Career of Toleration: John Locke, Jonas Proast, and After 9780773564169

Table of contents :
Contents
Introduction
1 The Argument from Belief
2 Locke, Toleration, and Public Reason
3 Toleration without Scepticism
4 Slippery Slopes and Other Hazards
5 Proast on Locke, Stephen on Mill: A Structure of Illiberalism?
6 A Moral Pluralist Case for Toleration?
7 From Toleration to Deliberation?
Conclusion: What Is Living and What Is Dead in the Exchange between Locke and Proast?
Index
A
B
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D
E
F
G
H
I
J
K
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M
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Citation preview

THE CAREER OF TOLERATION

McGiLL-QuEEN's STUDIES IN THE HISTORY OF IDEAS i Problems of Cartesianism Edited by Thomas M. Lennon, John M. Nicholas, and John W. Davis 2

The Development of the Idea of History in Antiquity Gerald A. Press 3 Claude Buffier and Thomas Reid: Two Common-Sense Philosophers Louise Marcil-Lacoste

4 Schiller, Hegel, and Marx: State, Society, and the Aesthetic Ideal of Ancient Greece Philip J. Kain 5 John Case and Aristotelianism in Renaissance England Charles B. Schmitt 6 Beyond Liberty and Property: The Process of Self-Recognition in Eighteenth-Century Political Thought J. A. W. Gunn 7 John Toland: His Methods, Manners, and Mind Stephen H. Daniel 8

Coleridge and the Inspired Word Anthony John Harding

9 The Jena System, 1804-5: Logic and Metaphysics G. W. F. Hegel Translation edited by John W. Burbidge and George di Giovanni Introduction and notes by H. S. Harris 10 Consent, Coercion, and Limit: The Medieval Origins of Parliamentary Democracy Arthur P. Monahan

11 Scottish Common Sense in Germany, 1768-1800: A Contribution to the History of Critical Philosophy Manfred Kuehn 12 Paine and Cobbett: The Transatlantic Connection David A. Wilson 13 Descartes and the Enlightenment Peter A. Schouls 14 Greek Scepticism Anti-Realist Trends in Ancient Thought Leo Groarke 15 The Irony of Theology and the Nature of Religious Thought Donald Wiebe 16 Form and Transformation A Study in the Philosophy of Plotinus Frederic M. Schroeder 17 From Personal Duties towards Personal Rights Late Medieval and Early Modern Political Thought, 1300-1600 Arthur P. Monahan 18 The Main Philosophical Writings and the Novel Allwill Friedrich Heinrich Jacobi Translated and Edited by George di Giovanni 19 Kierkegaard as Humanist Discovering My Self Arnold B. Come 20 Durkheim, Morals, and Modernity W. Watts Miller 21 The Career of Toleration John Locke, Jonas Proast, and After Richard Vernon

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THE CAREER OF TOLERATION John Locke, Jonas Proast, and After Richard Vernon

McGill-Queen's University Press Montreal & Kingston • London • Buffalo

© McGill Queen's University Press 1997 ISBN 0-7735-1022-2 Legal deposit second quarter 1997 Bibliotheque nationale du Quebec Printed in Canada on acid-free paper This book has been published with the help of a grant from the Humanities and Social Sciences Federation of Canada, using funds provided by the Social Sciences and Humanities Research Council of Canada. Publication has also been assisted by a grant from the J.B. Smallman and Spencer Memorial Fund, University of Western Ontario.

Canadian Cataloguing in Publication Data

Vernon, Richard, 1945The career of toleration: John Locke, Jonas Proast, and after (McGill-Queen's studies in the history of ideas; 21) Includes bibliographical references and index. ISBN 0-7735-1022-2 i. Toleration. 2. Locke, John, 1632-1704 -Views on toleration. 3. Proast, Jonas - Views on toleration. 4. Locke, John, 1632-1704 - Epistola de tolerantia. I. Title. II. Series. BRi6io.V47 1997 320.5 096-900867-8

This book was typeset by Typo Litho Composition Inc. in 10/12 Baskerville

Contents

Introduction

i

i The Argument from Belief

17

2 Locke, Toleration, and Public Reason

35

3 Toleration without Scepticism 52 4 Slippery Slopes and Other Hazards

70

5 Proast on Locke, Stephen on Mill: A Structure of Illiberalism? 88 6 A Moral Pluralist Case for Toleration? 107 7 From Toleration to Deliberation?

