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The Guild of Catholic Lawyers
The Juridical Organization of the International Community1
Address by Rev. John Courtney Murray, S.J., at Recent Celebration of Red Mas at Chrurch of St. Andrews
As the Temples of Justice reopen throughout the land, the cosmic struggle to achieve the work of justice that is peace is entering more deeply into a new phase. The military victory of our arms is now assured; now we are growing increasingly concerned with the juridical victory that must crown the triumph of our arms. History has taught us that peace does not lie sheerly in the triumph of force, but in the permanent, ever renewed triumph of law over force. And this triumph is won only by the superior energies of the human spirit, by high political intelligence operating under the guidance of a profound moral sense. "In its ultimate and deepest significance," Pius XII has said, "peace is a moral and juridical process."
One encouraging evidence that this truth is beginning to be grasped lies in the mounting conviction that the peace of the world will not be assured unless the community of nations is somehow juridically organized. I wish to speak this morning in support of this conviction.
Let me first communicate to you one of my own anxieties on the subject. In his address at the opening of the Dumbarton Oaks conference, our Secretary of State said: "No institution . . .will endure unless there is behind it considered and complete popular support." He was absolutely right; in fact, he stated an idea that is pivotal in the program of Pius XII. Its undeniable truth gives birth to my anxiety. American public opinion, in common with great reaches of public opinion throughout the world, does seem to have marshalled itself behind the idea of a general international organization, and is prepared now to promote and support it. The view is widely accepted that America must not go back to the pacifist isolationism of the decades following the First World War, nor go on to the imperialist isolationism that may present itself as her future temptation. This fact is most heartening; there is a promise of peace in it. But it leaves room for some misgivings. For the question rises: Have we, as a people, grasped the true nature of the necessity for the juridical organization of the international community? What are the bases of the present public opinion? What is the power behind it? What shocks can it endure? What is its promise of permanence? Is it a thing of the surface, a mood of the moment, a sentiment born of the emotional shock of total war? Or is it a settled conviction, whose roots are sunk in the solid conclusions of political intelligence and moral science? These are the questions we must anxiously ask.
For my part, I am convinced that there is little hope for a general international organization, and consequently little hope of lasting peace, unless we, as a people, with the peoples of the world, firmly grasp that the juridical organization of the international community is an unescapable demand of social justice, a true and genuine moral imperative, laid upon the collective conscience of states and peoples by the moral law, and sanctioned by the sovereignty of God. The reason is plain; no other motive than a moral imperative has the abiding and compelling power to support statesmen and peoples in their gigantic task of organizing a peaceful world.
Let us make no mistake about it. What the nations today are undertaking is a new beginning, which will end no man knows where. The creation of juridical institutions that will guarantee an order of justice and peace is a long, long task that will meet with many setbacks. In its prosecution there will be mistakes, deceptions, discouragements. Hostility to the very idea will break out in willful men and selfish nations. At times, no doubt, the goal itself will almost vanish from our view. Consequently, our common purpose to organize an international order of justice must be founded on a motive that will remain compelling under every change in national mood and world circumstance, that will not crumble in hours of thwarting and disillusionment, that will be as valid in one nation as in another, and that will be as operative in future generations as in our own.
We shall find this indestructible, ever-urgent motive only in the unchangeable moral law, written in the collective conscience of mankind, and dictating to it its permanent obligation to further, by means of international organization, the moral and juridical process that is peace.
For my part, I do not feel assured that present sentiment for a general international organization is based on a sense of moral obligation. Hence, my anxiety is lest it falter and fade. If it fades, the counsels of statesmen will have lost their surest guide and support, and the world will have lost its hopes of peace.
If you share my conviction and anxiety, you will be prepared to accept the
suggestion I make this morning. The suggestion is that you and I have a responsibility for the enlightenment of the public conscience concerning this critical moral issue. We have, therefore, a duty to see the issue clearly ourselves.
