Religious Liberty and the Hermeneutic of Continuity

R. Michael Dunnigan (JD, Georgetown University; JCD, Pontifical University of the Holy Cross) is associate professor of canon law at Saint Meinrad Seminary, having previously practiced both civil and canon law. His research interests include the rights of the faithful, comparative law, and doctrinal development.

How did the human right to religious liberty become an essential piece of modern Catholic teaching? R. Michael Dunnigan's contribution to the literature on Vatican II's Dignitatis Humanae brings to bear his keen theological and legal acumen not only to defend its compatibility with prior periods of Catholic teaching, but also to show its positive contribution in promoting human integrity in the modern world. Dunnigan explains how Dignitatis Humanae develops Church teaching on human dignity and the roles of civil authority and of law in both fostering and limiting the exercise of religion, and he lends his voice to recent arguments that regard the law of nations and the condition of reciprocity as grounding a development in justice that requires religious liberty among and within societies. Dunnigan's grasp of magisterial teaching, secular and ecclesiastical jurisprudence, and the post-conciliar literature is most impressive." - Barrett Turner Mount St. Mary's University"This is an extraordinarily competent and lucid investigation of the right to religious liberty promulgated by the Second Vatican Council. There might indeed be stronger rights or lesser rights to religious liberty, and perhaps different reasons for each, but Professor Dunnigan insists on getting to the precise right adopted by the Council. This is not easy work. He sifts through both the history of the conciliar debates and the plethora of post-conciliar opinions. I deem it fair not only to the Council but, perhaps just as importantly, to the scholarly debates thereafter." - Russell Hittinger Catholic University of America"One problem with Dignitatis Humanae is not what it said but what it didn't say. There was so much left to the imagination and future theological reflection. With this volume Dunnigan presents the principles of Dignitatis Humanae in the context of the broader theological tradition rather than leaving people to believe that the declaration was an endorsement of philosophies undergirding the French and/or American Revolutions. The work is essential reading for anyone interested in Catholic jurisprudence and political theory." - Tracey Rowland University of Notre Dame (Australia)"Dr. Michael Dunnigan has written a thorough and masterful study of Dignitatis Humanae that shows both its doctrinal continuity with previous Church teachings and its prophetic significance on the prudential plane. While refusing to shy away from the difficulties the text poses for interpreters concerned to reconcile the document with the teachings of nineteenth-century popes, Dunnigan convincingly demonstrates that Dignitatis Humanae roots religious liberty in the human desire to seek truth without coercion. He thus provides a subtle corrective to John Courtney Murray's highly influential view, according to which the text is founded on an acknowledgement on the part of the Church of the powerlessness of the state in the religious sphere. Dunnigan's book will be a standard reference in the field. Highly recommended." - Keith Lemna Saint Meinrad Seminary

