Tradition and Prudence in Locke's Exceptions to Toleration Author(S): David J

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Tradition and Prudence in Locke's Exceptions to Toleration Author(s): David J. Lorenzo Source: American Journal of Political Science, Vol. 47, No. 2 (Apr., 2003), pp. 248-258 Published by: Midwest Political Science Association Stable URL: http://www.jstor.org/stable/3186136 Accessed: 20/07/2009 12:25

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http://www.jstor.org Tradition and Prudence in Locke's Exceptions to Toleration

DavidJ. LorenzoJamestown College

Why did Lockeexclude Catholicsand atheistsfrom toleration?Not, I contend, because he was trapped by his context, but becausehis prudential approachand practicaljudgmentsled him to traditionaltexts. I make this argumentfirstby outlining the connections among prudential exceptionality,practical judgments, and traditional texts. I then describe important continuitiesbetween conventional English understandings of the relationshipbetween state and religionand Locke'swritings on toleration,discuss Locke's conception of rights,and illustratehis use of prudential exceptionsand distinctions.I conclude by arguing that Locke'sproblems are relevant to assessingcontemporary liberal discussions of tolerationand the separation of state and religion that lean heavily on practicaljustifications.

Why did Locke exclude Catholics and atheists implies that had Locke lived in different circumstances he from toleration when he otherwise supported would have championed full toleration. Yetwe know that an extensive set of religious freedoms? While Locke developed his position before the Edict of Nantes the context of seventeenth-century England is important, was revoked in 1685, before the "Popish Plot" was man- I point to the mechanics of his discussion of toleration as ufactured in 1681, and despite his residence in Cleve, a the critical factor in the exceptions to toleration he made, city he characterized as peaceful, stable, and tolerant of particularlyin the way prudence and practical reasoning Catholics (Locke 1993a, 184). Moreover, contemporaries connect his conclusions with traditional judgments. I ar- like Henry Stubbe and William Penn advocated a much gue further that Locke'sproblems are still relevant to our broader toleration. Context alone therefore cannot ex- assessment of contemporary pragmatic justifications of plain his position. toleration and the separation of state and religion, and Other analysts point to aspects of Locke's discus- that our understanding of those problems should per- sion of toleration. Some emphasize his general reliance suade us to deploy textual justifications that are more on conventional views, such as Sandoz's (1972) argu- extensive than the practical judgments those discussions ment that Locke's stance flowed from the English sus- invoke.l picion of enthusiasm and disbelief. Ashcraft (1986, 498; 1993, 203) points to the pervasive seventeenth-century Explanations for Locke's limited toleration. Explana- English view of Catholics as loyal only to the pope, and tions for Locke'sfailure to embrace a universal toleration argues that Locke used this conventional understanding vary.Some analysts,such as Cranston (1991,81), Schochet to locate Catholics outside the "natural moral commu- (1992, 52), and Murphy (2001, 225), assign a determin- nity."Marshall (1994,365-6) and Harris (1998,72, 123-4, istic role to his experiences and contexts. In their view 179-82) also argue that Locke's discussion of Catholics events like the English Civil War, the "Popish Plot," the was influenced by convention as well as political contexts, papal bulls aimed at the English government, and the Re- while Dowretz (1990,66,119-20) points to Locke'stheism vocation of the Edict of Nantes decisively established the to account for his position on atheists. threat Catholics and atheists posed to toleration, order, Others emphasize Locke'spragmatic stance. Wootton and national security. Rawls (1999a, 92) more generally (1993, 109-10) refers to Locke's judgment that while

David J. Lorenzo is Associate Professor of Political Science, Jamestown College, Box 6075 College Lane, Jamestown, ND 58401 ([email protected]). My thanksto Dr. StephenReed, members of the JamestownCollege Political Theory Seminar,and the AJPSreviewers for their comments on draftsof this article. 'For Locke'scontemporary relevance, see Mendus (1989) and Waldron(1991). AmericanJournal of Political Science,Vol. 47, No. 2, April 2003, Pp. 248-258 ?2003 by the MidwestPolitical Science Association ISSN 0092-5853

