitatis humanae, that (save to protect

just public order) the state cannot coerce in matters of religion on
its own authority. Moreover the Church, in issuing Dignitatis
humanae with its denunciations of any coercion of religion by the
state, is, at the very least, now denying the state any delegation of
the Church's own authority to coerce. And given that refusal to
delegate, any involvement of the state in the deliberate coercion of
religious belief must indeed be quite wrong, just as Dignitatis
humanae asserts. But does that mean that the Church lacks even
the authority to delegate the exercise of her own coercive power,
by commanding the assistance of baptized officials in the
enforcement of her own jurisdiction over the baptized? If
circumstances ever changed, so that the modern western state with
its commitment to pluralism in matters of religion ceased to
function as a political paradigm - and perhaps such a development
could not be ruled out for future centuries - could the Church ever
once again call upon the secular arm as she once did, and do so
licitly? That would all depend on how the baptized, including
baptized rulers and officials, are bound to the Church and what
obligations they have to her, and this aspect of traditional Catholic
teaching would have to be examined further. But Vatican II
expressly does not address the obligations to the Church of the
baptized, and expressly leaves traditional teaching about that
subject quite untouched. Clearly the matter cannot be answered by
simple recourse to Vatican II's declaration about another subject -
the authority of the state itself.

One thing is clear. It is evident that for the foreseeable future the
modern Church would always refuse to involve the state in
religious coercion in the ways that, in Ancien Regime Europe, she
once did. And given this refusal to delegate authority on the part of
the Church, the state will indeed have no justification for
involvement in the coercion of religion. Moreover there may also
be compelling moral grounds for the Church's refusal to call upon
the state as she once did, even apart from the fact that no state
would now respond to such a call. But it is not obvious that the text
of Dignitatis humanae is what blocks the Church from ever so
employing its authority. And that, again, is because Dignitatis
humanae simply does not directly engage with the Church's own
authority and with the extent of and limits to her coercive
jurisdiction over the baptized.

7. Conclusion

The person-centred view of religious liberty is that all people have

a uniform right not to be coerced in religious belief or practice - a
right generated immediately by the metaphysical dignity of the
person, and in particular by the person's metaphysical freedom and
rationality. And it is generally taken for granted that the person-
centred view is straightforwardly taught by Dignitatis humanae,
which certainly does express itself by appeal to human nature and
its dignity. But such a reading assumes that the subject-matter of
the declaration is religious liberty and coercion in all their forms.
And that is not the subject-matter which the declaration itself
claims to address. Instead the declaration proposes to address a
specifically political or civil liberty, and its argument and structure
make no sense on any other assumption. Moreover traditional
teaching on the obligations that base ecclesial jurisdiction and
coercion is expressly left intact. This leaves it open for us to give
Dignitatis humanae a jurisdiction-centred reading. And that
reading seems forced on us by the dogmatic nature of Trent's
decree on baptism; as arguably it is also forced on us by the canon
law of the Church in its present as in its earlier forms. The Church's
canon law forms a structure of laws and penalties coercively
directing the baptized; and what this structure aims coercively to
enforce on the baptized, however restrained and limited in its
present application and methods it has become, is, quite
unsurprisingly, fidelity to Catholic belief and practice. 51
“If an authority exists that is empowered to restrain men from
public action in accord with their religious beliefs, this authority
can reside only in government, which presides over the juridical
and social order”. John Courtney Murray 'The Declaration on
religious freedom' in Vatican II: An Interfaith Appraisal, edited by
John H. Miller. Notre Dame: Association Press, 1966, pp565–76

And again

“The theological argument [for liberty of inner belief or

conscience] is the tradition with regard to the necessary freedom of
the act of faith which runs unbrokenly from the text of the New
Testament to the Code of Canon Law. This tenet of Catholic
doctrine is held no less firmly by all who bear the name of
Christian. In fact, even the atheist holds it. It is part of the human
patrimony of truth, embedded in the common consciousness of
mankind. The ethical argument is the immunity of conscience from
coercion in its internal religious”

What is the force of Trent's condemnation of Erasmus, understood

within its theological context? We cannot deal with all the
questions that this condemnation raises here. But at the very least
it must serve to give dogmatic force to a fundamental claim about
the Catholic Church. Part of the authority she has from God to bind
and loose is the authority coercively to hold the Christian faithful
true to baptismal obligations - obligations to belief and practice that
they can have incurred at baptism without their personal consent,
and that continue to bind them once baptized irrespective of
whether they still consent.

How far this coercive authority might extend and how and under
what conditions the Church might with strict right give it
expression in various possible canonical obligations or penalties -
that must be a question for dogmatic and moral theology. And this
question has largely been ignored by modern Catholic theology,
though it was, rightly, a central concern for Suarez. One obvious
failing in the modern Church is a lack of any serious reflection,
informed by an honest and comprehensive attention to Catholic
tradition, on the dogmatic basis for and true extent of her own
authority to coerce. The New Commentary on the Code of Canon
Law plaintively complains of the section of the 1983 code that
asserts the Church's authority to impose punishments:

“Despite requests for a statement of the theological-canonical

foundations of the Church's penal authority, the code simply
affirms the Church's innate and proper right to penalize
lawbreakers. Generally the code commission avoided dealing with
foundational theological”- canonical issues. p1533
But addressing such issues is not the peculiar responsibility of
ecclesiastical codifiers, or even of canon lawyers. Certainly the
authors of the New Commentary do nothing much to supply the
theological lack of which they themselves complain. For canon law
certainly exhibits how the Church has actually chosen to exercise
her coercive authority at a given period. But canon law does not,
on its own, resolve all doctrinal issues concerning the scope and
limits of that authority. For very good and compelling reasons the
Church might sometimes choose not to exercise an authority that is
hers of strict right, and choose not to impose coercive sanctions that
strictly she might have legitimately imposed. She might even
come, and for very good reasons, canonically to forbid forms of
coercion that once, at earlier times, she permitted and even
legitimately encouraged, and that she retains the authority one day
to apply again. The Church's true coercive authority, and the actual
content and character of the Church's canon law at any given time
in history - these might turn out to be significantly different things.
The question of the Church's full authority to direct and authorize
coercion is then a dogmatic issue, not a purely canonical one.52

What then is the force of Dignitatis humanae? This declaration, we

have shown, is about political or civil authority. And at the very
least when understood (as it must be) in the context of Catholic
teaching as a whole, the declaration of Vatican II tells us that the
human state possesses no authority to coerce religious faith and
practice as does the Church. And it is plain why that should be so.
The limits to state authority are fixed by natural law, since the ends
natively served by the state are ones specific to human nature.
While the Church serves supernatural ends and so ends that
transcend human nature; and it is this fact which prevents the nature
and extent of the human right to liberty from being fixed in the
same way for every kind of authority by human nature on its own.
For the point to our exercise of metaphysical freedom lies in a
destiny beyond anything human nature can of itself attain or to
which 'merely human' political and civic institutions can direct us.
Which is why subjects of the state have no obligations to it in
matters of religion comparable to those that the baptized have to
the Church. It is that supernatural destiny - the life not under nature
but under grace to which baptism admits us - that fixes both the
nature and extent of the right to liberty of the baptized, and the
authority of the Church legally and so coercively to govern and
guide the baptized to that end.

Dignitatis humanae does not, after all, present a quite general

theory of the human right to religious liberty, constraining the
Church's authority coercively to direct the baptized on the same
basis as it constrains the state in relation to the citizen. To misread
the declaration in these person-centred terms is in fact a form of
Pelagianism - a reduction of life through and according to grace
down to the level of life through and according to nature. It is to
treat the Church as if she were just another political or civic
institution, serving natural ends and directing us in the exercise of
merely natural capacities to those ends.

Dignitatis humanae has often been seen, both by celebrants and by

detractors, as a text in which the Catholic Church finally absorbed
and internalised the Enlightenment - as a marriage deed between
Catholicism and liberalism. And certainly the declaration's
description of the human person in relation to the state is
profoundly marked by the outlook of the Enlightenment. But it is a
gross mistake to see the declaration as anything even approaching
a marriage with modern liberalism. For the language and
argumentation of secular liberalism is used - but to state
authoritatively limitations on state authority in religion that, if the
distinctively supernatural function and authority of the Church is
to be respected, cannot have a purely secular liberal rationale. And
Dignitatis humanae itself reveals the true rationale. Human nature
imposes restrictions on state authority in religion - but not just
because human freedom and rationality would impose those
restrictions on any authority. In so far as humans are religious, their
freedom and rationality are involved in an orientation to a
supernatural end with respect to which the state has no legislative
competence. And that is what bars the state from presuming to
coerce religious belief and practice. As Dignitatis humanae says:

“Furthermore, those private and public acts of religion by which

people relate themselves to God from the sincerity of their hearts,
of their nature transcend the earthly and temporal levels of reality.
So the state, whose peculiar purpose it is to provide for the
temporal common good, should certainly recognise and promote
the religious life of its citizens. With equal certainty it exceeds the
limits of its authority if it takes upon itself to direct or prevent
religious activity”.