124

Conclusion: What Is Living and What Is Dead in the Exchange between Locke and Proast? 143 Index

163

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Acknowledgments

Although this is a short book it has been several years in the making. During that time I have received encouragement and helpful criticism from many colleagues and friends: Richard Bellamy, Roger Emerson, John Horton, Brian Hurren, Les Jacobs, Sam La Selva, Doug Long, David Miller, Bob Sansom, Gordon Schochet, Stephen State, Andrew Williams, and Bob Young have all offered helpful comments (without of course incurring responsibilities thereby). I should also like to thank the Social Science Federation's anonymous reader. Completion of this book would not have been possible without a sixmonth period of administrative leave provided by the University of Western Ontario. Part of this leave was spent in Oxford, where Nuffield College generously extended visitor's privileges to me. The introduction and chapter i draw, respectively, on material previously published in The Locke Newsletter 24 (1993): 95-106, and Studies in Political Thought 2 (1992): 47~57- My thanks to the editors for permission to reprint.

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THE CAREER OF T O L E R A T I O N

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Introduction

John Locke's Letter Concerning Toleration is, together with Milton's Areopagitica and J. S. Mill's On Liberty, one of the three canonical Englishlanguage texts in the history of the idea of toleration, and one of the most important texts on that subject in any language. After its publication in 1689, Locke engaged anonymously in a heated debate with one of the letter's critics: Jonas Proast, a chaplain at All Souls College, Oxford, who enjoyed distinguished High Church Anglican patronage. In 1690 Proast published The Argument of the Letter Concerning Toleration Briefly Considered and Answer'd Locke's reply, in the same year, was A Second Letter Concerning Toleration. In 1691 Proast responded with A Third Letter Concerning Toleration, and in the following year Locke published by far the largest work in the exchange, A Third Letter for Toleration, almost ten times the length of his original letter. After a twelve-year silence Proast replied with A Second Letter to the Author of the Three Letters for Toleration, whereupon Locke began A Fourth Letter for Toleration, which was incomplete at the time of his death in 1704. As far as we know, this exchange of increasingly acrimonious pamphlets was the only interaction between Locke and Proast, apart from a brief anonymous letter from the former to the latter, correcting a page reference.1 In recent years, which have seen scholarship of the first quality in both the interpretation of Locke and the analysis of toleration, the Locke-Proast controversy has attracted more attention than ever before, though it must be said that the interpretative literature is still quite modest in scale. A much-cited 1988 paper by Jeremy Waldron takes note of

i. Locke, Correspondence, 8:364—65

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Proast in order, essentially, to endorse his main critique of Locke.2 In 1991 Mark Goldie gave an extended account of Proast's views and his critique of Locke,3 and Peter Nicholson examined Locke's replies in some detail.4 In 1993 David Wootton gave close attention to the exchange in the introduction to an edition of Locke,5 and another paper by Goldie gave a detailed account of the personal and political circumstances underlying the exchange.6 These discussions, although few in number, give an idea of the possible range of approaches to the Locke-Proast exchange, from uncovering the truly comical micropolitics of Proast's college, to testing the logical validity of Locke's epistemological case. This short book tends very much towards the analytical end of the spectrum. It considers what we might make of the controversy from the standpoint of political theory by examining Locke's and Proast's texts, along with later texts in relation to which the controversy may usefully be situated. This examination was provoked, initially, by the "revisionist" view that it was not Locke, as traditionally believed, but Proast who effectively won in their exchange. Given the canonical status of Locke's letter, such a view obviously has implications that extend far beyond the issues of England in the 16908 to embrace the fundamental claims of the liberal tradition itself. The protracted argument between Locke and Proast is both manifold and intricate, and additionally complex in that the two writers often do not agree about what is actually at issue. My first aim is to try to reconstruct the grounds of their dispute. But I also want to draw attention to the longterm importance of some of their arguments and to evaluate their relative strength. The reader will see that on balance—rejecting the "revisionist" view—I think Locke's arguments are much stronger. I did not begin with this view, and it was the process of assessing the rival cases that led me to see strengths in Locke's position that I had not seen before and to see, too, that his position has not always been properly understood. If it did nothing else, the controversy with Proast illuminated the

2. Waldron, "Locke: Toleration and the Rationality of Persecution." 3. Goldie, "The Theory of Religious Intolerance." 4. Nicholson, "John Locke's Later Letters." In the following year: Vernon, "Toleration without Scepticism." 5. Wootton, Political Writings of John Locke, 94-110. 6. Goldie, "John Locke, Jonas Proast and Religious Toleration." Some of the findings in this paper were simultaneously confirmed by Vernon, "Locke's Antagonist, Jonas Proast." Goldie's paper, however, draws on a wider range of archival sources.

