The Pope and the Liberal State

It is not hard to understand why when Centesimus Annus was issued in 1991, its economic teachings almost immediately received the most attention. For with respect both to substance and emphasis, Centesimus does represent a considerable development in papal social thought on economic matters.

In Rerum Novarum (1891), Leo XIII defended what he called the “stable and perpetual,” “inviolable,” and “sacred” right to private property (RN #6, 15, 46). Yet he was less interested in understanding the phenomenon of economic freedom on its own terms than he was in asserting moral and juridical principles necessary for answering the twin evils of unrestricted laissez-faire and state socialism. Pope John Paul II, however, evinces a more direct interest in the entrepreneurial spirit and in the moral value of “the modern business economy” (CA #32).

Moreover, John Paul II’s stiff criticism of centralized command economies and his admonitions about the dangers of the welfare state have important implications for how papal social teaching must now be brought to bear upon economic policies in Eastern Europe, the Third World, and even in the developed nations where these issues are debated by prelates and the laity.

Though this revision in the papal approach to economic issues is undeniably important, nevertheless it is the Pope’s view of the political statę that represents the more important evolution in papal teaching since Rerum Novarum. Centesimus, indeed, is the first papal encyclical that treats the modern state as what recent history has taught us to recognize it to be: namely, a potentially dangerous concentration of coercive power requiring the most exacting juridical and structural limitations. Simply put, the political state depicted in Centesimus Annus is no longer the classical or medieval civitas assumed by John Paul II’s predecessors.

The encyclicals of the Leonine papacy, for example, typically treated the state as a kind of prodigal child of Christendom that needs to be summoned once again by the Holy See to its proper responsibilities, albeit in the face of certain modern crises. But the state visualized by Pope Leo is still the premodern state, pictured as an organic communitas perfecta—in Leo’s words, “some likeness and symbol as it were of the Divine Majesty, even when it is exercised by one unworthy” (Sapientiae Christianae, 1890, #9).

This conception of the political state is not John Paul II’s. Not that, for him, the political state has no moral task, much less that the state is bereft of God-given norms. The state is repeatedly called to its moral responsibilities in Centesimus. Nonetheless, the Pope regards the state as more of an artificial construct, whose end it is to serve the legitimate economic and cultural interests of individuals and corporate entities that are not reducible to the state. This does not merely accommodate liberal political and legal institutions. Rather, it bespeaks a decisive, normative turn toward the liberal state. The key here is not whether the state has moral responsibilities, but the institutional and juridical limits on how the state may rightfully exercise those responsibilities.

II

At the very beginning of Centesimus, the Pope A takes note of the historical context in which Rerum Novarum was promulgated. “In the sphere of politics the result of these changes was a new conception of society and of the state, and consequently of authority itself. A traditional society was passing away and another was beginning to be formed—one which brought the hope of new freedoms, but also the threat of new forms of injustice and servitude” (CA #4). The problem underscored here was not just Pope Leo’s response to the economic crises engendered by industrialization, but a wider and deeper change in the relation between the state and society, and indeed in the understanding of authority itself. And the problem of “limits inherent in the nature of the state” (CA #11) is not only central to the Pope’s exegesis of Rerum Novarum, but also to his assessment of the contemporary situation.

Pope Leo’s treatment of the state relied upon the traditional language of natural law, that is, the Thomistic concept of natural law as a participation in the eternal law. All power of governance, Leo asserts, “emanate[s] from God” (Diuturnum, 1881, #12). It does not derive from consent or contract, much less from human rights, but from God “as from a natural and necessary principle” (D #5; but also in Libertas Praestantissimum [1888, #13, 17]; Immortale Dei [1885, #3–4]; RN #7, 52). Pope Leo describes the “necessary principle” as the eternal law, of which the natural law is our first participation in divine governance. This participationist scheme, moving from eternal to natural to human laws is, in its essentials, Thomistic. The first and most important limit upon the state is, as it were, from above rather than below.

The broad metaphysical and theological picture here is that of a divine commonwealth in which the political state can properly be described as under an imperative to imitate (however imperfectly) God (LP #33). And because the state is a “likeness and symbol as it were of the Divine Majesty” (SP #9), Pope Leo does not shrink from calling its ruling powers “sacred” (ID #18). The reference in Rerum Novarum to property rights as iura sancta notwithstanding, the principle sanctum in the order of political theory remained, for Pope Leo, the state as a participator in divine governance—even, as he says, when the power is exercised “by one unworthy.” When citizens submit to the civil authority, they submit to divine authority (ID #18).