But as we have seen, it was precisely on this ground - that the state's
own authority to coerce serves only natural ends - that the counter-
reformation theology of Suarez also denied the state any authority
to coerce the baptized into fidelity to their baptism.
The Church remains dogmatically committed to her possession of
a coercive power over the baptized unlike any that liberals would
accord the state over its citizens. The Church is given, by virtue of
a mission that transcends nature, a coercive authority over her
members to hold them to the faith - though how extensive this
authority might be and how it might properly be exercised we have
not yet determined; and this authority is of a kind that no earthly
state can possess over anyone, and which (as Trent clearly
indicates) the individual, once baptized, cannot throw off at will.

Further defence of the Church's possession of this authority and

discussion of its true limits is a task for another place. What must
be clear is that Catholicism is as dogmatically committed to the
existence of this authority as in the days of the counter-reformation,
however brutally or excessively that authority was then applied.

Dignitatis humanae is not then, when read carefully and in the

context of the rest of Catholic teaching, a charter for some liberal
New Pentecost that subordinates ecclesial authority to the same
limitations to coercive direction in matters of religion that would
apply to the state. Like so much else that occurs at and after Vatican
II, the declaration is rather a working out of trends and
developments within the Ultramontane theology of the nineteenth
century and of Vatican I. At Vatican I Pastor aeternus claimed on
behalf of the papacy a juridical authority over the Church that was
supreme - and hence denied the state any ultimate authority over
the Church. In Dignitatis humanae the state is now denied any
authority over religion as such. The religious capacity of man,
precisely because it orients him to a supernatural end transcending
nature, removes him in matters specific to religion from coercive
direction by the state. But it does not follow at all that the religious
capacity of the baptized is in exactly the same way removed from
coercive direction by the Church - the divine institution that, once
someone is baptized into the new life of Christ under grace and so
to into her jurisdiction, directs them to that same supernatural end.

It is in relation to the supernatural orientation of religion as such

that we should understand what is an important aspect of Dignitatis
humanae, namely its implications for coercion by the state of
subjects into a natural law-based rational monotheism. Suarez, we
saw, attributed a native right and duty to the state under natural law
to coerce the belief of its subjects, not into any revealed religion,
but into rational monotheism. This specific element to Suarez's
view of religious coercion was not, of course, endorsed by Trent,
which deals with coercion of the baptized into Catholic fidelity.
And it is now denied by Vatican II, at least by direct implication.
The state has no more business coercing its subjects into
monotheism than it has coercing them into Catholicism.

But this denial to the state of any native authority legislatively to

direct and coerce in matters of religion is not obviously just a
development of Vatican II. It was already being taught in the
magisterium of Leo XIII. And it was taught by that Pope in relation
to what seems to be an important and further assumption - that
religion as such is in some way related to, at least in function or
preparation, what is the Church’s peculiar concern, namely the
supernatural end that only Catholic faith can finally deliver, which
is the attainment of heaven

“In truth Jesus Christ gave his Apostles free authority in matters
sacred, together with a true power to legislate and what follows
therefrom, the twofold power to judge and to punish... Hence, it is
the Church, and not the State, that is to be man's guide to heaven:
and it is to the same Church that God has assigned the charge of
seeing to, and legislating for, what concerns religion”. Leo XIII
Immortale dei §11

And again:

“The Almighty, therefore, has given the charge of the human race
to two powers, the ecclesiastical and the civil, the one being set
over divine, the other over human, things... While one of the two
powers has for its immediate and chief object care of the goods of
this mortal life, the other provides for goods that are heavenly and
everlasting. Whatever, therefore, in things human is in any way of
a sacred character, whatever belongs either of its own nature or by
reason of the end to which it is referred, to the salvation of souls or
to the worship of God, is subject to the power and judgment of the
Church. Whatever is to be ranged under the civil and political order
is rightly subject to the civil authority”. Leo XIII Immortale dei
§13-§14

The divine or sacred as such, including any worship of God, is

related or referred by Leo XIII to something beyond merely natural
happiness. It is referred to the attainment of heaven, a good that
only the Church can provide, and so to a supernatural end within
the directive competence of the Church rather than the state. There
is in these passages of Leo nothing quite like what is very much
part of Suarez’s conception of religion: a distinct category of
religion that is the native concern of the state rather than the
Church, and that is entirely natural rather than supernatural in its
orientation, but that is still directed at and involving of the divine.

Dignitatis humanae's implied denial of a native state authority to

legislate for and coerce into rational monotheism may then involve
neither the absorption of secular liberalism, nor a development
entirely novel to Vatican II. What it may involve instead is a certain
view of the proper orientation, at least in the context of the New
Covenant, of human religious activity.

Given Vatican I's dogmatic teaching of the natural knowability of

God's existence, it is at least very arguable that there is indeed such
a thing as rational religion - a cult of the one God that is available
to natural reason, and so a form of religion that can exist at the level
of the natural reason, just as Suarez supposed. But even if this is
so, and whatever might have been the case had Providence not
quite gratuitously destined us for a supernatural end, it does not
follow that, given the actual offer of supernatural redemption
through the Church, the state still has the native authority to direct
and enforce religion even at this natural level. This still does not
follow if, given the free offer of divine grace to salvation, the
divinely willed orientation of all human religious activity is now
towards the supernatural end proclaimed in Catholic revelation and
offered through the Church. But that supernatural orientation to all
religion is arguably the view taken of religion in general by Vatican
II. For in the decree on non-Christian religions Nostra aetate Christ
is described as he

'in whom people find the fullness of religious life (plenitudinem

vitae religiosae)' Nostra Aetate §2, Tanner and Alberigo p969.

Religion, though it may exist at a form available to reason alone, is

now, even in that rationally available form, fundamentally re-
oriented, through Christ, towards an end beyond the purely natural
happiness that is the state's concern. As far as religion is concerned,
its proper direction is no longer to be determined by reference to a
purely natural order for which the state can be responsible on its
own authority in the way that Suarez supposed. The ultimate
orientation of any form of religion, even irrational polytheism, is
always towards the supernatural happiness offered and revealed in
Christ. And it is for that reason, and not because of some perfectly
general right to freedom from religious coercion by authorities in
general, that the state cannot coerce people even into monotheism.
It cannot intrude on an activity oriented towards a supernatural end
proper to the Church and served by her ecclesial authority - albeit
an ecclesial authority that obligates fidelity to the Church only on
the baptized, and that can be exercised therefore only over or
through the baptized.53

The problem of religious liberty, it now appears, is considerably

more complex than we at first supposed. It combines a problem
about coercive political authority under natural law with a problem
about coercive ecclesial authority under divine law. This was fully
realised in the counter-reformation Church, where in treatments of
the subject what we would now view as political philosophy was
combined with extensive theological commentary on canon law.
Indeed, if anything, at that date the problem of religious liberty was
often treated as very centrally, even primarily, a canon law
problem, especially in the Roman College theology of a writer such
as Suarez. In this view, it is to a very large extent the law of the
Church which settles the required treatment at the hands of the state
of baptized Christians and even - such as by forbidding their
coercion into the faith, but by allowing restrictions of their worship
to distance it from the lives of Christians - of non-Christian
monotheists such as Jews and Moslems. For the state is supposed
to function in relation to Christianity mainly as an agent of the
Catholic Church. This supposition was never shared in full by
many Gallicans and regalists, and it was in practice anyway often
more hope than reality, as numbers of Catholic princes, such as in
important parts of the Holy Roman Empire, often preferred to
pursue social peace through toleration than attempt a rigorous
enforcement of baptismal commitments on their Protestant
subjects.

The counter-reformation papacy's policy was to use the Church’s

jurisdiction over the baptized to repress Protestantism through an
aggressive policy of coercive conversion. Although successful
locally and for a time - witness the recovery of much of a
previously Protestantized Habsburg Austria and Bohemia - this
policy failed in its global objective, and the methods applied in its
pursuit came to be seen, by Catholics themselves, as offensive. At
the same time the vision of the state as being the Church's agent in
the enforcement of her ecclesial jurisdiction became increasingly
obviously unattainable. Even in the Catholic world, the state's
action in the religious sphere would increasingly have to be
considered on its own terms - principally as the exercise of its own
authority, and justified or not as so considered.

By the nineteenth century the papacy had moved to that

distinctively modern policy which the Church of Vatican II is
simply continuing - a policy of living in peace with and alongside
Protestantism, as opposed to seeking to coerce it out of existence.
And so began to die the conception of religious liberty as being
principally a canonical problem. As a practical concern, the
coercive jurisdiction of the Church became increasingly an internal
matter, its extension to the Protestant baptized of decreasing
practical relevance. Ultimately, by the twentieth century, the
pressing problem facing the Church was becoming that of states
that were either indifferent to the Church and her teaching, or that
in increasing numbers aggressively directed their authority against
her. That the Church is herself a coercive authority would
increasingly be talked down or just ignored - at least outside the
discipline of canon law itself, in which the coercive regulation of
the faithful by the Church is of course the very object of study. The
problem of religious liberty could from now on be taken as a
problem primarily about reaffirming the limits to the authority of
the state in matters religious. It was inevitable that sooner or later
what in fact are broadly traditional limits to native state authority
in religious matters - how traditional they are we have seen from
the Jesuit theology of the counter-reformation - would indeed be
reaffirmed, but in the convenient and attractive new packaging of
the language of a liberal conception of the state. And indeed,
though Dignitatis humanae was very carefully formulated to be
consistent with past tradition, it was also bound to happen that the
declaration would be misinterpreted, and a liberal conception of the
state should, thanks to this misreading, infect conceptions of the
Church and her authority too, and in a way disconnected from
canonical reality. The political would annexe the ecclesial.