Introduction

5

Lockean case for toleration and what we may term the "argumentative priorities" within it. The first four chapters of this book are mainly about Locke and Proast, though parallels or contrasts with later thinking are introduced where it seems helpful to do so. The first chapter examines what is sometimes taken to be Locke's main argument—that belief cannot be coerced—and tries to show how it stands in relation to other arguments. The second tries to explain Locke's theme of "public reason," contrasting it with Kant's and Rawls's. The third criticizes the familiar view that toleration arises from scepticism, a tenacious view with which liberals still have to contend. The fourth takes apart a mode of argumentation to which both Locke and Proast are (for different reasons) chronically addicted, that of the "slippery slope." The last three chapters, while still pursuing the issues that Locke and Proast discussed, take later contexts as their main focus: J.F. Stephen's critique of J.S. Mill (considered in relation to Proast's critique of Locke), the perfectionist alternative to contractualist liberalism (considered as an answer to Locke's claim that perfectionism leads to persecution), and the view that the traditional attachment to "toleration" must, by the force of its own arguments, pass over from liberalism into a defence of a much stronger form of democracy. Since that view in effect relegates the Locke-Proast controversy to an antiquarian past, its assessment and rejection are important to this study. What, then, did Locke and Proast propose, how did they support it, why is it significant, and does it work, in the light of our own best critical knowledge? The book tries to sustain a general thesis about these three questions. The Locke-Proast controversy marks a point of divide between two conceptions of politics. In one, advanced by Proast, political claims are thought to flow directly from moral or epistemic or theological claims to Tightness; what we can rightly do, politically, follows strictly and immediately from what we can rightly believe, in whatever sphere it is that we hold norms to originate from. In the other, attributed here to Locke, the flow from moral or epistemic or theological claims is not direct but mediated—by the distinctive concerns of political theory, concerns about the special considerations that obtain when one person authoritatively changes the life of another. What is right does not entail a political right, and the issue of toleration is not bound up with issues of Tightness but with the more narrowly defined issues of political morality. This may be the most important single distinction to have been made in modern political theory; for the difference that

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The Career of Toleration

would be made to life by applying one or the other of these approaches is immense. If each person's whole life were subject to correction—formal, final, and authoritative correction—by a state, then the sense of selfhood would be greatly diminished, the idea of responsibility would be entirely undermined, and life would have a constrained character that most of us, even those who are critical .of liberalism, would rebel against. The idea that particular constraints apply to political authority, that people can rightfully live lives that political authorities dislike, that adulthood entails responsibilities that childhood (rightly) lacks, that people may be worried by issues they do not trust authority to resolve— all this arises from an evolutionary movement in early modern political thought, a movement without which the way we live now would be incomprehensible, and quite intolerable. This evolution is not, of course, the result of a single mind; there are large questions about how to assign credit among thinkers and when to ascribe causal force to thought or circumstance. I make no causal claims at all. Rather, this study contrasts the two views of life propounded by Locke and Proast in what is, as far as I know, a uniquely emblematic controversy, and tries to show what is at issue between them. The intellectual and political situation of Locke's writings has been analyzed impressively and often. This book adds nothing to that scholarship, nor does it take sides in the controversies within it. I shall give no more than an outline of the immediate circumstances of Locke's first letter, and then describe in rather more detail his critic's immediate circumstances, which are far less well known.