As a help to a clear vision of the issue, I must take up one preliminary question. On what manner of international organization does this moral imperative fall? First, it does not fall on the creation of what is called a "world-state," a supernational government under which national sovereignties would be more or less destroyed. Apart from the fact that this political conception is unrealizable, now or ever, it has no basis as far as I can see, in Catholic political and moral science. Basically, it looks to me like the projection on the international plane of the individualistic liberal illusion that has contributed to the wreck of national society itself.
On the national plane, this illusion denies that there are any institutions that mediate between the isolated individual and the state. In its extreme form, this illusion is found in the famous Chapelier law (1791) of the First French Republic, which insisted that politics takes account of only two goods, the private good of the individual and the public good of the state, and which consequently denied to French citizens the right to prosecute by institutional, organized action the intermediate special goods of particular groups, such as the church, the professions, the laboring class, etc. On the international plane, the same illusion would have no really sovereign political institutions mediating between the individualthe world-citizenand the world-state. It asserts that each of us is directly and primarily a member of humanity, before being a member of a racial or national group.
In both its forms this theory stands in opposition to the Catholic doctrine of the organic state, which maintains the natural necessity for a corporative organization of society, based on the principle that there is a natural sociability among the member of particular groups within a state and among the member of a national community. This natural sociability is based on certain common aspirations, interests and needs; and it creates the right to pursue by organized action the ends that are of value to the group. Catholic doctrine, therefore, would maintain that national states, with their proper sovereignty, are natural political units; they exist by natural necessity and right, and they may not be merged into a community of world citizens under some supranational government.
On the other hand, the moral imperative of which I speak will not be content with the establishment merely of what is called "continuous international conference." Catholic political and moral realism regards this minimalist conception of international organization as falling short of the demands of human nature. A continuous international conference, its advocates say, would create an atmosphere favorable to peaceful relationships among the nations, and would serve as an instrument of friendly cooperation. Perhaps it would do these things. They are very valuable and necessary things. But they are not all that must be done. We must create among the nations an atmosphere of peace, a disposition to collaborate. But, following the imperatives of our social nature, we have above all to create an international juridical order. Men are not effectively kept at peace by atmosphere, but by law, and by forces operating under law. Men and nations do not collaborate unless there is a compelling necessity for them to do so. When the compulsion of war is passed, another kind of compulsion will be neededthe juridical compulsion of an international organization. Writing about the Federal Council of Churches' fourth Pillar of Peace, President Dodds of Princeton said: "It is through social and political institutions that ideas are made to march. Unless the idea of international collaboration is embodied in political institutions, it will remain a pious platitude." With Pius XII, I should prefer the term "juridical" institutions; but at any rate, the statement is most true.
I believe, therefore, that our moral imperative falls on a mode of international organization that stands somewhere between the minimalist continuous international conference and the maximalist world-state.
It demands that the international community be organized in terms of its natural political units (the sovereign states); and it demands that the international community be truly organized, that is, juridically organized. Its essential demand is for juridical institutions in the international field that will control, not destroy, national sovereignties. Demanding these institutions, it demands that there should exist in the international scene a coercive power adequate to protect the juridical order and to vindicate it in case of violencea coercive power that would be at the service of an international institution, to be employed in the interests of the common good.
I do not think that the moral law itself makes more than these two demands concerning international security. It is for political intelligence, guided by moral law, further to determine the form of these juridical institutions, and the exact manner in which the sword is to be put at their disposal. Nevertheless, in making these two demands, the moral law takes us very far along our waymuch farther than many men of inferior vision and excessive timidity (which they may prefer to call political realism) are willing to go.
These demands lead, for instance, to the conclusion that a limit must be placed on one right of which sovereign national states have always been exceedingly jealousthe right to arm without limit, and to regard the determination of their national rights, and the armed defense of these rights, as exclusively a national affair. On the contrary, the moral and juridical process that is peace must be made to evolve to the point where national states can trust themselves to the international protection of their rights, just as the citizen now trusts himself to the protection of the organs of the state.
