on the arguments of Locke and Proast about religious tolerance

Locke's first argument, on p. 26 of the letter, is that the magistrate has not been given the legal power to compel religion. Locke states without argument that God has granted no such right to the magistrate, and then argues strongly his main social contractarian point.

Locke tells us that no person would willingly cede to the state the care of his own soul, thus blindly to leave it to the choice of another. Proast replies on p. 22 of the argument of the letter concerning toleration briefly considered and answered that a rational person would note his own incapacity to fairly analyze religious questions and willingly cede that right to the state. if Proast is right, his refutation stands. but, Locke should reply, we might easily question whether we all have such an incapacity to that degree.

so consider an analogous case, by which Locke can be forced to give up this argument. in the early united states, the government regulated the militia (which meant roughly everyone able to serve in a war) in part by requiring them to procure and train on certain weapons. Locke would surely agree that this is a legitimate exercise of state power. but couldn't someone say the care of my life is very, very important. i would never cede the selection of a weapon to defend myself blindly to the choice of another!

so, given a social contractarian view, Locke must more elaborately defend the particular archaeo-choices made by the architects of the contract. he does not do this in the letter. in fact, given that he and Proast are rationally disagreeing about just this point, should we not be able to raise the meta-argument that just so, the archaeo-choosers would also disagree? as further evidence of this conflict, note that the rational choosers of Hobbes and Spinoza would both grant to the magistrate the power to make decisions about religious practice.

Locke's second argument is that religion is an inward thing and not an outward thing, and that compelled observance would thus not avail the citizen anything. the first objection to be raised is that this assumes one particular attitude about religion, derived from the protestant brand of christianity. other religions need not, and in fact, do not conform. ironically, modern anglicanism has itself decidedly left that camp!

a second objection is that by compelling obedience you might not change the minds of the present generation, but you will radically sway the pendulum for all future generations. the state can simply say it has a more long term view. Plato's emphasis is consistently on education of the young, and would certainly be happy with this result.

Proast's objection takes for granted the protestant assumptions of Locke's and still finds a role for force with respect to the present generation. he argues (p. 26f of the argument) that the state's force is being used not directly to convert, but to force citizens to consider with due attention the arguments and proofs advance on behalf of the true religion.

from his weak second argument, Locke moves to his third and strongest. he notes the diversity of religions and tells us that if it is legitimate for the magistrate to enforce anglicanism in england, then it is legitimate for a heathen magistrate to enforce a heathen religion. given the diversity of religion, then, whichever is right, most people would be damned to perdition through the unluck of being born in the wrong place.

Proast argues that Locke has incorrectly generalized the case. from english magistrates may enforce the true religion we should not generalize the last word, but only the first, thus, heathen magistrates may enforce the true religion. There is no way to decide which is the correct generalization. as the advocate of force, Proast is entitled to lay the argument upon whatever footing he desires. his maxim is any magistrate may enforce the true religion and that maxim simply does not imply the one that Locke wishes to attack.

there is a further hidden premise to Locke's third argument here. granted that only one religion can be true, it does not therefore follow that only those who know that religion to be true can be saved. (leave aside for the moment the fact that salvation is not a meaningful category at all in many religions.) so even if Locke's generalization is correct, it might be that the true religion saves even some of those who do not believe it. in that case, the supposedly disastrous consequences Locke points to do not in fact obtain. note in this connection that in the reason-regime of Plato everyone does benefit by being ruled by the reason of the few even if they do not learn to follow the reasoning themselves.

after his three arguments, Locke proceeds to analyze what the state would look like under a regime of toleration, answering along the way various practical questions. he quite adequately shows that toleration is workable, and Proast has no complaint to make. he addresses the obligations of the state, the church, private persons, and hierarchs.

Locke makes several interesting straw man arguments when he discusses the obligations of the magistrate under a regime of toleration. for example, on p. 36 he attacks the notion that the magistrate has some special ability to reach the truth in religious matters. but surely nobody really believes this; nor is such a premise required to support Proast's position. nobody would argue that the magistrate is somehow invested with a mysterious power for military perfection, and yet we do entrust the defense of the state to the magistrate. not even Hobbes argues that the magistrate is correct, merely to be obeyed.

locke attacks (p. 35f) some of the disagreements about the ceremonial accouterments of various religious factions of his day: buskins, surplices, mitres, etc. but nobody on either side actually thought these items important in themselves—they were potent symbols of allegiance and opinion, and the fights about them were fights about issues of allegiance and opinion.

Locke declaims against all paternalistic legislation on p. 34, but there is no basis for this in his contractarian theory. Proast's objection to Locke's first argument is to be suitably repeated here. moreover, Locke objects to taking preferences among religions as if the state were to force the use of roman physicians only. but catholics did not ascribe mysterious force to the city of rome (witness the avignon papacy) but rather to a particular institution there. just so, medicare in the united states refuses to pay for treatments that have not met the government's standards of worthiness.

amidst more discussion of the practical questions of how to run a tolerant regime, Locke drops in one final argument, this time to show that there are limits to his toleration. he excludes from toleration those religions that claim the right to depose magistrates, those that argue against the toleration of other religions by the state, those religions that ipso facto involve subjugation to a foreign prince, and those who deny the being of a God.

considering the first three categories, what do we do if one of these religions is in fact the true religion? suppose unam sanctam is right? Locke is here doing exactly what he claims it is not possible to do: decide amongst christian religions on the basis of reason. if unam sanctam is right, then england has no right to its own government, period, and the whole social contractarian theory is just irrelevant.

