The dawn of the age of toleration: Samuel Pufendorf and the road not taken.

Author:Miller, Nicholas P.
 
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It was the last gasp of the ancient regime of privileged tolerance. When Louis XIV revoked the Edict of Nantes in 1685, he did what generations of kings, emperors and princes had done for millennia before him--either grant or revoke the right of their subjects to freely practice and worship their religion. The French Huguenots had existed under the Edict's parsimonious protections since 1598. Overnight, however, the Edictbanned French protestant worship, its churches ordered destroyed, its pastors exiled, and its members dispossessed or worse. Despite order-s that Protestant lay people should not leave the country, about 200,000 fled France. The resulting diaspora enriched the skilled labor and intellectual pools of Holland, England, Germany, Switzerland, as well as the American colonies. (1)

But the revocation's significance reached beyond the immediate human interest story. Its implications for the relationships between the individual, church, and society echoed through church sanctuaries, government corridors, and university halls across Europe. In hindsight, it may appear that at that time the old world of monarchical privilege and absolutism was slowly but inexorably passing into a world of republican consent and individual rights. But these new theories remained in their infancy, and to onlookers their survival was precarious and not at all guaranteed. The revocation threatened to undue the tenuous 1648 Peace of Westphalia--and the limited yet meaningful religious tolerance it had brought to much of the continent.

If religious toleration depended upon royal whim and caprice, nowhere were religious minorities safe. Further, the Peace of Westphalia was in jeopardy and Europe could well return to its destructive and fratricidal wars of religion. The revocation thus caused the writing of several treatises on the nature and importance of religious toleration in civil society. The revocation represented the old system of position and privilege; the breadth and depth of the response to it, however, showed that a new system of pluralism and rights was emerging.

One of the primary authors at the intersection of these two systems was Samuel Pufendorf, Lutheran thinker, professor of natural law, and counselor to the King of Sweden. (2) Born in 1632, in Saxony, Pufendorf was best known for his works on natural and international law, including the The Law of Nature and Nations. Published in 1672, this work had wide influence on the continent, in Scotland, and in the newly formed American colonies. (3)

When Louis XIV revoked the Edict of Nantes, Pufendorf took the opportunity to write what has been described as an "appendix," or application of his natural law theory" to the question of church and state. (4) Entitled Of the Nature and Qualification of Religion in Reference to Civil Society ("Religion and Civil Society"), Pufendorf's work was published in 1687. It set out a principled basis for what is ultimately, and ironically, a pragramatic and rather anemic toleration of religious minorities. Pufendorf dedicated the book to the elector of Brandenburg-Prussia, and used the work to recommend himself for a post in the elector's Berlin court, which he indeed received. (5)

The intended audience perhaps helped shape the work. Pufendorf sets out a high view of the state and its power and a rather limited and weak basis for religions toleration. As will be seen below, the work begins with apparently strong principles of separation between ecclesiastical and civil spheres as well as a commitment to individual rights. But the last third of the book returns spiritual powers and oversight to the Christian ruler that is denied to secular rulers in the first portions of the book.

One may like to justify Pufendorf's rather weak arguments for tolerance on the grounds of the newness of the enterprise. But two other works written about the same time set out far more robust systems of toleration. One was by John Locke, who published A Letter Concerning Toleration two years after Pufendorf's book. (6) The other was by Huguenot theologian and skeptical thinker Pierre Bayle, who authored a treatise discussing Christ's words "compel them to come in." (7) The contrast among the three works reveals the variety of arguments already developed in the late seventeenth century regarding toleration. They also represent, in early form, different approaches to church-state relations that have influenced American church-state arrangements at different times in its history.

The American Puritans developed a Pufendorfian-like church-state arrangement in early New England, with a civil magistrate involved in enforcing ecclesiastical rules and discipline. But it was Locke's more strongly separatist views of church and state that carried the day in the founding of the American republic. In the late nineteenth and twentieth centuries, a skepticism-based toleration similar to that proposed by Bayle came into vogue. But now some with influence in the American political community are pushing for a return to a more Pufendorfian-style system, which makes this a good time to re-examine this road not taken.