Recall the frontier days in America, when each citizen carried the law on his hip, in the form of a six-shooter. We look on those days as uncivilized; for civilization means the juridical organization of community life, which outlaws six-shooters on every man's hip, because the defense of the individual's rights and liberties has become a collective and organized defense under juridical guarantees. Today each nation claims the right to carry the law on its hip, in the form of armaments whose size and quality it presumes to determine for itself. But this is an uncivilized state of affairs, that must give way under the progressively more perfect organization of the international community. Civilized international life demands that the community itself should guarantee the rights of its members, and itself apply coercive measures in case of their violation.
I am not, of course, suggesting that national states should be stripped of all their armaments, in exactly the same way as individuals were once deprived of their six-shooters. There is an analogy here, because the national state within the international community retains a sovereign right to be armed, which it would be absurd to attribute to the individual within the national state. But I am suggesting that within the framework of a new order based on moral principles and made secure by juridical institutions restrictions must be placed on the present arbitrary sovereignty of the state in the whole matter of armaments and national defense.
One disastrous temptation must be removed from every nationthe temptation to think that it may carry an immense six-shooter on its hip, arbitrarily declare itself to be the law, and enforce in its own case whatever it thinks to be justice. We have had evidence enough to know how real this temptation is and how tragic for humanity are the consequences of yielding to it.
The international community, therefore, through the organized action of its members, must move on to a state of civilization in which, in Benedict XV's words, the material force of arms will be replaced by the moral force of right as the primary means for the defense of national rights, and in which the secondary means of such defensearmed forcewill be employed only at the instance of an international institution and under its control.
The great jurist, Guido Gonella, has said that the limitation of armaments and its correlative problem, the use of armed force in national defense, "is the problem of the future, the touchstone of the political and moral maturity of the community of peoples." Its solution is obviously bound up with the solution of the problem of international security through juridical institutions that will act to forestall and settle disagreements by means other than force, or if these means fail, by themselves employing force under law. And pressing for the solution of both these related problems is a moral imperative laid upon the collective conscience of mankind.
So much, therefore, for the object of our moral imperative. Before going farther, let me introduce an important distinction. In all this matter, there are two questions involved. First, ought international juridical institutions be established? Secondly, will they work? Much depends on which of these two questions receives prior discussion. I should insist on putting the first question first; for it is by right the first question. If there is a categorical moral imperative for the establishment of these institutions, it follows that they must be established, and they must be made to work. It follows further that they can be made to work, if only men have the common will to make them work. This is my full case.
Let us now look more closely at this moral imperative itself: does it exist? What are the reasons for it? For the sheer fact of its existence, we have the consensus of the highest and the best moral authority. The idea that the community of nations can and should be juridically organized is a part of the best Catholic political and moral thought, however slow many Catholics have been in realizing the fact. The moral authority of Pope Benedict XV was set squarely behind the idea, in the Encyclical Pacem Munus Dei, issued in 1920, at the critical moment of the life of the League of Nations.
The principles of Pius XI on social justice, though formulated chiefly on the national plane, clearly dictate the idea. And Pius XII, often and categorically, has called for international juridical institutions, most recently in his radio address on September 1, on the fifth anniversary of the war. Implicit and explicit in the statements of the Holy See is the idea that the juridical organization of international life is not simply a political expedient but a necessary thing deriving from the moral law. The Christian principles held by Protestant bodies have led them to the same conclusions. The Oxford Conference in 1937, the Federal Council of Churches through its Commission to Study the Bases of a Just and Desirable Peace, the Council of Bishops of the Methodist Church, the General Assembly of the Presbyterian Church, the various unions of Congregationalistsall these organs of Protestant moral opinion have emphasized the idea. Like emphasis had been laid on it by the official utterances of the Synagogue Council of American, the Central Conference of American Rabbis, the Rabbinical Assembly of America, and other Jewish organizations. Finally, last October, Catholic, Protestant and Jewish leaders joined in issuing the seven-point Pattern for Peace, whose fifth point sets down, as one postulate of the moral conscience of mankind in the matter of peace, "the organization of international institutions" with judicial functions. There is no doubt that the best moral thought of America and of the world is solidly behind the idea.