248 TRADITIONAND PRUDENCEIN LOCKE'SEXCEPTIONS TO TOLERATION 249 usually ideas are more important than actions, the ideas freedom of heuristics. To reason prudently means creating inherent in Catholicism and atheism "were pernicious" exceptions to general rules, clearing a space for practical and therefore not to be tolerated. Kraynak(1980) argues judgment. When we apply this definition in the context of that Locke opted for a limited toleration for prudence rights, we see that the judgmental freedom prudence pro- sake rather than from a principled commitment to free- vides creates an exception to the general award of rights, dom of conscience, a stance that did not call on the mag- allowing the magistrate to use practical judgment at the istrate to tolerate views believed to threaten the state and citizen's expense. This procedure seems to fit nicely the order. And Mendus (1989, 26-7) maintains that Locke's process by which a political right is denied in a Lockean rationalist attack on Augustinian justifications for intol- scheme, particularly given the importance of the magis- erance, absent a positive defense of toleration, did not ap- trate's practical duties to protect order and security. But ply to justifications that referenced social order and state I suggest a further connection that runs through tradi- security. tion. The conservative side of prudence which Garverar- These latter explanations illuminate several impor- gues produces stability of judgments often manifests itself tant points: Locke's reliance on prudential or pragmatic in references to traditional texts from which derive both grounds, his concern with order, his failure to provide a the nature of the exception to the rule and the practical positive defense of toleration, and the conventional views judgment subsequently applied. Previously accepted cat- he endorsed. Yetthey fail to explain fully the relationships egories of exceptionality and conventional lines of obser- among those elements, and subsequently fail to appreci- vation provide stability to a rule by ensuring that neither ate all the dangers that prudential thinking and practical a particular case nor practical judgment destroys it. The judgments pose to toleration. In particular,while Mendus contours of this tendency become clearer when we think correctly holds that the combination of Locke'sfailure to about the nature of practical judgment and prudence. provide a positive defense of toleration and his emphasis First, consider prudence in its generally accepted form as on prudence cleared the way for order-based justifica- a cautious way of rendering decisions. Translatedinto the tions, she passes over the crucial role tradition plays in realm of rights, this understanding describes the initial that mix. In contrast, the explanation I provide empha- prudential exception to the general rule granting rights sizes the link between Locke'sprudential method and the as a rightly wary hesitation to confer those powers on conventional views he endorsed. It runs like this. some allegedly dangerous group of people. Traditionally Locke employed a natural-rights paradigm, main- identified dangers in turn are the most apparent. Second, taining that in the absence of a compelling reason for if the practical judgment at the heart of prudence con- us not enjoying a right, we hold that right if it existed in cerns itself with particularsand must lean on experience, the State of Nature and we did not give it up when we cre- as Aristotle (1962, Book VI, ch. 8, lines 10-20) holds, it ated government. We need not justify such political rights; naturally turns to traditional texts as taken for granted rather it is up to the magistrate to justify any attempt to interpretations of experience. My contention therefore is remove them. In this scheme rights are the rule and their that prudence will tend to utilize traditional texts initially refusal the exception. The advantages of this approach to identify some set of groups as unfit to enjoy a right, and are considerable, but its weakness is that nothing but the then follow through by using conventional appreciations naturalness of the right stands between the right as a rule of dangers to inform a practical judgment excepting per- and exceptions to the rule. Given that the Lockean con- manently the groups deemed particularly treacherous.2 ception of government makes the maintenance of order Prudence can make room for practical judgment with- and security a primary duty for the magistrate, there are a out repudiating a general rule awarding rights, while si- considerable number of reasons linked with that duty that multaneously and ironically penalizing the traditionally the magistrate can advance to justify removing a right. As marginalized. Mendus argues, without a positive justification of rights, I believe this explanation best accounts for Locke's justifications for removing rights tied to order and secu- stance on Catholics and atheists. I pursue this argument rity frees the magistrate selectively to exclude particular first by exploring the traditional components of Locke's groups from enjoying rights even if he does not expand understanding of toleration issues, and then by tracing his power over all groups. the way his prudential arguments use that understanding The link between prudence and tradition greatly in- to justify exceptions to toleration. creases the danger that the magistrate and analysts will follow this route. Garver that is 2 Hirschmann'sdiscussion of the "jeopardythesis" also suggeststhat (1987) argues prudence with the to the old and established a mode of moral that falls between the conser- prudencebegins attempt protect reasoning and emphasizesthe dangersmarginal groups pose. See Hirschmann vative orderliness of algorithmic methods and the radical (1991, 86-120). 250 DAVIDJ. LORENZO