This point of view persisted, more or less explicitly, in papal encyclicals up to the present time—including what many would regard as the most modern of encyclicals, Pope John XXIII’s Pacem in Terris (1963). Citing Pius XII, Pope John maintained that “the dignity of the state’s authority is due to its sharing to some extent in the authority of God himself” (#47).

While Pope John Paul is certainly correct when he says that the author of Rerum Novarum faced radical changes in the notion of authority, it is equally important to bear in mind that Pope Leo did not give an inch on the older formulation of the authority of the state. While he did have a keen appreciation for the potential tyranny of some modern states—incorporating the modern language of individual rights as one way to counter the tyranny of an unjust or disordered political regime and putting forth the notion of property as a ius sanctum—Rerum Novarum evinces no approval of what could be called (either then or now) “liberalism.” It is worth recalling that the encyclical was issued less than forty years after Pope Pius IX’s Syllabus of Errors (1854), which declared: “It is an error to believe that the Roman pontiff can or should reconcile himself to and agree with progress, liberalism, and modern civilization” (#69).

From all available evidence, Leo XIII regarded the ius sanctum of property as something implicit in the traditional moral and political theory of Thomas Aquinas. The right could be recognized, and indeed emphasized, without in any way conceding a “liberal” doctrine of the state. His main response, therefore, was to reassert the model of a divine commonwealth: in Rerum Novarum (#27) he expressly calls European peoples back to the “primal constitution” of Christian order, by which he means Christendom as a political entity, like “the institution of the Holy Roman Empire, [which] consecrated the political power in a wonderful manner” (D #22).

III

Centesimus Annus bespeaks a distinctly different historical and philosophical view. For one thing, the “image of God” in Centesimus is reserved for human persons, in contrast to the powers of the state:

The root of modern totalitarianism is to be found in the denial of the transcendent dignity of the human person who, as the visible image of the invisible God, is therefore by his very nature the subject of rights which no one may violate—no individual, group, class, nation, or state. Not even the majority of a social body may violate these rights by going against the minority, by isolating, oppressing, or exploiting it, or by attempting to annihilate it (CA #44).

The important point here is John Paul II’s refusal to drape any kind of theological mantle over the state. Nowhere in Centesimus is there any reference to the political state as in the image of divine governance. On the contrary, the political state tends to be described in forbidding terms. John Paul speaks pejoratively, for instance, of the “national security state,” the “social assistance state,” “state administration,” “state capitalism” as “bureaucratic control” and as “secular religion” (CA #19, 48, 49, 35, 25). To be sure, this language is intended to refer to degraded and disordered aspects of the modern state. Still, Pope John Paul is extremely critical of the power of the political state—not so much as an abstract entity in political philosophy, but as a concrete historical reality.

Thus whereas Leo XIII was generally sanguine about the positive role of the political state, but cautious about modern economic developments, John Paul II is generally optimistic about the creative dynamism of the modern business economy, but palpably suspicious of the state. The reason for the divergence between them is hardly mysterious: Leo lived at the end of an era in which the authority of Christian princes was being challenged by secular ideologies and in which both socialism and radical laissez-faire practices were threatening the civitas as Leo knew it. John Paul, on the other hand, witnessed the emergence of totalitarian states that conducted a policy of “total war” within and without (CA #14). They obliterated, along with Christian culture, the conditions of economic development and the rule of law.

From John Paul’s perspective, the modern state has not so much defaced the political image of divine governance vested in the civil authority as it has assaulted that image as it subsists in human persons. Hence where Leo was interested in reconnecting the civil authority to the proper understanding of divine governance under the eternal law, John Paul emphasizes the need to connect the state to a proper understanding of the human person. Whether in the areas of economics, law, or politics, he emphasizes and reemphasizes the teaching that the root cause of totalitarianism is a false anthropology (CA #11, 133).