Locke wrote his Latin text Epistola de Tolerantia in 1685 during a selfimposed exile in Holland. Eventually published in 1689, it was followed by William Popple's English translation (A Letter Concerning Toleration) later in the same year after Locke's return to England. Locke's complicity in various kinds of "Whig" resistance to the policies of the restored Stuart monarchy, particularly its religious policy,7 had compelled his departure from England. His return was made possible by the ousting of the Stuarts in the revolution of 1688 and their replacement with a dynasty more congenial to the Whigs. In May 1689—five months before the publication of the English version of Locke's letter—Parliament passed the legislation 7. See Cranston, John Locke especially chapters 16 and 17, and Ashcraft, Revolutionary Politics, chapters 7-9.

Introduction

7

usually referred to as the Toleration Act, relieving some dissenters of some of the disabilities imposed on them by earlier legislation.8 It would be wrong to suppose that Locke's letter appeared only after the game was over, for the act of 1689 was both deficient and precarious.9 Locke's own toleration was far from inclusive: he would have tolerated neither Catholics nor atheists since both, in his view, held beliefs inconsistent with the security of civil society. The act, however, extended toleration only to Protestants who professed belief in the Trinity. It did not relieve them of civil disabilities—while they could freely practise their religion, they could not hold civil office. Moreover, the oppressive legislation that gave rise to the 1689 act was not repealed but its effect merely suspended, thus opening the possibility that in changed political circumstances the whole apparatus of persecution could simply be reimposed. Under William,10 whose experience in Holland predisposed him to policies of toleration, the act was perhaps reasonably secure, though the voices for conformity remained loud. After his death, however, Queen Anne's High Church sympathies gave the conformists renewed hope, and Proast's decision to renew his attack on Locke in 1704, after a twelve-year moratorium, may well have owed something to this. So the fight to which Locke's letter contributed was far from won. Like other classic works, the letter has something odd about it, or so his commentators believe. To Richard Ashcraft it combines elevated philosophical ambitions with the most demagogical "anti-Popery" themes;11 David Wootton notes its ahistorically philosophical interest to commentators, as well as the difficulty of ascribing to it any very precise historical context. "Nobody has been able to provide an adequate treatment of A Letter Concerning Toleration within the conventions of the history of ideas. Consequently, almost everybody who writes about it writes in a curiously mixed mode: on the one hand they explain that the text is a survival from another era, written in alien circumstances, but on the other they quickly proceed to compare Locke's arguments to those used here and now."12 Wootton also points out that we do not even know which national context to refer to: that of Holland, where Locke wrote his text; that of England—obviously his main focus of interest—at the time when 8. A facsimile of the act is printed in Grell et al., eds., From Persecution to Toleration, after p. 410. 9. See Trevor-Roper, "Toleration and Religion after 1688." 10. See Israel, "William III and Toleration." 1i. Ashcraft, Revolutionary Politics, 498 12. Wootton, Political Writings of John Locke, 95

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Charles II died and his Catholic brother, James, became king; or that of France, where in 1685 the revocation of the indulgent Edict of Nantes exposed the Huguenot minority to appalling cruelty. Of course, Locke may have had more than one context in mind, which would account in part for the relative abstraction of the letter, and its consequent attraction (noted by Wootton) for political philosophers. At the very least it is reasonable to suppose that both England and France were on Locke's mind. England posed the problem of justifying toleration for Protestant dissenters but not for Catholics, a problem that the letter solves. The letter also describes ferocious methods of repression of which the slaughter of Huguenots in France was the best contemporary example, and Locke repeatedly raises the Huguenot case in his subsequent exchanges with Proast. Perhaps, then, Locke wrote a canonical text just because the need to deal with two cases at once led him to a level of generality far above that of the piece d'occasion. But more than that, both the English and French cases, in different ways, contained their own impetus towards abstraction. The Stuarts' sympathy for Catholics necessarily inclined them to a policy of "indulgence," that is, an executive suspension of the law falling within the scope of their own prerogative, simply because parliamentary support for a change in the law was inconceivable. Neither Whigs nor Tories were prepared to tolerate Catholics. Of course, it made sense for the Stuart monarchs to "indulge" Protestant dissenters too, in the hope of buying off the Whigs, some of whom might just possibly have accepted the toleration of Catholics as the price to be paid for the toleration of dissenting Protestant congregations. So what the Whig cause needed was an argument that would remove toleration from the realm of executive "indulgence" and in doing so build toleration—selective toleration— into the definition of the state itself. That gives a quite precise program for the task undertaken by Locke, obliging him to link toleration not with con testable questions of policy but with the very notion of political legitimacy, hence with a theory of the state. As for France, Locke's views about the toleration of Catholics posed an obvious problem. It would be difficult to deliver powerful invective against the persecution of French Huguenots while calling for the persecution of English Catholics. I can think of no other reason why the case for intolerance towards Catholics is disguised, in the letter, as an argument against tolerating "Mahumetans" on the grounds—transparently applicable to the Catholic case—that they owe obedience to an authority outside the state. (If, as Ashcraft says, Locke was resorting to demagogical