But the political case does not exhaust the subject, as the dogmatic
teaching of Trent has shown. And deep theological principles are
at stake. Although the language of Vatican II's declaration is often
that of secular liberalism, when integrated into tradition the
fundamental structure really is quite different. Faith is free from
coercion by the state not because of some secular doctrine of simple
respect for persons owed equally by all authorities, but because, as
Dignitatis humanae itself states, our metaphysical freedom is
oriented toward an end that transcends nature, an end to which the
baptized are directed through the authority of the Church. And this
being the true basis of limitations to state authority over religion,
there is no reason why the authority of the Church should be limited
in exactly the same way. Religious liberty is a topic which we shall
only fully understand once we extract ourselves from the
perspective of our immediate political context, and reintegrate
Vatican II and its decrees into the teaching of the magisterium as a
whole and into a richer view of the theological tradition. And so I
have tried here to begin to do.
Thomas Pink
Professor of Philosophy King's College London

Suarez and Bellarmine on the Church

as Coercive Lawgiver
1. Thomas Hobbes against canon law
A central preoccupation of Hobbes in Leviathan was the historical
Catholic claim that, just as much as any State, the Church has the
authority and jurisdiction to make obligatory law, and to enforce
that law by threat of punishment. The Church not only has the right
to teach, but to coerce.1 The canon law of the Church is as genuine
a form of enforce- able, obligation-imposing positive law as is the
civil law of the State.

Hobbes denied that the Church can licitly coerce as well as teach.
Only the State had the right to legislate and punish. Properly under-
stood, canonical regulation was only ever obligatory law if
voluntarily legislated and enforced as part of their own civil law by
the rulers of states, the only true possessors of coercive authority:

From the same mistaking of the present Church for the Kingdom
of God, came in the distinction between the Civill and the Canon
Laws: The Civil Law being the Acts of Soveraigns in their own
Dominions, and the Canon Law being the acts of the Pope in the
same Dominions. Which Canons, though they were but Canons,
that is, Rules Propounded, and but voluntarily received by
Christian Princes, till the translation of the Empire to Charlemain;
yet after-wards, as the power of the Pope increased, became Rules
Commanded, and the Emperours themselves (to avoyd greater
mischiefes, which the people blinded might be led into) were
forced to let them pass for Laws2.

At the heart of the canonical system, as understood by the Church,

is the sacrament of baptism. Baptism, which all Christians share,
conveys divine grace and gives membership of the Church. In the
canonical system, understood as a system of obligatory law, in
conveying Church membership, baptism also subjects the baptized
to ecclesiastical juris- diction, and brings with it obligations
specifically to the Church, which the Church can then legally
enforce. In particular, baptism brings with it an obligation to faith
– to belief in the revelation to which the Church bears witness –
which is enforced through the canon law forbidding heresy and
apostasy3. As Hobbes observed, the Church of his time might even
enforce this obligation to Catholic faith on Protestants, who are
validly baptized, and so subject to ecclesiastical jurisdiction, and
who in this respect differ from Jews and Moslems, who are
exempt4. And so Hobbes complained:

From hence it is, that in all Dominions where the Popes

Ecclesiasticall power is entirely received, Jewes, Turkes, and
Gentiles, are in the Roman Church tolerated in their Religion, as
farre forth, as in the exercise and profession thereof they offend not
against the civill power: whereas in a Christian, though a stranger,
not to be of the Roman religion, is Capitall; because the Pope
pretendeth that all Christians are his Subjects. For otherwise it were
as much against the law of Nations to persecute a Christian
stranger, for profess- ing the Religion of his owne country, as an
Infidell; or rather more, inasmuch as they that are not against
Christ, are with him5.

Enforcement of the canon law on heresy, as of canon law on other

matters, historically involved not just the Church, but also the
Christian State. But this involvement of the State was understood
by the Church of Hobbes’s time not as the State’s voluntary
cooperation under its own authority, but as fulfilling an obligation
on the State to enforce the Church’s authority. Christian rulers were
bound by their own baptism not only to meet canonical obligations
themselves, but to help enforce them on their baptized subjects6.
Thus the Church’s canonical regulation not only claimed the force
of binding and enforceable law, but came to colonise the civil law
of the State, treating the baptized rulers of Christian states as, in
religious matters, the agents of the Church, coercing their subjects
on her behalf.

Hobbes’s rejection of the canonical system was in part an assertion

of the authority of the State against the Church. Hobbes would not
tolerate any rival bearer of the coercive authority that Leviathan
reserves to the State alone, no more in the field of religion than
elsewhere. A particular target was the political theology of Robert
Bellarmine, which Hobbes repeatedly and critically addressed
through the last two books of Leviathan, in “Of The Christian
Commonwealth” and “Of the Kingdom of Darkness”.

But there was a deeper conflict, fundamental to the whole argument

of Leviathan, about the very nature of coercive authority. For the
model of coercive authority that Hobbes was attacking as much
involved a distinctive conception of State authority as of Church
authority. Suarez and Bellarmine saw the direction given to its
subjects by any sovereign authority, be it State or Church, as
combining two things. It both threatens force, and communicates
belief. The imposition of obligations, and their enforcement by
threat of punishment, is inescapably a form of instruction.
Legitimate and well-crafted punitive law not only does not repress
or bypass our reason, but in addressing our reason also enhances it,
conveying true belief and understanding. This view of coercive
authority as educative was of course well suited to the Church’s
own conception of her central purpose as an authority – to teach
and communicate the faith. But it also drew from a conception of
the State as a coercive teacher that long preceded Christianity and
that we find in Aristotle.

Whereas for Hobbes the communication of belief and coercive di-

rection must be quite separate. In so far as it is directing action by
coercive pressure, the State cannot also be functioning as a teacher;
the State cannot be using coercive pressure to inform people and
change what they believe. While as teacher the Church cannot also
function as coercer; in addressing belief, the Church is merely a
source of spiritual counsel, not of coercive command. The
communication of belief was separated by Hobbes from direction
enforced by punishments, and the coercive role of the State
changed from that of educator into that of coordinator of human
action.

In Leviathan Hobbes was not simply engaging in a turf war, on the

State’s behalf, against the claims of a potential ecclesial rival. He
was doing something more far-reaching. Hobbes was embarking
on an important revolution in thinking about the very nature of
coercion, and about the role of the State itself.

2. Law and liberty

Fundamental to Hobbes’s attack on the canonical system is a

dispute about the nature of law and about the basis of law in our
human nature and capacities. A central question is the relation
between law and hu- man freedom or liberty. So we must begin by
examining the theory of law we find in late scholasticism, and
especially in Bellarmine and Suarez – giving particular attention to
Suarez, who of the two writers was by far the more systematic and
searching thinker.

For scholastic ethical theory, law is closely bound up with one very
special and distinctive human capacity – human freedom
understood as a power or capacity to determine outcomes. We
naturally think of our- selves as having a power to determine for
ourselves how we decide and act. This power of self-determination,
which philosophers call freedom or free will, is multi-way, making
alternatives by way of decision and action available to us. It is up
to me whether I walk away or remain where I am – and also up to
me which of these actions I decide to perform. I have control over
which actions I perform, and, beforehand, over which actions I
decide to perform.

Law, for Suarez, is an especially directive form taken by reason,

one that recognizes and guides our capacity for freedom, and in two
contrasting ways. First, law affords us rights, and in particular a
right to liberty, a right that limits just coercion. At the same time
law imposes obligations – obligation being termed by Suarez a vis
directiva or directive force – that bind us to exercise freedom in
ways that are good rather than bad; and such obligations may,
under certain conditions, be justly and coercively enforced. In both
cases, in giving us a right to liberty that blocks our coercion, and in
imposing obligations on us that may permit our coercion, law is
giving normative recognition to our possession of freedom as a
power. This means, as we shall see, that in scholastic ethical theory
freedom or free will possesses a dual normative significance. Like
the law that gives it recognition, our free will is both a normative
block to coercion, and a normative enabler of it.

How is our free will taken to base a right to liberty? The answer is
simple. Freedom is a power to determine for ourselves what we do.
And the right to liberty is understood by Suarez as the right to
exercise this power – as the right to determine for ourselves what
we do. The power bases the right because the right concerns the
power. How, without the power, could we possess the right to
exercise it? In everyday English we can use the same terms both to
assert our possession of freedom as a power and to assert freedom
as a right. I might say: «It’s up to me what I do» simply to report
that I actually do possess control over what I do. But I could also
use the phrase to assert not the power but the right – as a right not
to be coerced. If you attempt to direct me to do something, and back
this direction up with threats, I might protest: «Don’t you tell me
what to do; it is up to me what I do». In the scholastic tradition we
find the same shifting application of terms to assert both the power
and the right. Dominium can mean freedom or libertas as a power;
or it can used, as in dominium libertatis, to mean the right to
exercise the power:
‘If, however, we are speaking of the natural law of dominion, it is
then true that liberty is a matter of natural law, in a positive, not
merely a negative sense, since nature itself confers upon man the
true dominion of his liberty (dominium libertatis). For liberty rather
than slavery is of natural right, for this reason, namely, that nature
has made men free in a positive sense (so to speak) with an intrinsic
right to liberty, whereas it has not made them slaves in this positive
sense, strictly speaking’7.
The right to liberty does not rule all coercion out as illegitimate.
But it does establish that no individual naturally has the right
coercively to direct another. Coercion, if legitimate, requires
special justification. In particular it requires some form of public
authority with jurisdiction. That jurisdiction must extend to the
kind of activity that the authority is seeking punitively to direct;
and the individual being directed must fall under that jurisdiction.