How, in the view of John Paul, is the state to be limited? His most critical remarks about the welfare state are made in light of the principle of subsidiarity (CA #48, and also in #10, 15, 49), drawn not from Leo XIII but from Pius XI. He is exceedingly critical of top-heavy bureaucracies that, however well-intentioned, undermine local initiatives and responsibilities in economic matters. Interestingly, when Centesimus addresses the problem of the relation between the state and those who are poor and/or vulnerable, it speaks mainly of the responsibility to protect juridical rights (CA #10)—a notion markedly different from a responsibility to engage in administrative interventions. While the state has a responsibility to oversee and direct the exercise of economic rights, the “primary responsibility in this area belongs not to the state, but to individuals and to the various groups and associations which make up society” (#48). Significantly, the Pope maintains that the decentralization of power and responsibility promotes greater productivity and efficiency, “even though it may weaken consolidated power structures” (CA #43).

When he speaks of the “rule of law,” however, he goes beyond the principle of subsidiarity. John Paul writes approvingly that Pope Leo XIII

presents the organization of society according to the three powers—legislative, executive, and judicial—something which at the time represented a novelty in church teaching. Such an ordering reflects a realistic vision of man’s social nature, which calls for legislation capable of protecting the freedom of all. To that end, it is preferable that each power be balanced by other powers and by other spheres of responsibility which keep it within proper bounds. This is the principle of the “rule of law” in which the law is sovereign, and not the arbitrary will of individuals.

Interestingly, sections 32–33 of Rerum Novarum, cited as evidence for this “novel” teaching, contain a quite different approach. Here, Pope Leo quotes Aquinas’ dictum: “As the part and the whole are in a certain sense identical, so that which belongs to the whole in a sense belongs to the part.” Read in context, this is not even remotely similar to John Paul’s notion of limiting the state by means of pragmatic allocation and division of its powers, much less an equation between such an arrangement and the rule of law.

The check upon the power of the state is not drawn simply from an understanding of the hierarchical and organic distinction between the parts of the whole, but from a “realistic” understanding of structural limitations imposed upon institutions of the civil potestas. While the division of powers can be interpreted as something complementary to the older organic model, the equation of such structural limits with the “rule of law” is modern. It is modern not only with respect to its historical pedigree in eighteenth-century republicanism, but also with respect to its function: one speaks of the division of powers not to provide a picture of how the individual members are distinguished and fitted to the body but to ameliorate the potential abuses of power.

The structural division of the civil potestas is not a necessary metaphysical principle. It does not, as was claimed for the Marxist state, flow from a knowledge of “deeper laws,” but has been learned by trial and error. Among the many philosophical errors John Paul attributes to modern totalitarians is that they took themselves to be “exempt from error.” And in exempting themselves from error, they erected no structural safeguards to the misuse of civil power.

This is not for one moment to suggest either that John Paul II sees in the structural elements of the rule of law merely extrinsic compensation for human failure or that he recommends a merely neutral and proceduralist rule of law shorn of substantive notions of justice. “Authentic democracy,” he warns, “is possible only in a state ruled by law and on the basis of a correct conception of the human person” (CA #46). Nor would his understanding of what is entailed in the “correct conception” be apt to satisfy a liberal proceduralist. Milton Friedman’s remark that the Pope’s emphasis upon obedience to the truths about God and man “sent shivers down my back” speaks for itself.

Even so, it is important not to lose sight of the fact that, however adamant about the importance of timeless truths, the encyclical clearly introduces the note of human fallibility with regard to political institutions. In the light of recent history, two problems in particular emerge in somewhat sharpened focus: the need, in economics, to protect nongovernmental initiatives, and the even more pressing need to set juridical limits to the power of the state. The Pope’s turn toward a liberal model of the state is not shaped by any conscious adversion to the theories of Locke, Madison, or any of our great constitutional jurists. Forged in the crucible of a very different history, Centesimus nevertheless recommends both structural and rights-based limits on the state that are remarkably similar to those achieved in Anglo-American institutions.

There remains the question of how to reconcile the Pope’s sense of the state with the ideal of “solidarity” that is so evident in the pages of the encyclical. Is it possible to espouse a liberal, or at least quasi-liberal, view of the state and at the same time speak, as he does, of the “expanding chain of solidarity” (#43)? (This is, of course, a question that has led to fervent debate among liberal theorists themselves: can liberal political institutions accommodate the communitarian ideals of modern citizens?)