Introduction

g

English "anti-Popery" rhetoric, why would he avoid referring directly to intolerance of Catholics? I take this as further evidence that he may have been trying, somewhat uncomfortably, to take account of two national contexts at once.) Once again, the tendency is an abstracting and generalizing one. Because it would be impolitic to refer explicitly to the case that worries him, Locke has to appeal to a generic category instead, that of transnational and hierarchical religious movements, picking as his example a movement ("Mahumetanism") entirely irrelevant to any of the contexts that he might have been concerned about. These, then, are some of the background considerations that might explain why the letter takes the form that it does. The letter itself is an extraordinarily compact web of argumentation and plainly the result of supremely concentrated thought. Point after point is driven home. Persecution is inconsistent with Christian virtues of charity and meekness. It reveals a will to power thinly veiled by religious claims. Those who practise it inconsistently spare the vices of their own party. It is absurd to claim to save men's souls by executing them in an unconverted state. Persecution confuses the proper roles of churches and states. The care of souls is not entrusted to states by God, or by their subjects. Conformism in religion does not amount to the kind of belief needed for salvation. States cannot by coercive means change our beliefs. Even if they could, we have no reason to suppose that they would impose the right beliefs. Nor can states compensate us if they happen to get it wrong. Persecution leads to civil discord. Indifferent things, such as modes of worship, cannot be made compulsory, because they are indifferent. If you believe you should persecute erring internal minorities, you should on the same grounds invade foreign states that hold erroneous views. These statements take us about half way into the letter, and in the latter half the same or similar arguments are repeated, often in combination, or are demonstrated by example. Locke's multilayered and highly mobile rhetoric is formidable. The forceful and abrasive English is not, of course, Locke's own, but as Ashcraft points out,13 he made no substantive changes to the second edition and defended the English version, sometimes word by word, in his polemic with Proast. Jonas Proast was the only critic of the Letter Concerning Toleration to whom Locke replied in print, and, as we have seen, there are doubts 13. Ashcraft, Revolutionary Politics, 49811-9911.

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about whether, for all his philosophical stature, he replied successfully. So Proast would seem to be a significant figure: but who was he? The British Museum and Bodleian catalogues contain no publications by him other than his critiques of Locke. Commentaries generally note that he was chaplain at All Souls, but in fact, by the time he wrote his first two critiques of Locke, Proast had been dismissed from his chaplaincy and was even forbidden by specific motion of the college to set foot in the chapel.14 The complexities of his life link him with Locke's in unexpected and paradoxical ways. Proast was an Oxford graduate, having matriculated at Queens in 1663. He became chaplain at Queens and then at All Souls, eventually becoming an archdeacon and an active figure in the Society for the Propagation of the Gospel. Intriguingly, his career at Oxford, like his literary life, was marked by protracted combat. But while in the latter case his adversary was a philosopher of extraordinary power, in the former his nemesis was a man described by a scrupulous contemporary as "not... altogether a debauchee"15—Leopold Finch, the warden of All Souls who dismissed Proast in 1688. Finch, a well-connected young aristocrat, had become a fellow of All Souls in 1682 over the strong objections of the then warden, Thomas Jeames, and the college's Visitor, or external adjudicator, the Archbishop of Canterbury, then William Sancroft.16 On Jeames's death five years later, Finch, who had some influence at Court, secured from James II a "mandate" (that is, a writ of mandamus, setting aside ordinary statutory procedures) appointing him warden of the college, and the fellows admitted him, though without election.17 Now, what begins to knit this story together with national politics and the struggle over toleration is that writs of mandamus were among the principal instruments of the highly controversial "dispensing power" by which James II pursued his pro-Catholic policy at Oxford and elsewhere.18 A Catholic party at Oxford with new-found expectations of royal protection sought to win control of university and college offices, offering its own candidate for the wardenship of All Souls itself, the incredibly named Dr Plot.19 It was the college's fear that "an actuall Papist" 14. 15. 16. 17. 18. 19.