Nor is it too difficult to show that this high moral thought rests on solid reasons. The basic argument may be simply stated. The international community has historically emerged as a natural society (a society that exists by the law of man's social nature), with its own proper good. The law of nature therefore demands that this society be organized in a properly human way for the prosecution of its common good. This properly human mode of social organization is juridical organizationa rational system for the control of possibly conflicting freedom through juridical institutions. Upon the free will of men and nations, therefore, devolves an obligation from natural moral law to establish such institutions. Let me now evolve this argument, at least in skeleton fashion.
We start from an empirical fact that has been remarked repeatedly of latethe fact of international solidarity. It is surely a fact that today the nations live in a state of most intimate association and organic interdependence. Their distinct lives are woven into one texture that may not be torn at any part without the whole texture being torn. The good of one is the good of all; and the good of all rebounds to the good of each. This is particularly true in the economic sphere; it is recognized today that any attempt at an autarchic national economic system would not only be suicidal but murderous. It is no less true in the political sphere: Hitler has proved that no foreign policy can be pursued uniquely in the national interest without embroiling the whole world in conflict.
Secondly we have to ask ourselves, how did this fact of international association and solidarity come into being? Here two answers are possible. One may say, first, that international association has come about purely and solely because the nations have freely decided to associate. This is the individualistic theory of contractualism.
Its first premise is that the individual states are absolutely prior to international society. Simply by their own free wills they determined to create international society and to bind themselves to membership in it for as long as they like. Freely they pledge their cooperation to one another, in whatever measure and for whatever time they choose. Their association is purely voluntary, unconditioned save by their own contracting wills, on which no limits may be placed save those that the contracting parties choose to assume. International society, therefore, is simply the result of a multilateral contract, over whose genesis, modification or dissolution the wills of the individual states are absolutely sovereign.2
This contractualist theory, therefore, regards international life simply as a mass of contractual relations (treaties, agreements, etc.), each of which is separately regulated by the interested parties in a manner suitable to their own sovereign choice. They are juridical relations, of course, but they are governed solely by the norms of commutative or contractual justice, and they stand under no higher control or supervision. Consistently, the advocates of this theory regard international law as having a purely statutory character; it is a purely voluntary law, in whose determination the sovereign wills of states are the sole agents; it exists solely because they have agreed it should exist, and it exists subject to no conditioning from other sources than their own sovereign wills.
Such is the contractualist theory. It is right inasmuch as it says that international association has been developed, and must always be developed, by the free action of men and nations within the process of history. It is also right inasmuch as it says that contractual agreements have had, and must always have, a place within the international juridical order. But it is shallow and false inasmuch as it attempts to found international society and the international juridical order ultimately and solely on acts of the free national will. As a matter of sheer fact, they are founded on an unescapable natural necessity that exists antecedently to any free choice, and that morally binds that free choice.
Take an analogy. Properly speaking, brothers and sisters do no create the system of relationships that we call brotherhood and sisterhood. The system itself is natural, an institution of nature. Once within it, boys and girls may freely choose to act as brothers and sisters, but when they do so they merely acknowledge a duty to be what they are by nature. Nor is it entirely up to them to decide just how they are to act as brother and sister; there are certain brotherly and sisterly ways of acting that are determined by nature itself. For the family is a natural institution; hence there is an order of pietya whole system of filial obligationsinherent in its structure.
The analogy is not perfect, but it has a point. The point is that international society is also, though analogously, a natural institution. Properly speaking, nations did not create the dynamic system of relationships that is the international community solely by sovereign acts of their national wills. This community has gradually come into being by a natural process, by the operation of a law resident in the very being of national states and manifested by the historic development of their organic interdependence. I mean the natural law of human sociability,3 which expresses itself as well on the international plane as on the domestic and national planes.
Nations were sociable before they decided to associate. They are by nature brothers and sisters, members of a family, dependent on one another, destined to help one another. They may refuse the obligations of family life, the obligations of mutual respect and mutual assistance; but they do not cease to be a family; they only become an unhappy family. They may freely will to cooperate, but when they do so, it is by a will to perform a dutya duty to themselves and to their welfare, which cannot be secured without cooperation; a duty to the family itself as a whole and to its common good. For the family exists by right of nature; it has a common good, and it can claim the cooperation of its members toward this common good.