One thing this Pope has learned is the inevitability of conflict. For him, conflict in the economic and social sectors is not necessarily an evil or a disordered phenomenon. Indeed, he appears to assume that some states will be religiously pluralistic and will thus have to negotiate religious differences according to juridically recognized rights. It is important to remember that Marxist and socialist states claimed to have as their principal goal the elimination of self-interest and societal conflict by subsuming all activities into the power of the state. For John Paul, the main problem is not the stress and strain of either religious pluralism or economic markets. Rather, it is conflict not “constrained by ethical or juridical considerations”—a “total war” in which force is put above the rule of law (CA #14). The state’s principal task, then, is to determine the “juridical framework” of economic and social activities.

In contrast to the classical or medieval conception of the civitas, the state in Centesimus is not the locus or principal expression of cosmic harmony. It is not empowered to smooth over the rough and tumble of economic and religious difference. Nor is it to sacrifice the shaggy and incomplete dynamisms of economic activity to consolidated state power. John Paul recognizes that once it is submitted to proper limits, the power of the state will be weakened. It is interesting that the reference to the “progressively expanding chain of solidarity” in #43 is set in the context of a discussion of limits upon state power.

In the encyclical Sollicitudo Rei Socialis (1987), solidarity denotes various kinds of “collaboration” among individuals and states (SR #39). Yet in Sollicitudo solidarity also stands in tension with freedom: “In order to be genuine, development must be achieved within the framework of solidarity and freedom, without ever sacrificing either of them under whatever pretext” (SR #33). Here, the Pope distinguishes between the principle of social and affective unity whereby persons or groups collaborate toward common ends, and the principle of freedom. And it is the latter principle that constitutes the reason for political rights.

In Centesimus the cultural, familial, economic, and religious activities are ordained to “solidarity” of various sorts, while the state, on the other hand, has the obligation to protect the rights of citizens to engage in such activities. Throughout the encyclical the Pope invariably reserves juridical language for application to the state’s dealings with its citizens and reserves for the societal and cultural spheres the language of solidarity. For instance, he writes that:

According to Rerum Novarum and the whole social doctrine of the church, the social nature of man is not completely fulfilled by the state, but is realized in various intermediary groups, beginning with the family and including economic, social, political, and cultural groups which stem from human nature itself and have their own autonomy, always with a view to the common good. This is what I have called the “subjectivity” of society which, together with the subjectivity of the individual, was canceled out by “real socialism” (CA #13).

This is but one piece of evidence of John Paul’s clear distinction between the structures of the state and the “subjectivity” of society. Indeed, even though the Pope regards religion as the center of culture, and hence the preeminent locus for solidarity, he nevertheless insists that juridical right to religious liberty is the “primary foundation of every authentically free political order” (CA #29).

In Catholic Social Thought & Liberal Institutions (1989), Michael Novak has pointed to a chief difference between “solidarist methods” (whether of the left or right) and the institutional procedures of liberal regimes. Whereas solidarist approaches to the common good envisage the public authority “suffused throughout the society from above,” the liberal approach emphasizes multiple and coordinate perspectives. In this light, the traditional papal doctrine of subsidiarity is amenable to two quite different views of institutions. If we take the older understanding of organic hierarchies, the principle of subsidiarity reemphasizes the notion of those proper analogies that obtain between the various levels of the body politic. Solidarity could be said to suffuse the entire body, but be enacted in analogically different ways. If, however, we take the perspective of liberal institutions, the sectors are more sharply differentiated. Even the powers of the state are to be divided. In Centesimus Annus, the organic idea of one power subsisting in another is jettisoned in favor of the idea of externally coordinated powers. Throughout the encyclical there is no hint of Aristotelian organicism, at least not with respect to the state. This allows the Pope to emphasize the nature of solidarity in the social, religious, and cultural spheres.

Centesimus Annus is not a “liberal” account of the destiny of man, but it does reflect the hard-won lessons of liberal political institutions. John Paul’s stringent attention to the structural limits of the state, his careful efforts to distinguish its sphere from the social, economic, and religious life, and his persistent endorsement of individual rights against the state must be regarded as a rejection of those liberation theologians like Gustavo Gutierrez who deny the “distinction of planes” (e.g., between politics, law, religion, and culture). Centesimus, therefore, not only represents a considerable change from the older “conservative” model of organic hierarchies, it also stands adamantly opposed to the “leftist” reduction of praxis to an undifferentiated notion of politics. It would also seem that Centesimus Annus settles the much-debated business about a Catholic “third way.” On the eightieth anniversary of Rerum Novarum, Pope Paul VI issued Octogesima Adveniens (1971). The encyclical appeared to suggest a third way between the Marxist and liberal models, both of which Pope Paul put under the rubric of “ideology.” Concerning liberalism, Paul wrote:

[I]t asserts itself both in the name of economic efficiency, and for the defense of the individual against the increasingly overwhelming hold of organizations, and as a reaction against the totalitarian tendencies of political powers.… But do not Christians who take this path tend to idealize liberalism in their turn, making it a proclamation in favor of freedom? They would like a new model, more adapted to present-day conditions, while easily forgetting that at the very root of philosophical liberalism is an erroneous affirmation of the autonomy of the individual in his activity, his motivation, and the exercise of his liberty.