Locke and Tradition light (Locke 1993c, 174). In a letter dated in 1659, two years previous to the date assigned the First Tract,he ex- mentioned the difficulties of Catholics, Much of the literature on Locke depicts him as a tran- plicitly tolerating that their beliefs them to sitional figure who mixed tradition and innovation in noting religious obligate obey a "master"other than the one whose inter- his philosophical, political, and religious writings (Grant, magistrate, ests are "backed with an of and ho- 1987; Wolterstorff, 1996; Spellman, 1997, 3). This schol- opinion infallibility liness" (Locke 1993f, 138). In the he backed arship, along with the initial observation that Locke ex- Essay away from his general condemnation of dissenters and instead cluded Catholics and atheists from toleration, suggests concentrated on atheists and Catholics. He insisted that significant qualifications are in order to Coffey's (2000, disbelief should not be tolerated, since belief in God is 55) and Schochet's (1992, 148) characterizations of the not a "speculative opinion" but rather the "foundation Letter ConcerningToleration as a radical document. Cof- of all morality" and the factor that differentiates humans fey maintains that Locke's rejection of the Augustinian from "the most dangerous sort of wild beasts."He treated justification of the political control of religion and his con- Catholics at them with sev- ception of the state are decisive and revolutionary.But this greater length, identifying eral positions them from toleration: their characterization describes Locke's relationship to only a disqualifying loyalty to the pope, their failure to embrace toleration, portion of the relevant conventional views addressing the and their civic unreliability (Locke 1993d, 188, 202-3). magistrate'spower over religion. Despite some admittedly But at bottom he embraced a traditional criterion important divergences, there are important specific con- single connecting Catholics and atheists (as well as antinomian tinuities between Locke and traditional English analysts Protestants) in the Tractsand Essay:the refusal to link the regarding the groups who may or should be denied tol- consequences of one's actions to an objective posthumous eration and the reasons why the magistrate may regulate judgment, a refusal generated by the atheist'sunbelief and religious affairs. We find that English traditionalists, as by the Catholic's belief in the pope's power to suspend or with Locke, identified Catholics and atheists as unworthy enforce God's at will. of toleration because their views on posthumous punish- judgment Locke identifies the same as in ment made them unreliable (Hull 1602; ElizabethI 1602; people problematic the Letter.4While he generallygrants Protestantdissenters Digges 1643; Charles, Earl of Derby 1669). And English toleration, he disqualified anyone who disavowed a belief pamphleteers referred to a range of arguments justifying in God and an afterlife,arguing that such a disavowal"dis- governmental regulation of religion that include numer- solves" all moral ties between the individual and ous references to the problems of order and security that society. He also denied toleration to those who, their member- Locke also emphasized. by ship in a particular church, "ipsofacto deliver themselves Since Coffey stressesthe radicalcharacter of the Letter up to the protection and service of a prince,"the and the difference between the early conservative Locke foreign to whom is "on of eternal fire." and the later radical Locke,3 I draw out these continu- fidelity guaranteed pain This reference is complicated, for while his illustration ities by comparing the Locke of the Letter to traditional of someone who should not to be tolerated reason of views and to the earlier Tractson Governmentand Essay by his allegiance to a foreign prince was a "Mohammetan" on Tolerationwith regard to these two subjects. (Locke 1993e, 426),5 he had previously used this language Those Excludedfrom Toleration to referto Catholics. He similarlydisqualified those whose beliefs "arecontrary to human society" or the moral rules The early Lockewas traditional in allowing the magistrate that are necessary to civil society, as well as those who did absolute discretion in matters of toleration and religion, not embrace toleration, those who taught that princes arguing that no religious matter allows the individual to could be removed for their differences in religion, and escape the magistrate's just authority. The laws of con- those who taught that "faithis not to be kept with heretics." science, he argued in the Second Tract, are subordinate This is language he had previously used to identify the to the laws of the magistrate in the universal legal hier- practical faults of Catholics that flow from their blind archy. In a blanket allusion to dissenters, he dismissed obedience to the Pope, though it may also encompass all those who rejected the magistrate'sreligious laws, ar- that their were the of their 4See Cranston (1991, 84), Harris (1998, 189), and Gough (1991, guing objections products 60). "weak minds" or anarchistic commitments to an inner 5WhileMatar ( 1999, 14-22) emphasizesthe extent of the toleration Lockewas preparedto extend Muslims,the Lettermakes a connec- 3Coffey (2000, 37); see also Dunn (1982, 28n), Harris (1998, pas- tion between Muslims and an externalpolitical dangerthat is not sim), and Kelley (1991, 126-7). made for Protestantnonconformists in general. TRADITIONAND PRUDENCEIN LOCKE'SEXCEPTIONS TO TOLERATION 251

TABLE1 Locke and TraditionalJustifications of the Magistrate'sPower Over Religion

TraditionalViews Locke Types of Arguments Justifying Magisterial Power 1600-1670 1670-1690 Tracts Essay Letter ProtectProtestantism/Religion 17 (11%) 15 (24%) / Interestsof Regime 84 (54%) 21 (33%) ProtectLaws 0 5 Protectfrom ForeignPowers 4 4 // / ProtectOrder 40 5 / / Promote Loyalty 21 3 ProtectMonarchy 10 0 Protect State 9 4 / Interestsof Populace 26 (17%) 26 (43%) Freedom 0 10/ V/ Property 4 2 / AgainstArbitrary Government 6 11 GeneralInterests 16 3 Origins 30 (19%) 0 Powerfrom God 14 0 V PowerNatural to Government 16 0 TotalArguments 157 62 6 3 5