But once this condition on public authority is met, our power of

freedom ceases normatively to block our coercion, and comes
normatively to enable it. For freedom, as a power over alternatives,
needs the direction, away from bad alternatives and towards the
good, which legal obligations provide. And freedom also makes us
truly, morally responsible for what we do, so that if we disregard
obligations and breach them, we can be fairly punished for the
breach. Freedom is the basis of desert of punishment.
This dual significance of free will, as a basis of right and of
obligation, and so as a block to coercion and an enabler of it, goes
far back in the canonical tradition, and is embedded in the
traditional theology of baptism and of baptism’s juridical
significance. A much cited canonical text, important both for the
Council of Trent and for the Second Vatican Council, is the fourth
Council of Toledo’s ruling on coercion in relation to baptism – the
basis of the Church’s own coercive jurisdiction.8 No one may
rightly be coerced into baptism or into the act of faith – for faith
involves free will. But once someone is validly baptized (even if
through illicit pressure), their free will ceases to protect them from
coercion. In the baptized the act of faith can licitly be coerced –
and should be, in those unwilling to meet the obligation to faith that
baptism brings with it:

“This holy synod teaches however concerning the Jews that no one
then is to be forced to believe (nemini deinceps vim ad credendum
inferre). God has mer- cy as he pleases, and hardens hearts as he
pleases. People are not to be saved against their will, but willingly,
that the demands of justice be respected. For as man perished in
obedience to the serpent by his own will (propria arbitrii
voluntate) so too through the call of divine grace each person is
saved through the conversion of his own mind in faith. Thus people
are to be persuaded to convert by free will (libera arbitrii
facultate), not compelled by force. As for those who have already
been compelled into Christianity (as was done in the times of the
most pious ruler Sisebut) since they are already linked to the holy
sacraments and have received the grace of baptism, and been
anointed with chrism, and have publicly partaken of the body of
the Lord, it is required that they be compelled to hold the faith that
they received by force or necessity, lest the name of the Lord be
blasphemed and the faith that they received be held vile and
contemptible”9.

By the time of Suarez, Toledo IV was integrated into a developed

theory of right and obligation. The free will of the unbaptized gave
them a right not to be coerced by the Church into the faith, and that
was because the unbaptized lay outside ecclesial jurisdiction. But
once baptism put people within the Church’s jurisdiction, that same
free will then underpinned an obligation to faith that the Church
could legitimately enforce. Enforcement would be fair given the
obligation to the Church that baptism brought with it, and given
people’s genuine moral responsibility for what they freely believed
or failed to. Breach of the obligation to faith, in heresy or apostasy,
when culpable, could be punished as a canonical offence.
“But in truth the baptized are under an obligation both to God and
the the Church to remain in the faith or to return to it”10.

For the scholastic tradition, then, law and freedom are intimately
related. In affording a right to liberty, and then in licensing
limitation of that liberty through punitively enforced obligations,
law is combining two modes by which the human power of free
will or freedom is given normative recognition.

Hobbes was deeply opposed to this view of law because he denied

the very possibility of freedom as a power. There could be no such
thing as a human power of self-determination because the very
formulation of it was viciously regressive: «And if a man determine
himself, the question will still remain what determined him to
determine himself in that manner»11.
The right to liberty and obligation could no longer be united within
one and the same law as two ways of recognizing the power of self-
de- termination, since there could be no such power. The right and
obligation now fell apart for Hobbes as phenomena that were
simply opposed – law now being identified by Hobbes exclusively
with obligation, and the right to liberty surviving just as the space
left to us by obligation- imposing law:

“For though they that speak of this subject, use to confound Jus,
and Lex, Right and Law; yet they ought to be distinguished; because
RIGHT, consisteth in liberty to do, or to forbeare; Whereas LAW
determineth, and bindeth to one of them; so that Law, and Right,
differ as much, as Obligation and Liberty; which in one and the
same matter are inconsistent”12.

The function of law, for Hobbes, would now be just to limit liberty;
and liberty would come to no more than what is left open to us by
the obligations of the law. This generated a fundamental problem
within Hobbes’s theory of coercive authority and the State. What
was left to limit the attempts of an earthly sovereign to coerce us?
Certainly not any right to liberty on our part, based on our power
of self-determination or free will, that the State might be under an
obligation to respect; and this left Hobbes with a considerable
problem where the coercion of belief was concerned – a problem
to which we shall return.

3. Church and State

We have considered the general nature of law and coercive

authority. We must now turn to Suarez and Bellarmine’s view of
the various specific kinds of law and authority, and of the
distinction between two coercive authorities in particular – Church
and State.

State authority is regarded as that form of authority that is natural

to humanity. The authority of the State is based on natural law –
that form of law that applies to humans in general, just through
their human nature. And State authority serves those ends, natural
justice and natural happiness, that are proper to human nature, and
that are the concern of any human community.

But there is also a supernatural end available to us gratuitously

through Christ, and communicated to us by revelation rather than
natural reason. This involves the revealed law of the New Covenant
– a law that does not come with human nature, but is the special
product of divine legislation, communicated to us by Christ, and
which takes the form of a divine positive law. This revealed divine
law establishes an- other kind of authority, that of the Church,
which stands to the law of the New Covenant as State authority
stands to natural law. State authority is based on natural law; so
civil law, the positive law of the State, both enforces that natural
law and extends and specifies its application. Correspondingly,
therefore, since the Church’s right to legislate and punish rests on
the revealed law of the New Covenant, canon law, the positive
legislation of the Church, serves the same function in relation to
that revealed law. Canon law both enforces the law of the New
Covenant and extends and specifies its application. Though each
system of positive law serves different ends, each is a form of
humanly created law governing human communities that must
support and maintain them- selves through earthly or temporal
means. The tension in early modern Catholic theories of civil and
canon law is fundamentally between what Church and State have
in common – parallel structures of humanly legislated positive law
governing shared human populations – and what distinguishes
them: the different bases of each law, in a revealed law that is
divine and in a law that is rationally given and natural; and the
fundamentally different ends served by the two authorities,
spiritual in the Church’s case and temporal in the case of the State.

Nothing thus far would have been controversial for early mod- ern
Catholics. Few Catholics then denied, as Hobbes denied, that the
Church was indeed a coercive authority, with a general right to
legislate canonically and to enforce her laws with punishments.
Suarez and Bellarmine were both of course aware that there was a
very general question about how any form of human legal
direction, be it by Church or State, can play a role in taking us to a
supernatural end. How can hu- man legal direction and correction
play a role in salvation, when salvation is a gift of divine grace?
But there was a ready Catholic answer to this general question, and
one with which most of their co-religionists would have been
comfortable. The answer is that here as elsewhere in the economy
of salvation, grace itself uses human agency as its instrument,
especially through works of charity – in this case moving humans
to assist other humans by correcting them. As Suarez put it:

“It is replied that men cannot by their own power direct others to
the super- natural end, but they can do this with the assistance of
the Holy Spirit, from whom they obtain the authority; and although
the efficacy and the growth is always given by God, through his
grace, yet men too can plant and water and thus direct people
through laws toward the supernatural end; and by the same reason
they can through spiritual or other congruent penalties restrain
people from sins in relation to eternal salvation, which is prevented
by sin. And though human coercion cannot just by itself change the
internal will, where sin properly is to be found, nonetheless this
coercion is necessary; both be- cause discomfort (vexatio) tends to
produce understanding, and also because once the opportunity or
ease of performing the external action is removed, the will
abandons the internal affection much more easily; and finally
because external observance is necessary to the good of the
Church, and to avoiding scandals and dissensions and the like.
Therefore the shepherds of the Church use authority that is both
directive and coercive, and effect through their laws
established”13.

Later we shall see this same issue also being addressed by

Bellarmine, in very similar terms, with special regard to the
coercion of the act of faith.
There were however other questions about which there was no
consensus in early modern Catholicism. These concerned the
relations between Church and State and, in particular, their
respective coercive competences.

The first question concerned the very authority to coerce

religiously. Was the right and authority to direct religious belief
and practice exclusive to the Church? Was all legislation and
punishment in matters of religion based, at least ultimately, on the
authority of the Church, or did the State have a legislative authority
of its own in matters of religion too?

Then a second question had to do specifically with the temporal or

earthly sphere. The State clearly possesses authority in the
temporal sphere. States legislate regarding temporal or earthly
goods, and threaten forms of punishment that are temporal,
involving the punitive removal of earthly goods such as property,
liberty and even life. But does the Church also have a right to
legislate regarding temporal goods and to threaten temporal
punishments? And what, given the spiritual and heavenly nature of
her mission, might be the basis of this temporal authority, and what
is its relation to the temporal authority of the State?

These two questions address the relation in human law between the
spiritual and the temporal, but from opposite directions. The first
question is about whether religion can be the business of a coercive
authority, the State, whose concerns might immediately appear
earthly and temporal rather than heavenly or spiritual. Can the
earthly concern itself with heavenly ends? The second question is
about how far a primarily spiritual authority that serves spiritual
ends can use earthly means. How far can the heavenly make use of
the earthly?