Appeals and Visitors' Injunctions, 1:65 (Proast to subwarden and fellows, n.d.). Wood, Life and Times, 3:217. See Burrows, Worthies of All Souls, 287—304. The text of the mandate is in Gutch, Collectanea Curiosa, 2:282. General accounts include Bennett, "Loyalist Oxford and the Revolution." Wood, Life and Times, 208.

Introduction

11

might be imposed by the Crown that led Finch to put himself forward as a candidate—or so he claimed in a long and ingenious letter to the Visitor, Sancroft, excusing himself for bypassing the ordinary avenues of appointment.20 Disregarding its sanctimoniousness, Finch's letter is not implausible: the college might indeed have preferred the imposition of a well-connected Anglican as warden to the imposition of a "stranger" or "papist" (a fate suffered a few months later at Magdalen, where all but one of the fellows were dismissed, under force of arms, for resisting an unwelcome royal mandate). But whatever the short-term tactical value of the move, Sancroft was naturally concerned that the use of a mandate undermined the statutory oversight of the college, i.e., his own, as Visitor. He refused to give Finch formal recognition, addressing him as "acting warden" (gerens se pro custode).21 "His Grace says the college is his," one of Finch's correspondents wrote, "and he will not have you there but by his own right."22 The affair of Jonas Proast gave Sancroft and his successors an important opportunity to reassert their jurisdiction over All Souls and thus to protect the church establishment. If Finch's first weakness was the dubious legality of his appointment, his second was a chronic lack of money (due not entirely to the purchase of books, a contemporary drily remarks). His need for extra income led him to stand for election to the Camden professorship of History in 1688. He instructed the members of his college to vote for him; all did so except Proast, who had promised his vote to another (and certainly better) candidate and, Finch believed, persuaded two others to vote for his main opponent. Since Finch lost the election by six votes, he saw Proast as the villain of the piece, and on the very next day dismissed him from his chaplaincy "for not giving his vote for the Warden when he stood to be History Professor and for being medling and troublesome in the house."23 Proast then appealed to the Visitor, seeking reinstatement, arrears of pay, and a general protection for chaplains against summary dismissal. He refers to his "pretended expulsion" by "the pretended Warden of the college,"24 thus linking his own case firmly to the general issue of dispensing power. Proast's beliefs about 20. The letter is in Appeals and Visitors' Injunctions, 1:54, and is reprinted in Gutch, Collectanea Curiosa, 2:49-53. 21. Ibid., 62 (legal opinion byj. Harrington, n.d.). 22. Ibid., 56 (Clarges to Finch, 12 October 1687). 23. Wood, Life and Times, 263. 24. Appeals and Visitors' Injunctions, 1:65 (Proast to subwarden and fellows, n.d.).

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dispensing power were very likely among those things that Finch had found "troublesome in the house" even before the affair of the Camden professorship. In 1688 the whole situation changed. After the revolution the value of a mandate from James II declined, to Finch's disadvantage. But within the Church itself the winds of change blew very much against Proast. To Proast's dismay, Sancroft, a "nonjuror" who refused to accept the legitimacy of the new political regime, was replaced by John Tillotson, a Low Church Latitudinarian cleric who, believing that the Church should open itself to all those who could accept its articles without looking too closely into their understanding of them, was very much of Locke's persuasion; in fact, the two men were close acquaintances.25 It is hard to avoid the suspicion that this is why Proast's grievance, almost certainly a justified one given the entirely arbitrary nature of his dismissal, was denied resolution for so long. Even as he was appealing to the archbishop for his job and back pay, he was writing venomous attacks against Tillotson's personal and political friend, on the grounds that he held views with which Tillotson probably wholly agreed. In 1693, at the request of the Visitor, the subwarden and fellows met in the warden's absence to find a resolution. They rejected Proast's case point by point but concluded: "We do promise upon your declaration to live peaceably and quietly among us, and to be content with those rights and priviledges which the Statutes allow a Chaplain, to desire the Warden to put you in to a place of Chaplain"26; that is, they rejected reinstatement but recommended prudent reappointment. Proast seems to have accepted a new position (shortly afterwards the subwarden assured the Visitor that Proast was again a chaplain27) but he pursued his case for reinstatement and arrears of pay. In 1697 the Visitor (now Thomas Tenison) decided in Proast's favour, directing the college to find his arrears of pay. The fellows complied, voting to withdraw one hundred pounds for Proast from the Tower fund "for the peace of the college."28 Tenison also compelled Finch to regularize his own position by resigning and accepting reappointment by the Visitor.29 25. See Goldie, "John Locke, Jonas Proast," 152. 26. Appeals and Visitors' Injunctions, 1:67 (Subwarden to Proast, n.d.). 27. Ibid., 69 (Subwarden to Visitor, n.d.). 28. Robinson, All Souls College, 159. 29. Burrows, Worthies of All Souls, 310. Burrows suggests that the settlement of Proast's case and the legalization of Finch were linked elements in a negotiated compromise, and this is confirmed by Goldie, "John Locke, Jonas Proast," 153