radical Protestant dissenters who follow the inspiration play a significant role. In turn Catholics and atheists as of an inner light (Locke, 1993e, 424-6; 1993d, 138).6 people who refuse to acknowledge an objective relation- Despite the generality of its language, the Letter ship between their actions and posthumous judgment are clearly identifies atheists and Catholics as groups unde- portrayed as threats to social order and state security, for serving of toleration, and does so on the same traditional in this shared view, backed by references to the Gunpow- grounds as the Tractsand Essay-their attitude toward der Plot and the Civil War, that refusal allows people to posthumous judgment. As Schochet argues, toleration for escape the noncoercive bonds the magistrate generally Protestants alone seems to have satisfied Locke.7 uses to keep order and safeguard security and forces the magistrate to exercise his coercive powers over them. Locke is at his most Arguments Justifying the Power of the eclectic in the Tracts,provid- several Magistrate over Religious Affairs ing justifications for the magistrate's regulation of religion. In the First Tract he supplied the traditional As demonstrated by the sample of arguments summa- Augustinian argument, asserting that we need "outward rized in Table 1,8 Locke'sjustifications of the magistrate's fences to secure the more substantialparts of religion."He power over religious affairs in both his earlier and later also referredto order,arguing that we requireregulation to work overlapped significantly with traditional justifica- restrain people from "destroy[ing] all that are not of their tions. In traditional justifications, the Tracts,the Essay, profession." Indulgence for those of "tender conscience" and the Letter,threats to social order and state security paved the way for the Civil War. Finally he referenced state security, arguing that religious claims often served 6Also see Marshall (1994, 53, 365). as a "cloak"for rebellion and sedition (Locke 1993b, 143- 7SeeSchochet (1992,164). Cranston(1991) and Gough (1991, 74) 5). The Second Tract provided additional justifications. differfrom Schochet on whetherthe post-revolution toleration acts Locke the to re- satisfiedLocke. explicitly permitted magistrate regulate ligious affairs and promulgate laws regarding all matters 8Thepre-1670 drawfrom 48 sources to the arguments friendly "indifferent,"including those pertaining to and Stuarts,while the 1670-1690arguments draw from 26 sourcesthat worship eitheranticipated, or justified, the Glorious Revolution. All sources ceremony. "[H]ow close," he observed, "the affinity and arelocated in the HuntingtonLibrary. association is between all indifferent things, whether they 252 DAVIDJ. LORENZO concern religious ceremonies or secular customs" (Locke guments. Indeed, several points suggest that Locke was in 1993c, 176). He again argued that religious freedom allows closer company with the supporters of the Stuart regime passion and zeal to create discord and sedition and refer- in his justification of state regulation of religious matters enced the need to secure "dignity,decency and order."He for purposes of order and security than to many support- made a variation of the Augustinian argument, holding ers of the religious establishment set up by the Glorious that the magistratemay regulatereligion to preserve"well- Revolution.9Like Locke, 39 of 48 supporters of regulation loved national customs" that allow people more easily to who published before 1670 cited problems of order,while embrace the faith. But more generallyhe argued that God 26 cited security. Considerably fewer writers referred to has given the magistrate power over all religious affairs these arguments in the post-1670s sample (five of 26 for because that power is essential to the authority needed to order, six of 26 for security). preserve humankind (Locke 1993c, 153, 155-7). Locke's linkages of Catholics to disloyalty and athe- Locke revertedto a reduced set of justifications in the ists to disorder were also traditional. Thirteen of the 21 Essayby concentrating on order and security. He argued arguments in the pre-1670s sample that referenced loy- variously that the magistrate may regulate religious opin- alty tied the problem to Catholics, as did six of the nine ions when they "tendto the disturbanceof the state,""tend that cited threats to the state, and the five that referenced to destabilize the government,"or even "causegreater in- threats from foreign governments. Likewisein arguments convenience than advantages to the community."He also leading up to and immediately following the Glorious asserted the duty of the magistrateto move against people Revolution, three of four writers who cited threats from who hold opinions "destructiveof human society."Signif- foreign powers, the three who cited problems of loyalty, icantly he summed up by asserting that prudence should and the four who cited the need to protect the state linked guide the magistrate on all matters "indifferent" (Locke these problems with Catholicism. Typical of all these ar- 1993d, 191-3, 197, 201). guments is John Gordon's early warning to James I that The Letter, like the Essay, concentrated mostly on justifications related to order and the security of the state, "So as you that no sooner subject your selfe unto while adding intolerance (itself a category Protestantstra- their [the Popes'] lawes, but upon the first dislike, ditionally used to disqualify Catholics) and threats to for- they will absolve and free your subjects from their merly monastic property. In general it held the magistrate oath of obedience due unto their true and lawfull need not tolerate actions in the religious realm that are King, they will depose you at their pleasures, and unlawful in the secular. Since Locke'sexample was infan- give your crownes to whom they like..." (Gordon ticide, the implication is that such actions are related to 1603, 46-7) order in general. More particularlyhe repeated his asser- tion from the Essaythat the magistratehas a duty to forbid Locke'slinkage of disorder with atheists was equally "opinions contrary to human society."For reasons of na- traditional, reflecting more closely the arguments sup- tional security he also gave the magistrate authority over porters of the Stuart establishment utilized than those the people who follow foreign religious leaders. Finallyhe in- backers of the Revolution deployed. None of the five au- voked the need to safeguard social and political order in thors in the sample taken from the period between 1670 general by giving the magistrate the power to rid the state and 1690 who cited order referredto the problem of athe- of people who, lacking a belief in God, cannot be trusted ism. They instead referredto problems of Protestant dis- to hold to promises, oaths, and covenants (Locke 1993e, senters. However, 14 of the 39 from the earliersample did. 414-6). Thus while Locke rejected his earlier contention Locke'sargument was eerily similar to those of one Daniel that the magistrate's duty to preserve humankind gives Scargillin 1669, who disavowed his adherence to atheism him full power over all affairs, he continued selectively to on the grounds that use that duty to justify significant amounts of religious regulation by alluding to the perceived threats particular "all persons so principled [as Hobbists and athe- religious views pose to the state and society. ists] ought to be held by all mankinde as the most Referringto the chart above, we also see that despite dangerous and declared enemies of the common his abandonment of Augustinian justifications, Locke's faith amongst men. That they are not to be trusted position on this subject remained traditional in impor- upon any obligation of their faith, or pretensions tant respects, as his remaining justifications overlapped with several traditional The Letter important arguments. (2001, 11-2, 151-2, 211, 217) that conventional found in 9Murphy argues invoked five of the 13 traditional justifications anti-tolerationist arguments invoked security and order, but does the sample, accounting for 37% of thetotal traditional ar- not link this observationto Locke'suse of those arguments. TRADITIONAND PRUDENCEIN LOCKE'SEXCEPTIONS TO TOLERATION 253