There was no consensus in early modern Catholicism about the

these issues of Church and State, and Bellarmine’s and Suarez’s
writings were often composed in public controversy with other
Catholics, such as the Franco-Scottish Gallican William Barclay.
Suarez’s and Bellarmine’s views did have the backing of Paul V,
so that they came to provide the body of what, by the early
seventeenth century, amounted to, for the papacy, an official
theology of Church and State. But this theology was vigorously
opposed elsewhere in the Catholic world, and notably by the
Sorbonne and the Paris Parlement. And even in Rome the victory
of Jesuit political theology was recent. Bellarmine’s own defence
of the Church’s temporal authority as only indirect – as limited to
what was necessary for spiritual ends – had been insufficiently
extensive for a previous pope, Sixtus V. Following the hierocratic
tradition of Aegidius Romanus and Augustinus Triumphus, Sixtus
still believed that the Church had a direct temporal sovereignty
over the earth, and died in 1590 while planning to put Bellarmine’s
political theology on the Index14.
Beyond these matters of public controversy lay a more refined and
subtle question, also involving Church and State, which was a
particular interest for Suarez. This was a question about the kind of
direction given by humanly legislated positive law. Does canon
law, the positive law of the Church, direct action in a fundamentally
different way from civil law, the positive law of the State? In the
case of civil law, positive law seems to direct only action that is
forensically public and external. But how far is this really true; and
if true, is it a truth about the functioning of human positive law in
general, or simply about civil law? Does canon law, as the law of a
spiritual authority, differ from civil law in directing internal or
forensically private actions too? We shall see this question
becoming pressing in relation to the canon law on heresy – the
positive law of the Church that directs belief, which seems to be an
internal mental State.

Where the authority of the State was concerned, the Roman

theologians were united against the Gallicans on one important
point regarding religion. The Roman view insisted that the State
lacks any authority of its own to legislate for matters of revealed or
supernatural religion. This was because the authority of the State is
based on natural law, so that its jurisdiction extends only to the
good of a human community as governed by natural law – so as
involving goods natural to humanity, such as natural happiness and
natural justice. Revealed religion offers us a supernatural end that
goes beyond anything of which humans are naturally capable.
Though the State is under the same natural law obligation as
individuals to believe and publicly acknowledge any divine
revelation of that end if and when it is communicated, no such
revelation is itself part of natural law; and so no more than
individuals does the State have any authority of its own to legislate
for religion in supernatural form or to enforce that legislation by
threats of punishment:
“Punishment of crimes only belongs to civil magistrates in so far
as those crimes are contrary to political ends, public peace and
human justice; but coercion with respect to those deeds which are
opposed to religion and to the salvation of the soul, is essentially a
function of spiritual power [the power of the Church], so that the
authority to make use of temporal penalties for the purposes of such
correction must have been allotted in particular to this spiritual
power”15.

So for example the State had no authority of its own to prohibit or

restrict religions just because they were false, at least provided
those false religions were consistent with natural law – as
monotheisms such as Judaism and Islam both were:
“The reason is that these [non-Christian] rites are not intrinsically
bad in terms of natural law; so the temporal power of a ruler does
not extend in itself to forbidding them”16.

But natural law is not wholly neutral on the question of religion.

For human reasoning from created things allows us to come to
know of God’s existence as our creator, and to know that we bear
his image, and that we bear it through our possession of freedom
as a power and through our related capacity for reason. This means
that we are under a natural law obligation to practise at least natural
religion – a rational monotheism the function of which is not to
bring us to any supernatural end, but, besides honouring God
himself, to further the good both of individuals and also of the
human community. It is vital to the good of any human community,
and so too of the State, that God’s existence be recognized publicly,
and that he be loved and given due worship.
This would suggest that the State does have some authority of its
own in matters of religion: the State must at least have the right to
direct and enforce natural religion in the form of rational
monotheism. But even here matters were not clear-cut. On this
issue Suarez equivocated, between a static view, that still allows
the State this authority over natural religion at least, and a dynamic
view, that from the coming of Christ reserves all authority in
religion generally to the Church.
On the static view there is a constant and still valid division of
authority in religion, with supernatural religion being the exclusive
business of the Church, while natural religion remains a proper
object of State authority. Thus in his work on the supernatural
virtues, Suarez talked of all rulers, non-Christian rulers included,
retaining the right to prohibit irrational polytheism, as contrary to
natural law, and to enforce monotheism:
“The confirmation of our argument is that the purpose of [State]
power is to maintain the State in peace and justice, which cannot
be done unless the State is also induced to live virtuously; but men
cannot live according to moral and natural virtue, without true
religion and the worship of the one God; therefore, natural power
and the jurisdiction of a human State are extended to include this
purpose... even a pagan – that is, a non-Christian – king, if he has
a knowledge of the true God, may coerce his own subjects into
believing that truth (cogere subditos ad idem credendum), either by
their own reasoning if they are educated, or by putting human faith
in more learned men, if they are ignorant; and consequently, he
may compel those same subjects to cease from the worship of idols
and from similar superstitions contrary to natural reason. The proof
of this inference is that there resides in such a king all power which,
according to natural reason, is suitable for a human State”17.

However elsewhere, in his discussion of canon law in book four of

De Legibus, Suarez took the dynamic view. The State’s authority
under natural law did once extend to natural religion. But now the
coming of Christ has reoriented religion as such, at least within the
Christian world, to the supernatural. And this removes religion in
general from the competence of the State, and places it exclusively
under the authority of the Church:

“For the matter of civil law is more principally and mainly what
pertains to human justice: whereas the main concern of canon law
is what pertains to divine justice and religion, for almost everything
else is ordered to this, as evident from what we have said. As
regards this area, civil authority is more limited now within the
Church, than it was before the Christian religion; for once the care
of religion was oriented towards to the virtue and happiness of the
commonwealth, as we noted above from St Thomas; but now
religion itself, and spiritual salvation and spiritual happiness are the
priority, and the rest for their sake; and therefore once the care of
religion either belonged to the authority of the ruler, or was joined
with that authority in one and the same person, or was subordinated
to the authority of the ruler: now however the care of religion is
specially given to the shepherds of the Church”18.

We find this dynamic view later endorsed by Leo XIII in Immortale

Dei, where religion in general, just as concerned with divine
worship and the sacred, is placed within the jurisdiction of Church
rather than State:

“The Almighty, therefore, has given the charge of the human race
to two powers (potestates), the ecclesiastical and the civil, the one
being set over di- vine, the other over human, things [...] While one
of the two powers has for its immediate and chief object care of the
goods of this mortal life, the other provides for goods that are
heavenly and everlasting. Whatever, therefore, in things human is
in any way of a sacred character, whatever belongs either of its own
nature or by reason of the end to which it is referred, to the salvation
of souls or to the worship of God, is wholly subject to the power
and judgment of the Church” (id est omne in potestate arbitrioque
Ecclesiae)19.

What establishes that the Church exists as a coercive authority?

Obviously, it cannot be natural law. It must instead be revelation
that establishes the coercive nature of the Church – the same
revelation that communicates the New Covenant law that bases the
Church’s authority. So Suarez and Bellarmine rest their view of the
Church’s right to coerce on a series of arguments from revelation.
We find arguments from scripture and then from tradition,
including from specific conciliar and canonical decrees and
decisions. The emphasis lay not so much on the Church’s very
nature as a coercive authority, which was not really controversial
in the early modern Catholic world, but on something else that was
much more disputed – the Church’s possession of a jurisdiction that
though it served a supernatural end, could include the temporal
sphere, including temporal punishments, where necessary to
attaining that supernatural end.

The argument from scripture took a variety of forms. The principal

argument was from specific words of Christ understood as directly
establishing the coercive nature of the authority of St Peter and of
the later popes as his successors. The fundamental text, and one
that was seen as implying coercion directly, was St John’s gospel,
chapter 21, in which Christ commissions St Peter to be a shepherd,
with the faithful as his sheep – sheep who have gone or are liable
to go astray, and need to be rescued by the divine shepherd Christ
and his earthly vicars. Linked to that vision of a shepherd and his
flock is the fundamental unity of the flock – a unity that implies, in
religious matters, a subordination of a Christian State to the
Church.
In a still profoundly agricultural world early modern theologians
did not easily forget, as we now do forget, the intensely coercive
nature of the shepherd’s role. To protect and regulate their flock
shepherds do regularly apply or threaten highly temporal forms of
force. The coercive nature of shepherding is typified by the
shepherd’s staff or crook, which is written of as a disciplinary virga
or rod. The image in the catacombs of Christ the shepherd clasping
a wandering sheep about his shoulders portrays a sheep that has
been physically picked up and is being forcibly held. Baptized
wanderers are compelled by the shepherd to remain faithful to their
baptism – to their membership of the flock.
At the heart of the New Testament is a pastoral metaphor drawn
from non-rational nature, of the shepherd and the sheep, that
concerns our predicament as fallen rational beings. Since this
metaphor has coercive implications to which early modern
Catholicism was very sensitive, the idea of the shepherd was
readily interpreted as licensing the use by pope and bishops of
temporal force for spiritual ends. In the case of humans, the sheep
are actually rational, though waywardly so. So the force li- censed
is not brute, but involves law and legal coercion. The shepherd
must be able to direct the sheep by legislation – by the imposition
of legal obligation:
“and then [Christ] added [to St Peter]: Feed my sheep (John 21)
where by the word feed is meant the authority to govern and to
make laws”20.