While Centesimus does not disagree on the point about liberalism as an “ideology,” the events of 1989 seem to have led John Paul to render a quite different verdict about the historical and institutional issues. Bluntly put, John Paul takes more seriously than did his predecessors the practical need to limit totalitarianism. He takes more seriously the practical, lived experiences of peoples who have suffered under these states.

IV

The prominence of rights language in the postwar encyclicals and pronouncements represents a considerable change from the prewar encyclicals running from Leo XIII to Pius XII. Of course, Pope Leo XIII insisted upon the importance of natural rights, and may fairly be credited with making the idea a more or less permanent fixture in papal social encyclicals. Yet something important did change after the Second World War. Papal and ecclesial documents began for the first time to speak of rights in terms of an ideal of modern constitutionalism. Indeed, both Dignitatis Humanae (1965, #1) and Pacem in Terris (1963, #27) explicitly refer to rights in the context of constitutional and juridical limits upon the political state.

No doubt there are a number of reasons for this. The Church appropriated the language used not only by international bodies like the United Nations, but also by the Western allies who subdued Hitler and Mussolini. As Maritain wrote in 1951, the “great achievement” of the eighteenth century had been “to bring out in full light the rights of man as also required by the natural law.” The wars in Europe brought the Church to see the good sense of this historical judgment. Hence, there was at least one thing about the Enlightenment that the Church could embrace, for both philosophical and practical reasons. The new Codex Iuris Canonici (1983) maintains that: “To the Church belongs the right always and everywhere to announce moral principles, including those pertaining to the social order, and to make judgments on any human affairs to the extent that they are required by the fundamental rights of the human person [quatenus personae humanae iura fundamentalia] or the salvation of souls” (canon 747/2). These iura fundamentalia might include natural rights, or for that matter, particularly important legal and constitutional rights. In any case, the Code explicitly refers to the Church’s authority to address iura fundamentalia, rather than to interpret the lex naturalis.

What are these rights? In Centesimus the Pope does not clearly distinguish among their different genera and species, but appears rather to use an all-purpose language of natural rights. In some places, he speaks of iura fundamentalia (fundamental rights, CA #6), iura hominis (rights of man, CA #22), and of iura … ab ea abalienari (inalienable rights, CA #7). Elsewhere, he refers to one or another right as a ius naturae (right of nature, CA #7), or a ius ad autoniam (a right to autonomy, CA #30). Of course, a fundamental right need not be the same as a natural right, and all natural rights need not be seen as inalienable ones. The language does not have the same kind of precision that we would expect in an academic treatise on legal and political rights. That problem notwithstanding, it is generally clear what the Pope has in mind: natural rights that are in one or another sense antecedent to political society.

There is no need here to extract a complete list of these rights; they are enumerated in more than one place in the encyclical. Sometimes the Pope refers to the rights enunciated in Rerum Novarum, while in other places he refers to rights in the light of the events of 1989. But he also refers to rights affirmed by various international bodies, as well as those mentioned in one or another papal encyclical or conciliar document. Taken together, and edited somewhat for brevity, a short list includes the following:

—“right and duty to seek God, to know him and to live in accordance with that knowledge” (#29, 47);
—“rights to private initiative, to ownership of property, and to freedom in the economic sphere” (#24);
—“right to express one’s own personality at the workplace without suffering any affront to one’s conscience and personal dignity” (#15);
—“right to private associations” (#7);
—“right to life” (#47);
—“right to live in a united family and in a moral environment conducive to the growth of the child’s personality” (#47);
—“right to develop one’s intelligence and freedom in seeking and knowing the truth” (#47);
—“right to share in the work which makes wise use of the earth’s material resources” (#47).