to piety, loyalty, or common honesty.... but, that This characteristic brings "inconveniences" in the form by those principles, destructive to all society and of our inability mentally to replicate moral ideas exactly commerce amongst men, they may and do de- over time, and in the difficulties of holding in our mind lude and defeat all Oaths and Protestations, all all relationships such that we may with confidence make faith given to God or man." (Scargill 1669, 5-6) significant comparisons among ideas. Finally he argued that we have a weakness for power, wealth, public ap- Thus Locke retained customary, marginalizing de- plause, and self-esteem that keeps many of us in a kind of scriptions and evaluations of Catholics and atheists, "Egyptianbondage."1 and adopted the traditional solution-governmental In addition to problems with attaining a complete control-to the "problems"they posed precisely because understanding of moral principles, Grant (1987, 202-3) he adopted parts of the traditional texts that painted those points to the necessaryand limiting role experience played people as dangerous. Note also that the traditional prob- in Locke's moral framework. She notes that Locke was lems he identified with the presence of Catholics and athe- careful to argue that experience must inform the applica- ists are mostly connected with the magistrate's duty to tion of a "true"outcome of a mixed mode of reasoning. preserve mankind, a duty that Locke asserts is central to In her view, Locke believed that rationality as a faculty the state's function (Kelly 1991, 131-3). exercised to its fullest must apprehend not only logical relationships, but also the characterof the world, individ- Principles and Prudence uals' relationshipswith one another, and their relationship with God, otherwise God created humans imperfectly by endowing them with a superfluous capacity of observa- If Locke retained important traditional views regarding tion. We know by experience that the application of a the magistrate's role in religious affairs, how did those rule is correct by the pain or pleasure it brings, just as we views find their way into his discussion of religious free- know that a rule is correct in the abstract by our discern- dom? As I outlined above, I believe it was through pruden- ment of logical relationships among ideas. Locke, Grant tial limitations on toleration rights that were unopposed argues, saw the universe as seamlessly rational, not only by any positive defense. For Locke, prudence qualifies, or because knowledge of simple modes reinforces that of makes exceptions to, the imputation of rights by high- mixed modes, but also because moral rules in practical the importance of particular,traditional distinc- lighting both of tions.10 settings requires types knowledge. If this is the case, then it appears that operational To understand how his views on this subject were principles must include the uncertainty that Locke argued informed by distinctions and exceptions, we turn first to characterizes the experiential mode of knowing, an un- the limitations on moral generalizations he recognized. certainty that qualifies those principles (Grant 1987,204). limitations on Locke'sGeneralizations In the Essayon Human Understanding(Book IV, Ch. XX) Locke emphasized the problems of creating operational Locke repeatedly referred to morality as a subject we can principles and outlined a variety of ways in which we may "know" with certainty (Locke 1959, Book III, Ch. XI; be mistaken in our understanding of them. His discussion Book IV, Chs. III and XII). By understanding morality in of "WrongAssent, or Error"described the epistemologi- mixed modes (that is, by understanding the abstract rela- cal problems one encounters when following principles, tionships among ideas, both simple and complex), Locke including doubts concerning their validity, the role of tra- argued we derive universally applicable rules that tran- dition and authority, and contamination by "passionsand scend contextual limitations in our exercise of morality. inclinations."As in his earlier discussion of the problems However, he also highlighted the difficulties and obsta- of adhering to man'slaws and public opinion (Book II, Ch. cles we face in formulating and following moral gener- XXVIII), he argued that all principles should be subject alizations. First he pointed to our inability to represent to continuous experiential analysis. moral ideas outside our minds in ways that are precisely Locke therefore seems to have held that even when true to their mental contours and that are capable of ex- we discover a general principle of scientific morality and act replication over time. Second, he discussed the com- of moral in that are found in bundles. plexity ideas, they "Locke (1959, Book IV,Ch. III, 209-12). On the Reasonablenessof Christianity(Section 243, 176-81 is similarlyambivalent regarding our ability rationallyto apprehenda scientific morality.For con- l?Fordifferent views of the interplaybetween generalizationsand trastingviews on Locke'sbelief in the attainabilityof a science of distinctions in Locke'sdiscussion, see Ashcraft (1993, 207) and ethics, see Fraser'sdiscussion in Locke (1959), and Grant (1987, Coffey (2000, 56-7, 186). 23-6). 254 DAVIDJ. LORENZO unite it with experience, the resulting synthetic general- government cannot rationally justify a policy forbidding ization must be continually subjected to the test of experi- us from acting on our remaining natural liberty. ence. To operate in the world in a way that allows humans Lockean political rights therefore have two impor- to fulfill their duty to justify rationally their every judg- tant characteristics. One, they are negatively rather than ment, "operational principles" sometimes lose the char- positively justified in that their substance is derived from acter of generalizations. Our acceptance and application powers left over after we grant government its necessary of a principle must be justified by (or is open to criticism powers. Second political rights, like all rights, are circum- by) experientialjudgments. The only rationallydefensible scribed by the duty to preservemankind that all, including generalizations under this procedure are those limited by governments, hold. Put together these characteristicsact the stuff that informs experiential judgments: contexts. as important qualifications. All political rights in practice Principles may apply differently in different contexts or are limited by government'sability to justify their contrac- be inapplicable in some cases. Contexts can createdistinc- tion or refusal by referenceto contextual and experiential tions limiting the reach of principles and generalizations, interpretations of its duty. Insofar then as the principles thereby creating exceptions to them. While the limitations and generalizationsthat elucidate political rights can limit he recognized in the Essayon Human Understandinghave government's power by referencing consent and limited to do with our ability rationally to apprehend the correct government, contexts and interpretations of experience set of principles, Locke's discussion of toleration identi- formulated into practical judgments likewise can qualify fied another important limitation, one that is connected the application of those principles and generalizations, with experience: prudence. usually by referencing relevant distinctions.'4 We see the first characteristicthroughout Locke'sdis- Prudence and Rights cussion of toleration. Nowhere does he supply a generalized, positive justification of toleration on the part of the As the product of a generalization limiting the power of state. Instead, by criticizing a variety of traditional justi- the magistrate, toleration is a political right for Locke.12 fications for the magistrate'scomplete control of religious We must therefore understand Locke's conception of affairs in the Letter,he provided a justification of to understand the connection between negative rights prudence a limited toleration.'5 While his delineation of the limits and toleration in his scheme. of government was effective in replying to people who In The Second Treatise (e.g., Ch. II., paragraph 8), justified the magistrate's power over all religious affairs rights are defined as things that someone may lawfully based on God's grant of power to the magistrate, popular do, in reference either to Natural Law or to human law. consent, or salvation, as a justificatory strategy,it did not These powers in turn are limited by the general rule that and was not meant to exhaust the list of possible reasons we should preserve others and ourselves. Under Natural why a magistrate could regulate religious affairs and deny Lawin the State of Nature we all enjoy a complete freedom toleration by referencing distinctive exceptions. from subjection and exercise all rights. Under human law, Locke even more explicitly embraced the second duly-authorized magistratesexercise the rights we give up characteristic when in the Essay he invoked prudential to government, while the rights of ordinary citizens are grounds to allow the magistrate to grant a selective toler- set by the limits on the powers of the magistrate that flow ation. The reasoning the magistrate uses to fulfill his duty from the terms of our consent, Natural Law,and the tasks to extend toleration while maintaining order and secu- of government. These rights of citizens are political rights, rity, Locke argued, is prudential as well as principled, and and may be defined as the circumstances of our natural prudence is linked with particulars, not universals: existence (freedom and equality under Natural Law) that remain after Natural Law government correctly applies And thus far of toleration as it concerns the mag- not and properly exercises its rights.13They exist because istrate's duty. Having showed what he is in con- it is necessarythat we be free in order to fulfill some aspect science bound to do, it will be not be amiss to or in order that we exercise some of our being, might consider a little what he ought to do in prudence. crucial component of our inherent capacities,but because But because the duties of men are contained in general established rules but their prudence is circumstances to themselves 12Here I disagree with Mendus (1989, 39), Kelly (1991, 144), and regulatedby relating Ashcraft (1923, 205-6) and agree with Waldron (1991, 112) and Schochet (1992, 151). 4On this topic see Kelly(1991, 144) and Schochet (1992, 162). 13Locke (1993g, Ch. IX, paragraphs 130-1), and Gough (1991, 67- 15Locke(1993e, 394-6);Mendus (1989,26-7);Waldron (1991,112- 8). 8); Walker(1996, 205), and Marshall(1994, 66). TRADITIONAND PRUDENCEIN LOCKE'SEXCEPTIONS TO TOLERATION 255