Force therefore takes the form of threats of legal punishment – to

protect the sheep from predators from without, to maintain order
with- in, and to ensure that the flock is adequately maintained:

“When Peter was told «Feed my sheep» (John last chapter), he was
given every authority that is necessary for a shepherd to protect his
sheep. To the shepherd a threefold authority is necessary: one
concerns wolves, so that he may keep them away in any way he
can; the second concerns the rams, so that if they ever hit the flock
with their horns he may be able to confine them; the third concerns
the rest of the sheep, so that he may provide each one of them with
the proper forage. And therefore the Supreme Pontiff has this
threefold authority”21.

So coercion addresses us as rational and as bearing the image of

God – but as fallen too, so needing to be subjected to temporal
penal- ties, including corporeal ones, just as sheep are. The sheep
include the baptized temporal rulers of Christian states, who even
as rulers still count as no more than sheep within the community of
the Church, and so who are subject to the Church even in their role
as rulers and not just as private individuals. Baptism brings
obligations to the Church that are specifically political and not just
private:

“In fact, since kings through baptism have subjected themselves to

the spiritual authority of the Pontiff, they are considered to have
subjected also their kingdoms and their political authority to the
same spiritual authority; that is, they wanted to be directed and
corrected by the Pontiff if they have strayed in any way from the
path to salvation in temporal matters”22.

Why does the status of being a sheep involve the political as well
as the private person of the ruler? The fundamental argument is
from the unity of the flock, and so of the Christian community as a
whole. This unity means that in matters of religion, while it is true
that people retain their temporal rights, no part of that community’s
temporal or earthly nature is exempt from ecclesial direction for
spiritual ends. So, for example, individual Christians continue to
have a right to private property; but they can nevertheless be
obligated by their baptism to make a portion of their goods
available at the Church’s direction when needed for the Church’s
mission:

“I reply that private men who are admitted into the Church do not
forfeit their goods and other temporal rights, and yet they can be
obliged by the Church to support their parish priests and, as the
Apostle says, let those who sow spiritual things reap carnal things
(1 Corinthians 9:11), and they were hardly bound to do these things
before accepting the faith”23.

Similarly, therefore, baptized rulers of Christian states retain their

political authority and sovereignty in temporal matters – but can
like- wise be obliged through baptism to lend their temporal power
to sup- port the authority and mission of the Church:

“By the same token, temporal princes who join Christ’s household
lose neither their power nor their jurisdiction but subject
themselves to him whom Christ has put in charge of his household,
to be ruled and led by him in the path that leads to life”24.
Suarez emphasizes that this subjection has to be political because
the flock of the baptised must be one:

“The principle foundation of this truth is declared both through

reason and testimony: for it is taken from the unity of the Church
of Christ sufficiently communicated through the Gospel, and
declared by Paul, 1 Corinthians, 12, saying: We are all baptized
into the one body... therefore Christ the Lord founded the Church
as one spiritual kingdom, in which there would be one king, and
one spiritual ruler; therefore it is necessary that the temporal power
be subject to the spiritual, as the body is to the soul”25.

To communicate the unity of the Christian community we find

Suarez using in this passage a further and venerable image, in this
case relating Church and State – the image of soul-body union.

The Christian Church, understood in the widest sense as the

community of the faithful, unites the two forms of authority, the
spiritual authority of the Church with the temporal authority of the
State, as the soul is united with the body to form a single human
person. And in spiritual matters that are higher, the community as
a whole must be directed by the higher, spiritual authority – just as
in the higher matters that concern the soul the body must act at the
direction of the soul.26 So all Christians with whatever temporal
belongs to them, including their political com- munities, must be
subordinate to the shepherds in spiritual matters, and give their
shepherds temporal support where this is required to serve the
supernatural end. The pastoral and soul-body union models come
together in the following passage of Bellarmine:

“And spiritual and temporal authority do not converge in the

Church as two commonwealths converge in a federation, but as the
spirit and the flesh con- verge in one man, as Gregory of Nazianzen
taught clearly in his oration Ad populum timore perculsum. And it
is certain that the spirit must rule over the flesh, not the other way
around, and in the Church of Christ Pontiffs and kings are not like
the chief rams in the sheepfold but rather like the shepherds and the
sheep, and whether the shepherds should rule over the sheep or the
sheep over the shepherds is not something that can be called into
doubt27.

So the State can be involved in religious coercion – not under its

own authority but as a community of the baptized ruled by the
baptized. Baptized rulers can, by virtue of their baptism, be called
upon in the exercise of their political office to act as the Church’s
agents in enforcing her authority, just as the body can be directed
by the soul to act on the soul’s authority. The State becomes in
spiritual matters the Church’s secular arm.

These two pictures, of the bishop as shepherd and State rulers as

sheep, and of the State as united with the Church in a soul-body
union to act as the Church’s agent in spiritual matters, are
frequently asserted together. And each picture is seen as implying
the same conclusion: that the Church must have the right and
authority to apply, if necessary with State assistance, coercion in
temporal form, for spiritual ends.

Scripture was used to establish not only that coercive authority ex-
tending to the use of temporal means had been given to the
Apostles, but that this authority to coerce had actually been
exercised by them. One important passage appealed to in this
connexion is from Acts, where, appealing to the authority of
Augustine28, Ambrose and Gregory the Great, Suarez interprets
the deaths of Ananias and Saphira as a punishment inflicted on
them by St Peter – a just penalty imposed by the apostolic possessor
of a coercive jurisdiction over the baptized:

“And finally, lest this power [to use temporal means of coercion]
be completely hidden at the beginning of the Church, since the
Apostles could not then exercise it in the ordinary way because of
the numbers and strength of the unbelievers, some miraculous signs
were given of this power: such a sign was made through Peter in
Acts 5, when at his command Ananias and Saphira died, about
which Ambrose says (sermon 19), «While he punishes one, he
corrects others, for he wanted punishment to touch one and fear to
touch the others»29.
Other passages are cited by Suarez to establish the apostolic
punitive authority not only of St Peter but also of St Paul, as in 1
Corinthians 5 where St Paul decrees that for the good of his
salvation a member of the Church at Corinth guilty of incest be
«handed over to Satan for the destruction of the flesh» (that is, as
Suarez understands St Paul’s decree, subjected to a temporal
punishment).

Because the issue was a matter of revelation, concerning the law of

the New Covenant, appeal was made not only to scripture but to
past conciliar and canonical authority. The disciplinary decrees of
Trent were of great importance, in that these openly called for
temporal punishments to enforce canonical regulation, requiring
where necessary the assistance of the State in their imposition. As
Bellarmine noted:

“Also, they [Christians] can, as a punishment for different sins, not

only be obliged by their confessors in the internal forum to atone
for their sins by giving alms, but also be fined by the bishops in the
external forum with pecuniary sanctions and also be put in prison,
as is clear from the Council of Trent, session 25, chapter 3”30.

Trent clearly supported not only the Church’s right to impose

temporal penalties, but also an obligation on the Christian State to
enforce the Church’s authority. The Council of Trent’s canons on
the reform of marriage called on ecclesiastical judges to request the
assistance of the State in the enforcement of penalties for adultery
and concubinage, penalties that extended if necessary to expulsion
from the place of residence31. Trent also called in the help of the
secular arm to enforce Church law on monastic enclosure,
declaring the excommunication of any secular magistrates
unwilling to assist32. And the Council solemnly admonished rulers
in their capacity as baptized Catholics to enforce Church
authority33.

4. The coercion of belief: the Council of Trent

Trent was involved, not only in asserting the Church’s general right
to use temporal means of coercion, and to call on the State to assist
her, but in a dogmatic affirmation of the right to coerce, in
particular, the act of faith in the baptized. The obligation to faith
was a central baptismal obligation, without which the Christian life
was clearly impossible; and this obligation in particular could be
enforced.

The trigger for Trent’s definition was provided by Erasmus. In the

preface to his Paraphrases on Matthew34, Erasmus had proposed
that those baptized as children be asked on growing up publicly to
reaffirm their baptismal promises; and that they not be subjected to
any punitive coercion back into fidelity save exclusion from the
sacraments if they were unwilling to provide the reaffirmation.
This Erasmian challenge to the use of temporal penalties to coerce
the baptized into fidelity had already been criticized well before
Trent by Spanish theologians meeting at Valladolid in 1527 to
review Erasmus’s works, and had been condemned thereafter by
the University of Paris. At Valladolid, whatever else the individual
theologians varyingly thought about the public reaffirmation of
baptismal promises, all were hostile to Erasmus’s proposed
rejection of any coercive enforcement of fidelity on the unwilling
– one theologian expressing the view that a threat of death for the
unwilling would be a suitable sanction35.
At Trent in January 1547 Erasmus’s proposal was included in a
series of condemnable propositions regarding baptism – the errores
haereticorum circa sacramentum baptismi. There was no
dissension regarding the erroneous nature of Erasmus’s view. The
discussions made reference both to the custom of the Church,
which was to impose the faith on the baptized, and to Toledo IV36.
In March in its decree on baptism Trent then cited Erasmus’s
proposal in canon 14, and imposed an anathema upon it. And as at
Valladolid, the condemnation was not of the simple proposal that
people be asked to reaffirm their baptismal commitment; but of
Erasmus’s linkage of this proposal to a disavowal of any real
coercion of the baptized – his suggestion that those unwilling to
make the requested affirmation should be left uncoerced to their
own decision:

‘If anyone says that when they grow up [cum adoleverint], those
baptized as little children should be asked whether they wish to
affirm what their godpa- rents promised in their name when they
were baptized; and that, when they reply that they have no such
wish, they should be left to their own decision and not, in the
meantime, be coerced by any penalty into the Christian life [suo
esse arbitrio relinquendos nec alia interim poena ad christianam
vitam cogendos], except that they be barred from the reception of
the eucharist and the other sacraments, until they have a change of
heart: let him be anathema’37.