Again, there is no explicit reference to “natural law.” Pope Leo XIII might have been surprised to discover that the encyclical celebrating and recapitulating the hundreth anniversary of Rerum Novarum had nothing to say about natural law. Pacem in Terris, which contains the most extensive papal compilation of natural rights, was careful to claim that the rights are derived from God via the natural law: “And rights as well as duties find their source, their sustenance, and their inviolability in the natural law which grants or enjoins them” (PT #28, and also 4–7). Even the conciliar decree on religious liberty, Dignitatis Humanae, retained the traditional language of the eternal and natural laws (DH #3). Whether or not Leo XIII would have approved of Dignitatis, he certain would recognize its philosophical vocabulary.

How are we to interpret Centesimus in this regard? Does the absence of explicit reference to natural law represent a rhetorical anomaly or oversight, or does it bespeak a substantive position? Having jettisoned the older participationist model of the political state, has the Pope taken the next step, which is to drop the metaphysical language of natural law associated with that model, in favor of natural rights?

An alert reader can find bits and pieces of natural law language in Centesimus. In paragraph #29 the Pope refers to “truth, both natural and revealed.” But he seems more interested here in showing the conformity of rights to the Helsinki Accords than to any scholastic notion of reason and faith on matters of law. In paragraph #13, he refers to the various intermediary groups as stemming “from human nature,” but immediately introduces his own philosophical language of the “subjectivity” of the individual and society. Indeed, where Leo XIII gave a natural law analysis of the right to human association—“all striving against nature is in vain” (RN #17)—Pope John Paul II enunciates the social dimension of “personalism” (CA #38). There can be no question but that the Pope wants to discuss these things in the light of a theocentric anthropology. The truth about man is a central theme to which the issues of rights, markets, and the state are subordinated. Inasmuch as one believes that there is an objective morality based upon the truth about human nature, one could be said to have a natural law position. But this could be claimed for any species of moral objectivism.

While the text of Centesimus Annus simply does not provide us with a sure way to answer the question about natural law, there are three things we do know. First, since the pontificate of John XXIII, the popes have been sensitive to the danger that the term “natural law” may be construed to mean the subhuman regularities and predictabilities of physical nature—that is to say, “natural laws” as they are understood by the modern sciences. While Americans are perhaps more liable to recognize the connection between “natural law” and the so-called “higher law,” this is not necessarily so for Europeans. For us, natural law as a “higher” law is evident in our Declaration of Independence, in the discussion leading to the adoption of the Thirteenth and Fourteenth amendments, in Martin Luther King’s “Letter from Birmingham Jail,” and in the almost continuous judicial use of the concept (for good or for ill) since the late nineteenth century. Indeed, there is something distinctively American in John Courtney Murray’s case for natural law in We Hold These Truths (1960). Murray believed that Americans can return to the commonplace of natural law as a source of consensus about basic political and legal values because our regime was founded in the eighteenth century upon that consensus. But, as the Pope points out in Centesimus, Europeans “are closely united in a bond of common culture and an age-old history” (#27). The culture of Europe was not founded upon a consensus about the rather abstract doctrine of natural law. In fact, for Europeans, natural law can suggest either an ahistorical order of physics and biology, or the tradition of revolutionary Jacobinism, which is hardly suited to a defense of first things in the political order.

Moreover, it must be remembered that the Vatican was stung by the criticism that Humanae Vitae (1968) reduced the moral norms concerning birth control to a kind of biologism. Cardinal Ratzinger, who is more comfortable with the scholastic language of natural law than is Pope John Paul II, has nonetheless taken great pains to explain that natural law pertains to a “rational order” rather than to biological necessities. Hence, we can speculate that the absence of natural law language in Centesimus reflects a rhetorical strategy to avoid a reductionist construal of the terms.

In the second place, Centesimus Annus, like many other of the Pope’s writings, gravitates toward the historical, cultural, and religious intelligibility of human nature. For example, the Pope writes:

Man is understood in a more complete way when he is situated within the sphere of culture through his language, history, and the position he takes toward the fundamental events of life such as birth, love, work, and death. At the heart of every culture lies the attitude man takes to the greatest mystery: the mystery of God. Different cultures are basically different ways of facing the question of personal existence. When this question is eliminated, the culture and moral life of nations are corrupted (CA #24).

Of course, the culturally and linguistically situated agent is reconcilable with some theories of natural law. Yet it remains true that this Pope is more interested in discussing the universal and transcendent characteristics of man through the realms of culture and history, and ultimately theology, than he is in terms of either scholastic or Enlightenment versions of natural law.