• Acknowledgements xvNotes and Abbreviations xviiPart 1—Introduction to the DebateChapter 1—An Impossible Reconciliation? 1Chapter 2—The Stakes of the Debate over Religious Liberty 92.1. Archbishop Lefebvre and the Declaration on Religious Liberty 102.2. Father Charles Curran and the Teaching of Moral Theology 212.3. Curran and Lefebvre 312.4. Religious Liberty and the Church’s Witness to Justice 312.5. The Church’s Diplomatic Activity and Her Relationship to Modernity 33Chapter 3—Development, Method, and the Issues 353.1. Development in Doctrine versus Corruption in Doctrine 353.2. The Method and the Issues 47Part 2—Church and StateChapter 4—The Proper Relationship between Church and State 614.1. Separation of Church and State 634.2. The Need for Humility in Interpreting Dignitatis Humanae 654.3. Gelasian Dualism 704.4. The Drafting of Dignitatis Humanae 814.5. Special Civil Recognition 864.6. The Last-Minute Change to Dignitatis Humanae 924.7. Does the Declaration Foreclose the Re-emergence of the Confessional State? 954.8. Murray’s Disappointment and Davies’s Acknowledgement 994.9. Murray, Paul VI, and the “Nothing but Freedom” Argument 1014.10. Further Significance 113Chapter 5—The Appeal to “Changed Circumstances,”Part 1: The Near-Disappearance of the Catholic State 1155.1. The Historical Inquiry 1165.2. Limitations of the Historical Inquiry 1195.3. Christopher Wolfe 1215.4. A Word on the Islamic World 123Part 3A—Analysis of the Right to Religious Liberty: The Scope and Object of the RightChapter 6—The Nineteenth-Century Magisterium 1276.1. Gregory XVI, Mirari Vos (1832) 1286.2. Bl. Pius IX, Quanta Cura (1864) 1346.3. Bl. Pius IX, The Syllabus of Errors (1864) 1376.4. Leo XIII, Immortale Dei (1885) and Libertas (1888) 143Chapter 7—The Scope of the Right to Religious Liberty 1477.1. Some Preliminary Notes on Conscience 1507.2. The Nineteenth-Century Union of the Moral and Juridical Realms 1557.3. Consequences of the Blurring of the Moral and Juridical Realms 1587.4. The Vatican II Distinction between the Moral and Juridical Realms 1747.5. An Extension of the Nineteenth-Century Teaching 1787.6. The Relevance of the Scope of the Right to the Larger Question 186Chapter 8—The Object of the Right to Religious Liberty 1898.1. The Central Dispute 1908.2. Positive Rights and Negative Rights 1968.3. The Right as Ius Exigendi 1978.4. The Davies Objection 1988.5. Related Observations 2028.6. Two Facets of Liberty 205Part 3B—Analysis of the Right to Religious Liberty: The Crucial Question of the Foundation of the RightChapter 9—The Search for the Proper Foundation 2099.1. Allusions to the Right to Religious Liberty 2109.2. Early Attempts to Make Conscience the Foundation of the Right 2119.3. The “Juridical” Argument for the Incompetence of the State 2169.4. The Council’s Choice of Human Dignity as the Foundation 2299.5. The Remarkable Resiliency of the Incompetence Argument 2359.6. Murray’s “Sufficiency” Argument 253Chapter 10—The Dog That Didn’t Bark 26110.1. Some Qualifications 26210.2 A Note on the “Juridical Approach” and the “Incompetence Argument” 26510.3. The Practical Problems with the “Incompetence Argument” 27810.4. Doctrinal Difficulties 31110.5. A Response to the Question: “Might It Have Been Otherwise?” 336Chapter 11—Starting with the Person, Not the State 33911.1. The Ontological Argument 33911.2. The Social Argument (Part 1) 34111.3. The Social Argument (Part 2: An Excursus on Thomas Pink) 34211.4. The Argument about “Avoiding the Political” 35711.5. Human Integrity 358Part 4—Limitations on the Right to Religious LibertyChapter 12—The Challenge of Quanta Cura 36912.1. The Need for Limitations on Religious Practice 36912.2. Quanta Cura (1864) 37112.3. A Matter of Translation 37912.4. A Limitless Freedom? 38112.5. The Public Order and the Common Good 38712.6. Contemporary Applications 392Chapter 13—Public Law and Policy 39513.1. Teaching and Policy 39613.2. The Vatican II Change in Policy or Public Law 39813.3. Analysis of Harrison’s Public Law Argument 40113.4. Papal Administrative Practice 40613.5. Doctrine and Policy 408Chapter 14—The Burning of Heretics 40914.1. Leo X’s Bull against Luther 41014.2. The Drafting of Exsurge Domine 414Chapter 15—The Appeal to “Changed Circumstances,”Part 2: Social Harm, Both Real and Perceived 41715.1. Noonan and O’Neil 41815.2. St. Augustine 42215.3. St. Thomas Aquinas 42915.4. Coercion of the Baptized 43515.5. Insights and Limitations of the O’Neil Approach 440ConclusionChapter 16—The Appeal to “Changed Circumstances,”Part 3: The Delay in Recognizing the Right to Religious Liberty 44516.1. Murray after the Council 44516.2. An Assumption 44716.3. Kasper’s Contribution 44816.4. The Final Piece 45216.5. Conclusion 453Bibliography 455Index 479 xv