This decree was clearly understood at the time as a de fide

endorsement of coercion of the act of faith in the baptized – as we
see from Francisco de Toledo, the first Jesuit to be made a Cardinal,
and prefect of studies at the new Roman College:

“Fifth conclusion. Those baptized as infants before the use of

reason are certainly to be compelled when they reach the age of
reason to retain the faith, even on penalty of death. This is against
Erasmus, who in a certain preface to a version of the New
Testament says it would be more advisable if these infants once
they reached the age of reason were questioned about the faith; and
if they did not wish to remain in it, were left free, being deprived
only of participation in the sacraments. But this view is heresy, and
the conclusion is Catholic. First, this heresy is condemned in the
Council of Trent session VII, canon 14. And furthermore because
just as by divine law baptism can be conferred on infants, so
obligations can be imposed on them by the same God, even before
the age of reason; for God can demand of humans whatever is
pleasing to him”38.

Theologians thereafter consistently viewed this decree as defining

the legitimacy of the use of coercion to enforce baptismal
obligations, including the central baptismal obligation to faith.
Thus in the eighteenth century Billuart asserted it to be clear
Church teaching that the faith of heretics and apostates, but not of
the unbaptized, may rightly be coerced39. His approach was
entirely conventional. Besides Aquinas’s well-known and
frequently cited teaching to that effect in the Summa Theologiae
2a2ae question 10, article 8, Billuart cited the canon law on heresy,
specifically including Toledo IV on the coercive retention in the
faith of the baptized. Then for dogmatic teaching by a general
council, Billuart appealed to canon 14 of Trent’s decree on
baptism. We find prominent and officially approved manualists
taking the same line until the Second World War. Thus Perrone in
1845, Hurter in 1908, Ottaviani in 1935, and Merkelbach in 1938
all agree that Trent defines the legitimacy of the coercive
enforcement of baptismal obligations, including the central
obligation to faith40. As Merkelbach observes:

“Baptized infidels can be compelled by spiritual and temporal

penalties to return to the faith and to the Church, since by baptism
they were made subject to the Church” (Council of Trent, session
7, canon 14)41.

The coercion of the act of faith has often been seen as raising
special problems. But the perceived nature of these problems has
taken very different forms.

Within the Catholic tradition, the issue was not traditionally the
very possibility or legitimacy of coercing belief – that possibility
and legitimacy was taken as evident in the early modern period.
The problem within the Catholic tradition had more to do with the
implications of the canonical regulation of belief for the theory of
human positive law. Some canonists saw the coercion of belief as
helping to establish that though just as much a form of humanly
legislated positive law as the civil law of the State, canon law
operated in a fundamentally different way from civil law,
addressing internal acts in a way that civil law did not.

But outside the Catholic Church the issue did indeed involve, from
the early modern period on, the legitimacy and even the very
possibility of coercing belief. And one thinker greatly responsible
for this radical reframing of the issue was Thomas Hobbes.

5. The coercion of belief: the Catholic problem

We shall first address the Catholic problem – the problem to do

with the nature of humanly legislated positive law. Such law is the
law of a human community, and so a form of law that deals with
what is forensically public or external. This link between positive
law and the external arises in two ways. First the law attends to the
good of a community, not of an individual person – and so is
concerned with what is external and public to the whole
community, and not what might be private to specific individuals.
But secondly the law has to be enforced by the community or its
officials. So the actions that law governs must be forensically
public. Human courts and their officials must be able to tell
whether the law has been broken or obeyed. So it is natural to think
that human positive law addresses external actions such as theft or
murder, or clear attempts at such, but not, at least directly, private
and internal mental acts of merely deciding to steal or murder. Such
a view of positive law seems plausible for ordinary forms of civil
law – the laws imposed by states under their own authority. But
what of canon law – the positive law imposed and enforced under
the authority of the Church?

Some thought that the positive law of the Church had to work
differently, just because it did govern mental states such as belief.
Suarez cites the view, of Pighius and others, that because of the
spiritual nature of the Church, canon law, though a form of positive
humanly legislated law, is fundamentally unlike civil law in that
canon law does directly address internal acts, such as belief
considered as a purely internal mental State:
For granted that we defined above concerning human law in
general that it cannot address internal acts, there is a special
difficulty for that view in the case of canon law, which we have left
for this place. For there is a general reason for doubting the view,
in that ecclesial authority is spiritual, and is principally directed at
the internal good of souls, and has a more elevated principle,
namely God himself supernaturally conferring that authority, and
therefore on either account this authority appears immediately
concerned with internal acts42.

But Suarez did not accept that civil and canon law worked in
different ways. Suarez admitted that canon law might indeed have
addressed internal acts directly, had Christ given the Church the
required authority – which, Suarez conceded, Christ certainly had
had the power to do. But there was, in Suarez’s view, no evidence
that Christ had actually granted the Church such an authority; in
particular, the practice and legal tradition of the Church gave no
support to Pighius’s hypothesis that Christ had done so43.
In Suarez’s view, canon law actually worked exactly as did civil
law. Just like civil law, canon law and its enforcement was directly
concerned with the external good of a human community, and so
addressed external acts. But just as civil law did too, canon law
addressed the character of those external acts as they affected the
community’s good. And external acts could affect the good of a
community through being expressive of internal acts – internal acts
that then formed the public moral character of the external acts that
expressed them, so that positive law could address those internal
acts as well. In such cases, when so constitutive of the moral
character of the external acts, internal acts too could be subject to
the direction of human positive law.

The only difference between the communities of Church and State

lay not in the modus operandi of positive law, but in the fact that
the spiritual nature of the Church made the relation of external to
internal acts more crucial to the good of the ecclesial community.
In performing a public sacramental act, what a priest intended
might be crucial to the character of that act within the life of the
ecclesial community, for example; which is why canon law might
make very specific reference to what the priest did or did not intend
in its classification and regulation of sacramental acts44.
Suarez insisted that belief was not a concern of any human positive
law, canonical or civil, considered just as an internal mental
State.45 But belief was not a purely internal State. For beliefs were
apt to be asserted. And when asserted, their assertion could matter
to the good of a community, not just as an act of speech, but as the
expression of what was clearly the assertor’s genuine belief. Doubt
or disbelief in fundamental religious or ethical truths could, when
expressed, deeply harm a community. For this reason, such doubt
or disbelief could, when expressed, be of concern to the public
authority governing community, and be subject to criminal
penalties.

Laws directive of belief were not peculiar to canon law. They could
be part of civil law too, and in Suarez’s view when serving to apply
the natural law could be based on purely political authority. We
have already seen one central case. Natural law-based State
authority might not be competent to direct or enforce any particular
supernatural belief. But it could, at least in principle, enforce
natural religion – belief in rational monotheism:

“Even a pagan – that is, a non-Christian – king, if he has a

knowledge of the true God, may coerce his own subjects into
believing that truth [...] The proof of this inference is that there
resides in such a king all power which, according to natural reason,
is suitable for a human State”46. .

Of course the general issue of the appropriateness of coercing acts

that are the gift of grace arose for the act of faith in particular. How
could faith, which was a gift of God, be produced by legal
coercion? But the case of faith introduced no new or peculiar
difficulty. The same general solution was applied: divine grace
uses human action as its instrument. Just as grace can use human
preaching to communicate the faith in the first place, so too grace
can use human correction to enforce the obligation to faith in the
baptized:
“The twelfth argument. Faith is a gift of God, and so no one can be
compel- led to faith. I reply, just as faith is a gift of God, so too it
is an act of free will, and moreover so too chastity and the other
virtues are gifts of God, and yet adulterers, murderers and thieves
are punished and compelled to live chastely and justly. Wisdom too
is a gift of God, and yet it is written in Proverbs 29 that the rod and
reproof bring wisdom. Finally faith is a gift of God, but God
bestows this gift by various means, one of which is reproof”47.

Moreover this use of coercion no more destroyed free will in the

case of faith than it destroyed it in the acts of other virtues.
Compulsion – by which was meant the threat of punishment – did
not remove human free will in relation to the act of faith, any more
than did criminal penalties generally. Threatening people with
punishment left them still with the option to risk the penalties and
to disbelieve, as penalties on theft leave burglars still strictly free
to risk the penalties and embark on theft. The threat of punishment
served simply to encourage free will’s right use:

“And further we say free is to be understood in two ways, meaning

either free from the natural necessity (necessitate naturali) which
is to be found in a naturally acting cause, or free from moral
necessity (necessitate morali), that is from some obligation to act.
The first kind of necessity is inconsistent with the act of faith...but
in truth penal coercion [the threat of punishment] does not impose
this kind of necessity, as is self-evident, and so is not inconsistent
with the freedom required by faith; on the contrary, it aids that act,
by leading the person to believe freely; and though at the beginning
such coercion may appear in some way to diminish the indifference
involved in freedom, nonetheless it leaves the act still strictly free,
and it is less bad to believe through such coercion than not to
believe at all”48.