This is what I imply in saying that international society is a natural society. Two important conclusions must be noted. First, it is not entirely up to the individual nations to decide by arbitrary act of their sovereign wills just how, or how far, or for how long they will cooperate. The ultimate norm of their cooperation is already fixed. It is not the self-interest of the individual nations, but the common good of the family of nations, the preservation of the order of justice on which the family of nations, as a natural institution, is built. Think again of domestic society, in which the ultimate norm of cooperation among brothers and sisters is the preservation, at whatever cost to personal pride and convenience, of the order of piety on which the family is built. The second conclusion is that it is not entirely up to the individual nations, simply by a manifestation and agreement of their sovereign wills, to determine the whole fundamental law that will give existence to the international community. On the contrary, the law of nature itself gives existence to the international community, and it is for the community as such, by its social will, acting through legitimate institutions, to give expression and clarification and effect to the natural law of nations by its enactment in positive statutes, or, in other words, to develop the ius gentium into a body of positive international law.
So much for the premise of our argumentthat international society is an institution of nature itselfand for two of the immediate conclusions from it. From this ground, we can see what is the primary act of national freedom, the initial exercise of national sovereignty, in relation to the international community. It is the free acceptance of the obligation to make the family of nations a good family. The first question put to free national wills is not whether to have an international society or not to have it. That question has been already settled by nature itself; international society is a social fact. The nations have the power to make it good or bad; but they also have the obligation to make it good.
The sole questions that remain are, when is international society good, and how shall it be made good?
The answer is that international society will be good when the order of justice inherent in its very constitution is secure, and when this security is achieved by means consonant with the freedom and dignity of man. Order and security, humanly achievedthis is the common good of the family of nations. Concretely, this means security through juridical institutions that will guarantee the protection of rights and the performance of dutiesif necessary, under the sanction of the employment of coercive force. The only properly human means of directing, controlling and harmonizing a multitude of free human wills, in the interests of a common good, is a system of juridical controlthe control of law, or at least of force employed under law. The law of our social human nature, therefore, demands the creation in the international community of such a human system of control. The juridical institutions that will exercise it are the object of a moral imperative.
I do not think it possible for anyone seriously to question the moral argument for juridical institutions as the means of international security. The objection raised is what is called a "practical" objection. These institutions, it is said, will not work.
To this I quickly give a practical answer: "Then no lasting peace is possible." And since this is the practical conclusion of the objection, I think that those so-called "practical" men who spread it abroad are doing a disservice to the cause of peace. They are shallow realists, prophets of despair. Because, if we despair of organizing an international order based on justice, we despair of the moral nature of man.4
There are only two ways to peace. The first is a system of powerpower unified in one nation, or power balanced between nations; in either case, power set above international law, because consecrated to the interests of individual nations. This system certainly has not worked, nor will it. The second is a system of lawinternational law set above all national power, and employing the power of nations, not primarily in their defense, but in defense of itself and of the order over which it stands guard. This system has to been tried. If it won't work, then we must resign ourselves to the barbarism of a third World War.
But this alternative is not only humanly unthinkable, but also divinely forbidden. The conclusion is that this system of international law above all national power must be made to work. The only question left is, how shall it be made to work?
First, it shall be made to work if the system is organized as soon as possible. The decision on this general international organization must be made, and the framework set up, with the least possible delay. And anything and anybody who would cause delay must be pushed aside resolutely, in the name of the common good of the family of nations.5
Secondly, this system shall be made to work if we do not expect miracles from it, and hence lose our faith in it when they are not immediately forthcoming. Let us be clear about one thing. The peace that will follow the war will not be an ideally just peace. It probably will be riddled with injustices. That is why I insisted that our support of international juridical institutions must be founded on a sense of moral imperative.