in particular,it will be necessary in showing how in the latter were not only Catholics and atheists, but also much toleration is the magistrate's interest to Protestant dissenters, who, as he had held in the Tracts, come to particulars. (Locke 1993d, 201) had been disorderly and threats to the security of the state during the Civil War (Locke 1993b, 153). If they were to be While Lockeinitiated this understanding of toleration tolerated more distinctions had to be deployed in order to in the Essay, he also employed it in the Letter.Exceptions keep Catholics and atheists under the magistrate'sthumb. and distinctions importantly inform the portions of both Locke achieved this by emphasizing the traditional links the Essayand Letterthat developed Locke'sunderstanding between the latter groups and disorder and disloyalty as of the scope of toleration and the extent of the magistrate's he applied practical reasoning to the question. powers. In both places he carefully distinguished among The first distinction relates to Wootton's observation beliefs and spheres of activity based upon an experien- that Locke failed to distinguish alwaysbetween belief and tial understanding of their relationship to governmental action. As Wootton notes, Locke sometimes argued that functions. In the Essayhe marked the difference between action, not belief, should be the basis for government actions and interests that do not affect the state or others regulation. This was his main argument for assuming the and those that do; the difference between things destruc- loyalty and orderliness of ordinary Protestant Dissenters. tive of the foundation of society and those that are not; Only their actions count; their theology matters little. At and the difference between things indifferent morally, but least theoretically this position applied to Catholics given which are connected with political expediency, and those his conclusion that a belief in transubstantiationwas irrel- that are not so connected (Locke 1993d, 187, 201). Sim- evant to the magistrate.His emphasis here was on concrete ilarly in the Letter he distinguished between the internal actions, since actions alone impact the material interests and the external, and between things generally allowed by governments have a duty to protect. Yet he abandoned the magistrate and those generally not allowed. He also this position when discussing atheists' beliefs regarding differentiated between dissenters who are Protestant and the afterlife, and Catholics' beliefs in the pope's author- tolerant and those who are not. ity over the Papal States, excommunication, and posthu- These experientially informed distinctions led him in mous punishment. It need not be proved that atheists the Letterto argue that because religious beliefs are inter- and Catholics acted on these beliefs in the ways Locke nal and generallydo not affect the state or the rights of oth- assumed. As tradition held, belief itself disqualified both ers, the magistrate is not justified in regulating them, thus groups from toleration.17 justifying toleration by referenceto natural rights and the The second distinction involved his analysis of the al- principle of limited government.16 But he also held that leged dangers particular groups posed to the state. Locke the magistrate is justified in denying anyone the right to based his argument for tolerating Protestantdissenters on toleration when religious beliefs touch on order, secu- an observation and a generalization. The observation was rity, property, and toleration itself. Contrary therefore to that actions embedded in the religious services of Protes- Ashcraft'sanalysis, Locke did allow the magistrate to sub- tant dissenters (preaching, the consumption of bread and ject toleration to the experientialtest of political prudence. wine) were lawful in secular settings. The generalization It was Locke'sassertion that an analysis of the morals and was that we should assume the orderliness of ordinary politics of Catholics and atheists would show that those Protestant dissenters as a group while treating separately groups pose a danger to the order and security of a Protes- the actions of the unruly or seditious few. He concluded tant state that led him to permit the magistrate to carve that Protestant dissenters should generally enjoy tolera- exceptions out of the general boundary separating the tion, and if sedition did raise its head in dissenters' meet- public and private that otherwise nullified the magistrate's ings the magistrate should only punish instances of that claim to power in the realm of religion. In turn, tradition activity, not dissent itself.'8 Thus Locke separated the informed the experiential distinctions he employed. particular seditious few from the bulk of the dissenting Protestant population as a way of incorporating the latter under the of toleration without the Distinctions and Exceptions in Practice wing denying magistrate the right to protect law and order.In this argument he Locke created prudential exceptions to the rule of tolera- presented a progressive response to those who pointed to tion when he differentiated between ordinary people and the potentially disorderly and disloyal. Included initially '7Lockeseems to have carriedover his position on Catholicsfrom the Essayon Toleration(1993d, 197). 6Locke(1993e, 394,396); also Mendus (1989,41) and Kelly(1991, 18Locke (1993e, 430). As indicated earlier,this toleration did not 142). seem to extend to antinomian Protestantdissenters. 