Introduction

13

Proast's victory was a small and belated triumph of constituted power over irregular power in both national and collegial governance. He placed himself in the hands of the legally established Church, and the Church did not fail him, although it took quite a long time not to do so, having slipped from the grasp of his friends. For this reason Proast's struggle against Finch was doubtless, in his own eyes, all of a piece with his struggle against toleration; for that too, as pursued by James II, was an irregular policy, an application of arbitrary power at the expense of law. The very instrument by which Finch was appointed, the writ of mandamus, was used to circumvent the Test Acts through the appointment of non-communicants of the Church of England to college and university office. A similar contempt for legality was evident, Proast believed, in James's attempt to force the Anglican clergy to read from the pulpit a "Declaration for Liberty of Conscience," effectively enforcing a general suspension of the Church's legal hegemony. Sancroft led the fight against this declaration, and among his papers is a document entitled "The Case for [sic] reading the Declaration for Liberty of Conscience, briefly stated in four Propositions," written by Jonas Proast: I. The intent of the Declaration itself is, that men may use such a liberty, in matters of Religion, as cannot be used, without violating the laws of God and this kingdom. II. The intent of the order for the Clergy's reading the Declaration is, that the Declaration may have the fuller effect, in the more general use of that unlawful liberty. III. Therefore, in the King's intention, and according to the most natural construction of the thing itself, the Clergy's reading the Declaration is a direct promoting the use of that unlawful liberty. IV. Therefore the clergy cannot lawfully obey the order for their reading the Declaration.30

Bearing in mind the conception of the English polity expressed here and in Proast's life, one aspect of his exchange with Locke becomes clearer. In reply to Proast's claim that it is permissible to use "moderate force" to "bring men to the true religion," Locke argues that such a policy would act to the disadvantage of the true religion by licensing monarchs everywhere to use force in support of the many false religions that they believe to be true. He raises the epistemological point that we do 30. Gutch, Collectanea Curiosa, 1:328

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The Career of Toleration

not have beliefs and also believe some of them to be true; what we believe we believe to be true, and so, as far any given person can judge, the true religion is his or her religion: "Everyone here must be judge for himself."31 But given Proast's story, Locke's objection is not entirely apposite. Proast could hardly have been more aware that what kings believe to be true may not be true; for a king had used extralegal powers to advance a false religion as well as to impose a high-handed spendthrift warden upon All Souls, at enormous personal cost to Proast himself. Proast's concern is not with the epistemological question of people's attitudes to the truth of their own beliefs but with the legal establishment of "true religion" in such a way that it could withstand even monarchs' false beliefs. He believes that in debates with advocates of toleration an appeal to "true religion" can indeed be made because we believe that religion to be enshrined in the historic community we belong to. But this leads directly to a controversy about what controversy ought to be about. Hence, although we can say quite confidently that Proast won—eventually—his fight with Leopold Finch, it is much harder to say who won the fight with John Locke over the relative priority of thinking and of belonging, a fight still waged today under different names. Do we begin by asking about the features of the polity that we would agree to belong to, abstracted from the particular and contestable ends that we favour? Or do we begin by asking who, historically, we are, regardless of who we might have been in other circumstances? What degree of detachment should we aspire to when our own beliefs come into conflict with others'? How we answer these questions is the most basic determinant of our view of toleration. They are meant, of course, to evoke reference to two competing tendencies in recent political thought, one of a proceduralist kind, the other an unmediated appeal to shared communal values.32 The parallel is certainly far from complete: Locke's point of departure is not that of recent liberalism, while Proast's appeal to a transcendent truth is at odds with the relativistic tendency of later communitarian thought. Yet Locke's argumentation shares some important features with that of recent liberalism, as I shall try to show. And Proast is quite 31. Locke, Works, 6:251. 32. For a very interesting selection of perspectives, see Douglass et al., ed., Liberalism and the Good.