6. The coercion of belief: Thomas Hobbes

In the early seventeenth century the advocates of the legal coercion
of belief were also principal defenders of the individual right to
liberty. As we have seen, from the fourth council of Toledo the
canonical tradition, further developed by Suarez’s time to
incorporate a theory of individual rights, did not only teach that
State and Church alike had the authority to coercively direct belief.
It also taught strict limits to that authority – limits placed by the
human right to liberty together with there- stricted nature of the
relevant political and ecclesial jurisdictions. Thus the State
altogether lacked the authority coercively to impose revealed truth;
while the Church did possess that authority, but only in relation to
the baptized. And fundamental to the right to liberty was free will.

Thomas Hobbes, by contrast, denied free will. He denied the very

existence of a power of self-determination, or of a right to liberty
under- stood as the right to exercise that power. Indeed Hobbes had
no theory of individual rights that could limit the authority of a
State and obligate the State to respect them. The right of a subject
to liberty extended only so far as the law of the State permitted.
The possible implications of this were obvious and troubling. What
if a State ruler were to decree that all his subjects were to adopt
some dubious form of religion? What could block his Christian
subjects from being bound – legally obligated – by such a decree?
In the minds of Hobbes’s immediate readership of Protestant
Christians the entire credibility of his political theory was put in
doubt. The unlimited authority of the Hobbesean State appeared
now to threaten the very salvation of the Christian believer.

Hobbes accordingly redefined what salvation required, and in a

way neatly designed to remove potential conflict between the
requirements of Christianity and the authority of the Hobbesean
State. Salvation, in Hobbes’s view, required only inner belief that
Jesus is the Christ, combined with conformity to the laws of nature
and to whatever legal obligations were imposed by earthly
sovereigns.49 But what if the sovereign commanded that we not
believe that Jesus is the Christ? No such command, Hobbes replied,
could impose a legal obligation – but not because it violated a right
to liberty.

Hobbes was not willing to entertain limitations on political

authority based on obligations to respect the liberty of subjects and
on related restrictions in the State’s competence. No area of human
life, including religion, would be exempt from State authority, at
least regarding external action. Nor was Hobbes willing to make an
issue of what forms of religion were actually true. Instead Hobbes
introduced a new form of argument: that because the coercion of
belief was somehow practically impossible, no directive on belief
could ever impose an obligation.

Law could not impose obligations on belief, in Hobbes’s view, be-

cause belief could not be produced through legal direction and
coercion; and legal obligations presupposed some possibility, at
least in principle, of their producing conformity. We have a
repeated appeal by Hobbes to two features of belief that supposedly
make belief impossible legally to coerce. First Hobbes appeals to
the supposed privacy of belief. The thought is simple. When faced
by the sovereign and his inquisitors, we can always conceal what
we truly believe, so that any law on belief is unenforceable on that
account. Then, secondly, belief is non-voluntary: what we believe
is not subject to our decision or will. Beliefs cannot be adopted or
abandoned at will, just in order to comply with the law and avoid
sanctions imposed on illegal belief. But that is the only way
coercive law can work – as something that we can respond to
voluntarily, on the basis of a decision to do so, just as a means to
conforming to the law.

“As for the inward thought, and beleef of men, which humane
Governours can take no notice of, (for God onely knoweth the
heart) they are not voluntary, nor the effect of the laws, but of the
unrevealed will, and of the power of God; and consequently fall
not under obligation”50.

Legal coercion is only of those actions that can be performed or

avoided simply as a means of fulfilling commands and of avoiding
sanctions threatened for breach of commands.

But the Hobbesean view, with its emphasis on the issue of

voluntariness, does not fairly address the theory of the legal
regulation of belief we find in Suarez. For Suarez religious and
ethical belief generally is not completely private. Such belief is to
a significant degree a public phenomenon; it is of great significance
in our social relations, and is very liable sooner or later to be
expressed. That is one reason why what people believe can be of
concern to a wider community.

But more crucially, the non-voluntariness of belief is just not to

the point. For where belief is concerned, the function of sanction-
backed legal coercion is not to motivate people to form or hold
beliefs voluntarily, simply on the basis of a will or motivation to
avoid sanctions. Rather the function of the legal direction and the
threatened sanctions that come with it is to direct the believer’s
attention to a (supposedly) sound epistemic case, based on
evidence or else on authoritative testimony, for the obligatory
opinion – a case that the believer had hitherto been culpably
ignoring – so that the required belief is then formed in response to
that epistemic case. Consider again Suarez’s model of the use of
State law to enforce natural religion, or belief in monotheism:
“Even a pagan – that is, a non-Christian – king, if he has a
knowledge of the true God, may coerce his own subjects into
believing that truth, either by their own reasoning if they are
educated, or by putting human faith in more learned men, if they
are ignorant; and consequently, he may compel those same
subjects to cease from the worship of idols and from similar
superstitions contrary to natural reason”51.

It is clear from this passage that Suarez is not presuming that belief
can be formed just at will, irrespective of testimony or evidence.
Belief is importantly non-voluntary because it is directed at its
object as true, and so is dependent on truth-related testimony or
evidence. State coercion serves simply to direct attention to that
testimony or evidence: in the case of belief in God, to rational
proofs of God’s existence, or to the witness of experts to the
existence and soundness of such proofs.

Behind this conception of State or positive law was a view of the

educative function of law that was very old. We find it, for
example, in book 10 of Aristotle’s Nicomachean Ethics. The
State’s legislation, including its imposition of punitively enforced
legal obligations, is certainly concerned with something that looms
large in modern legal theory – mutually advantageous coordination
at the point of the voluntary. But State legislation is also concerned
with education – with inducing change in the direction of ethically
important truth at the level of citizens’ belief. The State is a
coercive teacher. Sanction-backed le- gal obligations may serve to
direct attention to justifications for belief – justifications for the
truth of a socially and morally important claim, about God or about
the nature and status of other humans; and in a case where these
justifications, though dependent on truth, as relating to that truth
also involve some good that binds us with the force of moral
obligation, such as that we all believe this important truth on this
ethically vital matter.

Hobbes was very influential in establishing as a cliché of English

language political theory that belief cannot be successfully
coerced. From Hobbes through Locke and down to our day, it has
been endlessly repeated that the attempted coercion of belief is
objectionable because it involves an oppressive use of the law that,
though it may silence external speech, is bound to be ineffective as
regards inner conviction. Thus Bernard Williams notes a «very
important argument in favour of religious toleration» – namely that
attempting to coerce belief is «essentially fruitless, because the
forces of the State cannot reach a per- son’s centre of
conviction»52.

But despite all these modern protests that the project of coercing
belief is “essentially fruitless”, the coercive structures of early
modern states could be very effective at changing what large
numbers of people believed. Indeed, modern states do still appear
to go to some length to influence belief, not just by various forms
of positive recognition and endorsement, but also by the threat and
application of sanctions. The function of penal coercion in the
criminal law is often to use the threat of a penalty to engage
attention and help communicate a message that there are anyway
prior grounds to believe – that the action threatened by punishment
really would be seriously wrong.53 The punishment of crime is
accompanied, in particular, by public witness given by judges and
other representatives of the State for the prior and genuine wrong-
ness of what is being punished – and it is this witness, and not an
arbitrary command, that the punishment is designed to ram home.
Sentencing is characteristically accompanied by moral criticism of
the criminal – criticism that is revealed as seriously meant by the
gravity of the punishment. Hence the failure to punish a crime with
a penalty of any seriousness can convey the opposite message:
namely that what was done was not, after all, so seriously wrong.
Which is why in such cases of leniency the outrage of the victim
and their friends may not betoken a desire for vengeance, but rather
resentment at what they take to be a literal understatement of their
rights. The function of sanction-backed criminal law is in part to
drive home an argument and change what people actually believe.
No matter how terrible and unwarranted the means adopted by the
sixteenth century Church’s agents, their conception of the use of
law to coerce the baptized into meeting their obligations was not
so very different. The canonical punishments for heresy and the
like threatened by the counter-reformation Church were no
different in general function from the criminal punishments
threatened by today’s liberal State: to communicate testimony or
witness to the truth given by representatives of the coercing
authority – witness or testimony that should anyway be enough to
support and warrant assent; and by impelling attention to the
message and its grounds, to pressure those subject to the authority
into believing it.

Whatever our final view of the morality of the coercion of belief,

it is plain that Suarez and Bellarmine were at least right about what
states and other coercive authorities actually do. For good or ill, the
State is indeed and inevitably a coercive teacher. Hobbes’s
argument to the contrary depended on a model of belief and what
its legal coercion would involve that was crude and naïve. But
Hobbes lacked a convincing theory of the right to liberty; and so
he simply could not afford to be more sophisticated. But we should
not so easily deceive ourselves about how legal authorities,
including the modern liberal State, actually work – well understood
as this once was within the Catholic tradition.