We are not obligated to the impossible. And, as a sheer matter of fact, with national passions blazing as they do, and with our international ignorance what it is, an ideally just peace in the proximate future would be miracle of divine grace that surely we have not deserved. But our moral imperative does extend to what is possible at the moment. Consequently, it extends, first, to the establishment, at least in provisional form, of juridical institutions that will embody and advance the moral and juridical process that is peace. This, I believe, is possible. Secondly, at every moment of the future, our moral imperative will oblige us to the persevering, intelligent effort to keep this machinery going, no matter how it creaks and groans, and to improve it in the light of experience. These things, too, are possible. Thirdly, our moral imperative will oblige us now and always not to give ear to unregenerate nationalists who will most surely, but most arbitrarily, claim to be the judges of the justice of the peace and who will oppose our support of a general international organization, because, they will say, it may fasten on the world an unjust peace. Our practical answer to them must be that there is no other way to redress the injustice that will undoubtedly occur, but our fundamental answer must be that we are morally obligated to this way.
Finally, international institutions will work steadily in the direction of a peace more and more just, if weall of usbear constantly in mind our own collective responsibility to make this work. Here is the critical point from which I started out and with which I conclude.
In the nature of things, there will never be in international society an authority as strong and as centralized as the authority that keeps order in the national state. International relations cannot be policed as thoroughly as the relations between individual citizens. In the nature of things, the processes of international life must be kept peaceful and orderly, not so much by minute regulation in terms of statutory law, as by the controlling power of the idea of justice itself.
Moreover, juridical institutions can only embody the idea of justice, and the origin of its processes. They cannot create their own soul; they cannot supply the vital energies needed for their own functioning. They depend for their very life upon the living moral energies in the soul of the international community. And the soul of the international community is the love of justice in the soul of its peoples. Only if this love of justice flames shall we have peace.
Moreover, this love of justice must not only flame inwardly, it must be made so articulate in public opinion that it will effectively sway the counsels of statesmen. Enduring peace cannot be founded in their often uncertain counsel, nor even on juridical institutions. Its sole foundation is the law, "whose observance, "Pius XII said, "must be inculcated and fostered by the public opinion of all national states with such a unanimity of youth and energy that no one may dare to doubt it." Enlightened public opinion sensitized to the demands of the law, and influencing political decisionsthis is the keystone in the arch of peace. And the responsibility for holding firm under every strain is yours and mine.
(1)Ed. Note: A sermon given at a Red Mass (a yearly liturgy for Catholic lawyers) in New York City. Originally published as "The Juridical Organization of the International Community," The New York Law Journal (October 9, 1944 ): 813-14. Also published as "World Order and Moral Law," Thought 19 (December 1944).
(2)Ed. Note: Two years later Murray had, in his changing religious freedom argument, separated out Continental from Anglo-American constitutionalism, finding the former as the main target of Papal wrath. With this distinction he could then reinterpret Leo XIII's rejection of any form of freedom of religion as applying to Continental, not American, forms of constitutionalism. A pivotal article in the development of this distinction was 1946a: "How Liberal Is Liberalism?."
(3)Ed.r Note: For a 1950 exposition of Murray's natural law theory, see 1950a: "The Natural Law," which became, with little editing, the concluding chapter, "The Doctrine Lives: The Eternal Return of the Natural Law," of WHTT, 295-336.
(4)Ed. Note: Murray did later "despair of organizing an international order based on justice," at least in the sweeping form suggested here (see the discussion of East/West relations on p. 170). He later, nonetheless, insisted that the U.S. could pursue an international policy consistent with the "dictates of reason," even in the face of a not fully effective international consensus or juridical organization.
(5)Ed. Note: In a 1955 critique of American Catholicism, Murray noted "[t]he hostility of many Catholics, and the indifference of many more, to the idea of an organized international community. More is involved than rational patient criticism of the institutions that presently embody the ideathe UN and its many agencies. Criticism of this kind is altogether proper. The puzzling thing is the opposition to the international idea itself." Murray cited this as one example of Catholic tendencies to deny Catholic responsibilities for the social order. He found the ideological grounding for this tendency in a misinterpretation of the Catholic claim that it is "the one true church" (1955d, "Special Catholic Challenges,"198).