This essay will review Pufendorfs arguments for toleration and seek to understand why he comes out with a weak view of religions toleration., given his commitment to natural law and natural rights. (8) It will contrast Pufendorf's arguments regarding toleration with those of Locke and Bayle, attempting to pinpoint the theological and philosophical points where Pufendorf seems to differ most from the other thinkers, and that led him to his unique conclusions. It will close by briefly looking at some recent tendencies towards a Pufendorfian-type system that exist in our society.

PUFENDORF, NATURAL LAW, THE STATE, AND THE INDIVIDUAL

As will be seen, one cannot understand Pufendorf's conclusions regarding toleration by only reading his church-state work Rather his conclusions in that work flow in good part from his larger conceptual framework set out in his foundational work on natural law--The Law of Nature. Thus, it is necessary to look at a few of the key points in that earlier work. There, Pufendorf elaborated a system of ethics that separated civil duties from religious hopes. Unlike many medieval Christian political thinkers, he did not base his natural law in conceptions of human holiness or virtue, but rather on the need for sociability or social peace. In this regard, he followed in the footsteps of Hobbes, who re-formulated the role of natural law from that which prescribes social, moral, and political flourishing, to that which merely provides a framework, or expression, of the fundamental human impulse of self-preservation--the will to live. (9)

Pufendorf did not fully accept Hobbes's highly--individualist and highly negative account of human nature--he viewed it as possessing a greater natural sociability than did Hobbes-but his natural law starting point was distinctly modern and influenced by Hobbes. (10) Indeed, in The Law of Nature, Pufendorf begins with the individual and his desire for self preservation. (11) He quickly, moves on, however, to the absolute necessity of society because of man s inherent weakness and inability to fend for himself, especially when young. (12) This is complicated, however, by an inherent self-seeking and unsociability in man that must be curbed. From this he derives "his "fundamental law of nature," which is that "EVERY MAN OUGHT, AS MUCH AS IN HIM LIES, TO PRESERVE AND PROMOTE SOCIETY: That is, the Welfare of Mankind" (13)

This same emphasis on society and the state is seen in Pufendorfs discussion of civil government. While he accepts that all governments must obtain the consent of the governed, they can obtain this consent in a variety of ways, including military force and conquest. (14) Further, once a ruler obtains this consent, he or she is invested with 'the supreme authority," the exercise of which remains "unaccountable to all-the world." (15) Indeed, as the promulgator of laws, the government is above its own laws, although as a prudential matter, a prince or king may voluntarily choose to obey them. (16) The people owe absolute obedience, except when a law openly contradicts the law of God. (17) In the face of even unjust persecution, subjects must submit, or at most flee. (18)

As noted above, Pufendorf later moves away from these requirements of almost utter submission by subjects. But the concept of the state's primary authority continues on into his later works. This statist, paternalistic emphasis can be explained, in part, by his view of the human capacity to understand natural law. Pufendorf accepts that the natural law is understandable by every "man of mature age, and entire sense," given sufficient care and consideration. (19) But in practice, few actually know the law.

In Pufendorf's view, people's consciences fall into three categories. There is "conscience rightly informed," when a person can give certain and undoubted reasons for his ethical opinions. There is probable conscience," when a person cannot arrive at ethical truth through his own reasoning, but relies on his education, training, custom or authority of wiser persons. Finally, there is "doubting conscience," where a person's understanding is unsatisfied and cannot decide upon an ethical course. (20) Pufendorf says that most people most of the time operate in the middle category of "probable conscience." This is because few are able to spend the time and effort to know the true cause of things. Thus, rulers need to pass laws to preserve the people's peace, and these laws should include those that promote the essentials of the Christian religion. (21)

But Pufendorf says little else in The Law of Nature about how the state should promote religion, what the limits of the promotion should be, and how minority religions should be treated. That is the task he undertakes about twenty-five years later in his sequel, Religion...

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