Finally, and most importantly, the subject of natural rights is a ready-made and widely accepted way to address the problem of limits upon the political state. A. P. d’Entrèves once said that “the real significance of natural law must be sought in its function rather than in the doctrine itself.” Although this does not recommend itself as good advice for one who wishes to understand the philosophical issues, it is a shrewd way to cut through the often bewildering verbal protocols about natural law. Functionally speaking, discourse based on natural law of rights has had a readily identifiable purpose, viz., the limitation of state power. This best explains the Pope’s use of natural rights language. It fits hand in glove with his interest in liberal political institutions.

On this score, paragraph #29 is important, for it summarizes very clearly the functional purpose of rights. Referring to modern totalitarian regimes, the Pope maintains that: “Man was compelled to submit to a conception of reality imposed on him by coercion and not reached by virtue of his own reason and the exercise of his own freedom. This principle must be overturned and total recognition must be given to the rights of the human conscience, which is bound to the truth, both natural and revealed. The recognition of these rights represents the primary foundation of every authentically free political order.”

The Pope gives three reasons for the urgency of the rights-based approach to the political order. First, the older forms of totalitarianism are not completely vanquished. In effect, the Pope recommends that rights be juridically established while the opportunity is at hand. Second, even in developed countries there is what the Pope calls “an excessive promotion of purely utilitarian values.” Because of the tendency to enlist the state to resolve social, economic, and political crises on a merely utilitarian basis, it is crucial to erect rights-based limits to governmental power. Third, and perhaps most interesting, the Pope worries about the problem of “religious fundamentalism” denying “to citizens of faiths other than that of the majority the full exercise of their civil and religious rights.”

Paragraph #29 is one of the most extraordinary discussions in the entire encyclical. Among the kinds of mischief that rights are supposed to guard against, the Pope underscores those caused by political majorities—either in the name of utility, or in the name of religion. This bespeaks the ideal of the liberal rule of law rather than the ideal of the medieval civitas, or for that matter the ideal of solidarity. In addition to the division of governmental powers, it is necessary to provide for individual rights as checks against what majorities can effect through the government. In #44, where he discusses the rule of law, the Pope expressly says that rights must be understood as inviolate against “even the majority of a social body.”

It would be wrong, of course, to insinuate that the convergence between the Pope’s discussion of rights and the standard liberal accounts of rights means that he operates from the same philosophical premises. The Pope’s sense of urgency for the rights-based limits upon the state is shaped by his reading of historical events. It is not taken from a thin account of the human good, nor from the premise that individual liberty is the highest good—or even the highest political good. In paragraph #29, after all, the Pope insists that protection against utilitarian values is needed in order to “recognize and respect the hierarchy of the true values of human existence.” Properly understood, the Pope says that we need rights not to protect ourselves against a “hierarchy of true values,” but rather to protect ourselves against a state-sponsored preemption of those values. We can imagine a civil situation in which basic issues of justice and human flourishing are not treated in this language of juridical rights. But that is not the world that Centesimus Annus has in mind.

V

The clearest achievement of Centesimus, then, is the Pope’s reckoning with the problem of the modern state. Whether we view the problem from our own historical experience, or whether we see it from the standpoint of the Pope’s view of the events of 1989, it is clear that liberal political and legal institutions are a good (though not perfect) way to limit the power of the state. John Paul is the first modern pope fully to come to terms with this issue. He sees clearly that the older notion of the state as the image of divine authority does not square with modern political realities. Most Catholics have lived in this century under the yoke of despotic political regimes that bear not the slightest resemblance to the classical or medieval conception of the civitas.

Although we can only speculate about this, it might be that the Pope is making a bid to return to what he takes to be the original source of European unity—the religious vision of human nature—while at the same time endorsing liberal political structures to protect the recovery of that vision. We should take the Pope seriously when he says that religion is the key to culture. Whereas Pope Leo XIII never gave an inch on his understanding of the political civitas, John Paul does not compromise on his vision of a religious principle for cultural unity. The principle of individual rights against political majorities, the division of the organs of state power, and the warning about the welfare state are for this Pope things that need to be in place if the Church is to go about its mission of creating religiously centered cultures. He realizes that, even in Europe, the Catholicizing of the culture is a long-term project. Whatever inherent merits there are to liberal political institutions, they are (perhaps like the Pax Romana) instrumentally valuable to the Church.