256 DAVIDJ. LORENZO the "fact"that Protestant dissenters had acted seditiously and harmlessness to religious beliefs that made tolera- in the past and fomented the disorders that culminated tion rationally possible. While he was awarethat tradition in the Civil War. Instead of legislating by religious cat- distorts our reason, he thought that employing practical egory he extended toleration to all ordinary Protestant judgments would allow him to sidestep that problem, as he dissenters and justified punishing only those who actu- did when he considered the case of Protestant dissenters. ally were disorderly. But the construction of the experience he used to make We look in vain for this argument when it comes those judgments was deeply indebted to tradition, caus- to Catholics and atheists. Locke put aside his observa- ing his justification of toleration to exclude Catholics and tion that religious exercises and beliefs in themselves have atheists by reason of their traditional marginalization. no political ramifications and argued that no Catholic would be loyal and no atheist trustworthy in his oaths and promises. We find no generalized toleration here; instead, Conclusion when we look beyond the code words, the traditional religious categoriesof "Catholic"and "atheist"became the I argue that the problems with Locke's position identi- basis upon which Locke'smagistrate might use his coer- fied here are particularlyrelevant to some contemporary cive power rather than the actions of those who disturb approaches to the problems of toleration and the sepa- the peace or endanger the state. ration of state and religion. Those approaches emphasize The final distinction involved Locke's invocation of experience and practicaljudgments in justifications while human nature and factual observations. In contrast with disregardingtheir connection with tradition. his earlier position in the Tracts,he argued that while For example, Murphy depicts liberal toleration as a Protestant dissenters did have a history of disorderliness, minimal concept that we should justify by recourse to their disorder stemmed from their experiences ratherthan pragmatic arguments. In doing so he draws upon a history from their dissent. To use the terminology of the Essay of toleration debates to illustrate the usefulness and lim- on Human Understanding,Locke gave his "assent"to the itations of a Hobbesian politics of toleration. Toleration, proposition that Protestant dissenters would remain or- he argues, came about as a result of practical reasoning, derly if tolerated, based on the probable truth of an obser- "painful compromises" and "hard-headed judgments," vation. The observation was that disturbances were nat- rather than a "progressive flourishing of a preordained ural reactions to the fact that dissenters were "strippedof progress."His position is summed up by his approving the goods which they have got by their honest industry" reference to Larmore'sand Shklar'slimited, political, and and "deliveredup for a prey to other men's violence and pragmatic conception of liberalism. In his view we best rapine" (Locke 1993e, 432). As Farr (1987, 51-72) would understand and justify toleration by referenceto practical put it, Locke used historical evidence and anthropologi- judgments linked to the protection of conscience rather cal views to reject the traditional hypothesis (Protestant than by expanding the concept to justify something more dissenters are always disorderly) in favor of a new one than the modus vivendi state.20 (Protestant dissenters are disorderly only when they are Rawls(1993a, 1993b) meanwhile depicts toleration as not tolerated) because the new hypothesis shed more light the core of a contemporary liberal consensus on the desir- on the social situation than did the earlier.Yet Locke de- ability of multiple conceptions of the good, a consensus parted from this intellectual course when he withheld that does not depend upon controversialreferences to ba- his assent to the proposition that Catholics and atheists sic moral positions. Despite their differences on the nature would remain loyal and orderly if tolerated. While Locke of toleration and the desirable state, this understanding explained away the past misdemeanors of Protestant dis- leads Rawls to rely upon many of the same arguments as senters he failed to excuse Catholics and atheists despite Murphy when he discusses religious freedom. In particu- decades of punitive English laws. He instead privileged lar Rawls wishes to model justification of separation and the traditional conclusions drawn from the Gunpowder toleration upon the experiential, historical elements of Plot and the Civil War.19 Madison's "Memorial and Remonstrance,"arguing that For Locke, then, the dangers atheists and Catholics such arguments alone can appeal to and are available to posed to communities were facts of our existence that everyone. justified prudentially limiting the imputation of privacy 20Murphy(2001,283-8, especially287); see also Yack(1996). While Murphyemphasizes the variety of argumentshistorically used to 19Locke (1993e, 409; 1959, Book II, Ch. XXVIII). Also see justifytoleration, he does so to defend a sphereof public reasoning Spellman(1997, 46) and Wootton (1993, 109). For a contraryview that would include religiousarguments, not to establishthe impor- see Murphy(2001, 211-7). tance of texts to politicaljustifications of tolerationand separation. TRADITIONAND PRUDENCEIN LOCKE'SEXCEPTIONS TO TOLERATION 257