Locke's argument is that these people are all seditious, and we do not tolerate sedition from any quarter. but he thereby implicitly presents the argument that only those religions could be true which a just state is interested in tolerating. what Locke excludes from consideration is the possibility of tension between church and state by granting the whim of the state precedence over the church. as long as the whim is enforced across the board, the church just has to sit and suffer. Locke does not therefore really want to tolerate all religions, or even all religions that cooperate in good civil order—he only want to tolerate religions that are happy with precisely his political theory. this is just too much to ask.

when all is said and done, it appears that Locke is the loser. is there a way to bolster arguments for toleration on grounds more secure? i think there is. i hold that only democratic governments have legal legitimacy at all—as a root proposition. rather than basing this upon some contractarian arguments, i believe that legitimacy inheres in the democracy itself, not in the process by which it was established.

this enables me to identify the nazi regime as illegitimate, even though once elected, and even though proper legal form was adhered to throughout. this enables me to identify legitimacy along a continuum, as various states are more or less democratic. i need not take seriouslt positivistic worries about whether the constitution of the republic was itself passed in proper legal form by the previous regime. and most pleasantly, i do not have to engage in discussions about what rational persons would do if they had the option in a state of nature radically different from all experience. legitimacy does not come from imputed (however rational) decisions made by nonexistent people, but from real (however irrational) decisions made by real people.

it is essential in a democratic government that diversity of political opinion be tolerated. without such diversity, even though the form of voting may be preserved, the democracy dies, and with it, its legitimacy. moreover, minorities must be protected against majorities from certain kinds of intrusion, in order that the democracy be stable. if certain kinds of intrusion be permitted the majority, then the result stifles political and social discourse, and as that happens, the democracy dies.

what kinds of intrusion must be rejected? alternatively put, what are the rights that citizens have under this scheme? broader rights to free speech, rights to decide manner of employment, and, yes, rights to freedom from religious interference. the united states, with its establishment clause in the first amendment, is thus more democratic than states (as many in europe) with only an equivalent to the free exercise clause.

but we need not decide whether a certain right inheres in the absolute. rather, the possession or denial of the right tends to increase or decrease the extent and stability of the democracy. rational people and decent cultures will disagree about this, and thus the major democracies of the world today fall on different points on this scale as we trade off democratic legitimacy against social stability.

what about non-democratic states? i hold that in such a state, the citizens have no obligation to the laws qua laws. but at least those laws which it is morally incumbent for the state, any state, to enforce (murder, theft, etc.) must be followed still, and the people with the guns may legitimately use the guns to enforce such laws.

this all sounds like rather shakier grounds than the careful arguments of Locke or Mill. but note that it is nicely resilient to many attacks from intolerationists. Plato can protest that it is foolish or unwise to let just anybody vote. not even athens did that. but if legitimacy comes from democracy, then thugs with guns, even well trained philosophical thugs with guns have no governmental legitimacy.

unam sanctam is wrong (and Aquinas along with it) because again the state's legitimacy as a civil institution comes from democracy, not papal delegation. (the institution of the state by God, an important christian doctrine, applies to any state [pagan rome, in the new testament], and only when the state is enforcing morally incumbent laws.)

Hobbes, Locke, and Spinoza are wrong, because social contractarian theory incorrectly locates the locus of legitimacy. legitimacy comes not from the fictitious and invented consent of ancestors, but from the real and present consent of the governed. those tedious arguments (some of which i discussed above) about just what a rational person in the state of nature would or would not agree to are thus deposited in the circular file where they belong.

and finally, note that we can rehabilitate Locke's third objection nicely, by explaining why Locke's generalization is the correct one in this context. when democratic states generalize actions to maxims, they must do so in such a way that any member of the state can judge whether the maxim is being observed. if people in fact disagree about the content of the true religion, then no maxim can refer to it, and therefore Proast's generalization is not admissible as a maxim for state action in a democracy. (or, more carefully, the more the disageement is important and the more the maxim is important and used, then the less legitimate the democracy. no abolutes or sharp dividing lines here.)

our ground in this argument has shifted from Locke substantially. no argument here about whether only members of one religion can save, no argument about the damnation of jillions of people. just simply the point that a democracy cannot use terms like true religion in its maxims, unless everyone in fact agrees about their content. but the substance of Locke's objection is maintained, and, i believe, is precisely the basis up which modern democracies in fact practice religious toleration.

i think that this outline of a political theory cleanly answers the arguments of intolerationists, and is not susceptible to the problems that Locke is subject to. sed, pudet haec approbria, etc.