But there is a gamble in all of this. The Pope has put behind him a philosophical approach that is not only familiar to Catholics, but has much in its favor. Centesimus Annus does not reflect the elegant metaphysical scheme of Rerum Novarum. Nor does it maintain the scholastic language that shaped the thought of both conservative and progressive pontiffs over the past century. Whether this Pope’s approach to issues of human nature, law, and political society can match the level of theoretical integration achieved in the older method and language is yet to be seen.

On this score, the rights-based strategy for limiting the power of the state harbors a number of potential problems that this encyclical does not address. It is one thing to set aside the older natural law account of the state, but it is quite another thing to argue for natural rights without some grounding in a doctrine of natural law. Although the Pope wants to avoid the scholastic and Enlightenment versions of natural law, it must be recalled that the American founders did not. We may ask whether the liberal state can be defended, at least on terms acceptable to Catholics, without some kind of natural law theory. Centesimus Annus seems to ground these rights in a personalist-theological view of the human person, but without any of the intermediate analysis traditionally associated with natural law. Among other things, there is the danger that if the ground of these rights resides only in revealed theology, that ground will be summarily dismissed, with the result that there remains no intellectually defensible ground between Scripture and anti-perfectionist liberalism (as espoused, e.g., by Rawls, Dworkin, et ah). While this Pope seems more interested in the practical rather than the theoretical issue of rights, these practical considerations will never be sufficient to keep rights properly focused.

Furthermore, it should go without saying that the most important moral teachings of Catholicism cannot be encapsulated in the language of rights. Rights language inevitably tends to overflow from its limited political and legal functions and to infiltrate all levels of moral analysis and every sector of cultural life. It remains uncertain whether the Pope’s strong affirmation of the correct hierarchy of values can be effectively interrelated with the rights-based personalism. In Western constitutional democracies, this move toward a rights-based personalism has not achieved a congruence between law and a correct hierarchy of values. In fact, secular versions of this approach have brought about the very opposite of what the Pope has in mind.

We can understand why the recently emancipated peoples of Europe are so eager to vindicate the ideal of rights. Immediately after the failed coup d’état of August 1991, the Soviet Congress of People’s Deputies adopted a “Declaration of Human Rights and Freedoms.” The first article states: “Every person possesses natural, inalienable, and inviolable rights and freedoms.” In a similar vein, the former Czech President, Václav Havel, recently said at Lehigh University that he is “in favor of a political system based on the citizen, and recognizing all his fundamental civil and human rights in their universal validity.” The state, he said, must be based upon rights rather than “nationality” or “religion.” As Americans, we cannot but approve of this aspiration. But we also understand that even a modern, liberal polity involves more than individual rights.

In this respect, the Pope might learn from our historical and institutional experience, in which all-purpose and vague notions of natural rights have sometimes tended to subvert the appreciation of the common good. Given the Pope’s strong endorsement of the rule of law, there is the problem of how to litigate, balance, and enforce all of these rights. While Centesimus reflects a keen appreciation of institutional limits upon the power of the state, the encyclical is not very illuminating on the institutional problems that attend the expansion of rights claims by individuals. What, for instance, are the judicial and administrative implications of a right to “express one’s personality in the workplace”? Whatever meaning such a right might have in Warsaw, it is apt to have a quite different one in Malibu, California.

In any case, the historical career of the Marxist state in Eastern Europe is closed; the history of how these peoples can forge an appropriate political and legal order is still to be written. Centesimus takes the gamble of recommending new institutional ways to engage that project—ways concerning which the Church has had relatively little experience. But given its much longer historical experience, and its capacity to resist the degraded ideological baggage that frequently goes under the name of “liberalism,” the Church could prove to be a crucial force for the project of limited government. Whoever is pope in 2091 will no doubt take stock of the new lines opened by Centesimus Annus. He will be able to evaluate whether, in fact, the cultural and religious mission of the Church thrived under liberal political institutions, and whether the Catholic version of a rights-based personalism was able to distinguish itself from the debased secular versions that seemed triumphant in the closing decades of the twentieth century.

Russel Hittinger,a member of the Editorial Advisory Board of First Things, is author of A Critique of the New Natural Law Theory. He teaches at the Catholic University of America and is a Research Fellow at the American Enterprise Institute.