But as we have seen here, to privilege experience, his- formed by a liberal anthropology, a liberal philosophy of tory, and practical reasoning in this manner is problem- history, and a liberal understanding of biography. These atic, particularly in the absence of other, positive justifi- texts should root in an explicit description of human na- cations. One could argue that using primarily pragmatic ture Locke's observations that spirituality is necessary to arguments to justify toleration runs the same risk as justi- a fully human life but dangerous when mixed with state fying toleration solely on natural rights grounds. Without affairs.More, we should createhistorical and biographical thicker justifications it is easy to construct a practical case texts highlighting a liberal understanding of the rewards for denying toleration. Moreover, the historical, experi- of spirituality,the dangers of state involvement in spiritual ential, practical, and pragmatic judgments that we would matters, and the historical development of limited, secular rely upon are often informed by traditional texts. If we governments. Only by employing such diverse, extended, wish to avoid drawing toleration in Murphy's terms as a and textual justifications of toleration and separation, I "static"concept, I argue that we must recognize the im- argue, will we address the dangers posed by traditional, portant, hidden role traditional texts may play in practical, practical, and marginalizing judgments.22 experiential judgments, as well as the need to create positive textual justifications of rights to counter those texts' tendency to drag backwards or freeze our understanding References of toleration and separation. The conclusions I draw flow from those observa- Aristotle, 1962. NicomacheanEthics. Indianapolis:Bobbs- Merrill. tions. I argue that we must not consider the conceptu- Ashcraft,R. 1993."Religion and Lockean Natural Rights." In Re- alization and justification of toleration and separation in ligious Diversityand Human Rights,ed. I. Bloom, J.P. Martin, terms. Its blindness to role texts purely practical the play andW. L. Proudfoot.New York:Columbia University Press, in interpreting experience has caused the pragmatic ap- 195-212. proach historically to favor the limitation of toleration Ashcraft, R. 1986. RevolutionaryPolitics and Locke's"Two Trea- and to rationalize the mixture of state and religion in al- tiseson Government."Princeton: Princeton University Press. most equal measures to its justification of toleration and Audi, R. 1989. "TheSeparation of Churchand Stateand the In its we must as well Obligations of Citizenship." Philosophy and Public Affairs separation. place provide positive 18(3):259-96. as if we concede that practical justifications, particularly Audi, R. 2000. Commitment and SecularReason. New considerations allow under Religious prudential may governments, York:Cambridge University Press. to limit the freedom to act on exceptional circumstances, Charles, Earl of Derby. 1669. The ProtestantReligion Is a Sure religious beliefs.21Affirmations of toleration and separa- Foundation and Principle of a True Christian, and a Good tion should first ground both free expression rights and Subject.London. separation principles in arguments holding that without Coffey, J. 2000. Persecutionand Tolerationin ProtestantEngland 1558-1669.New York: the rights to be free of government interference to wor- Longman. Cranston,M. 1991."John Locke and the Casefor Toleration." ship, and to be free of state imposed religious doctrines to In John Locke:A Letter on Tolerationin Focus, ed. J. Horton choose our we are dimin- spiritual orientation, seriously and S. Mendus.New York:Routledge, 78-97. ished as Mill's defense of persons. (1869) religious liberty Digges, Dudley. 1643. The Unlawfulness of SubjectsTaking up is one example of such an account, though I do not believe Armes against their Soveraigne,in what case soever. London. we should adopt his developmental scheme. Second, justi- Dowretz, S. 1990. The Unvarnished Doctrine: Locke, Liberal- fications should establish that those rights and principles ism and the American Revolution.Durham: Duke University Press. are crucial to all persons and are relevant in all circum- 1982. The Political JohnLocke: An Historical stances absent an immediate and particular threat to the Dunn, J. Thoughtof Account the "TwoTreatises Government." of others. In such we embrace oftheArgument of of rights creating justifications New York:Cambridge University Press. the conclusion that are not purely practical justifications Dworkin, R. 1978. TakingRightsSeriously. Cambridge: Harvard as useful as those mixed with positive arguments. UniversityPress. Finally I argue that we should not confine ourselves ElizabethI, 1602. "A Proclamationfor proceedingagainst Je- within a liberalism conceptualized as a "philosophy of suitesand SecularPriestes, their Receivers,Relieverers, and Maintainers."London. politics, not a philosophy of man" when we create justifications. Rather we should appeal explicitly to texts in- 22Contemporaryliberals usually do notoffer such extensive, textual justifications.See Dworkin(1978, 199, 272-8) and Audi (1989, 21Forexample, see Reynoldsv. U.S., 1878;Prince v. Massachusetts, 2000).Waldron (1991) and Mendus (1989) do provide materials for 1944; Braunfieldv. Brown, 1961. Waldron (1991, 113-4) touches thickerjustifications. Nederman (1994) provides a relativelythick, on thisproblem. nonliberaljustification. 258 DAVIDJ. LORENZO

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