Introduction

15

prepared to employ an appeal to our communal beliefs (as he sees them) in conducting his critique. In their own way, they are contesting an issue of identity and legitimacy: whether one can argue for laws or policies through an unmediated appeal to who we are and what we are committed to, or whether a successful argument requires distancing oneself critically from one's identity and commitments. While it would spoil the parallel to take it too far, not to see it at all is to impose an artificial barrier between the late seventeenth century and ourselves, and, moreover, to miss the way seventeenth-century political debate continues to influence and shape our own. The Locke-Proast debate is sometimes said to be of primarily historical interest.33 If this means that it is of little interest to current political theory, then obviously it is a claim I question here. But there is a broader sense in which "historical interest" encompasses both the reconstruction of past debates in their own terms and their critical reassessment. It is this broader meaning that exchanges such as Locke and Proast's are likely to invite since they mark the turning points in an intellectual history that we have inherited. Here it may be difficult—but perhaps, in the end, unimportant—to know where history ends and political theory begins. For while trying to understand Locke and Proast is to rethink, as far as possible, their thoughts, it is also in part to rethink one's own.

33. Horton and Mendus, eds.,John Locke, 9. The authors go on at once to say that it is "not without significance for a modern audience."

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1

The Argument from Belief

One of Locke's most famous arguments for toleration is drawn from the nature of our beliefs. "Such is the nature of the understanding," Locke writes in A Letter Concerning Toleration, "that it cannot be compelled to the belief of any thing by outward force. Confiscation of estate, imprisonment, torments, nothing of that nature can have any such efficacy as to make men change the inward judgment that they have framed of things"; for "penalties... are absolutely impertinent; because they are not proper to convince the mind... It is only light and evidence that can work a change in men's opinions; and that light can in no manner proceed from corporal sufferings, or any other outward penalties."1 Penalties can affect our choices by acting upon our will, but will is one thing, belief or opinion another. The same point is made at greater length in the Essay Concerning Human Understanding, where Locke writes: "What [a person] does see, he cannot see otherwise than he does. It depends not on his Will to see that Black, which appears Yellow; nor to persuade himself, that what actually scalds him, feels cold."2 We can see how, on the face of it, this consideration tells against the persecution of people for their beliefs. Such persecution becomes not only inhumane but irrational, since it cannot succeed in its stated objectives. Unfortunately for Locke's case, however, both the relevance and the truth of the claim have been successfully disputed. Its relevance is undermined if, as may be the case, the persecuting state has no interest in changing its subjects' minds, only their professions and their behaviour— 1. Locke, Works, 6:1, 12. 2. Locke, Essay Concerning Human Understanding, Bk. 4, chap. 13, 650, emphasis in the original.

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The Career of Toleration

because, for example, it wishes to prevent the beliefs of a minority from spreading. And its truth is undermined if, as Locke himself elsewhere concedes, there are factors contributing to belief that are voluntary and can therefore be influenced by states. In this chapter I will consider whedier and how Locke's attractively powerful argument can be restored. First, I will examine Proast's critique of the argument from belief and assess the place of that argument within Locke's general case. Second, I will examine the issue of relevance: does it matter that persecution cannot produce sincere belief? Finally, I will determine the consistency of Locke's views in light of what he wrote elsewhere.

According to Proast's first critique, The Argument of the Letter Concerning Toleration Briefly Considered and Answered, what may be termed the "argument from belief is "the whole strength" of Locke's position.3 It fails to rule out the use of force in religious matters because force may be used not instead of reason, but to bring people to consider reason: "Who can deny, but that indirectly and at a distance, it does some service toward the bringing men to embrace that Truth, which otherwise, either through Carelessness or Negligence they would never acquaint themselves with, or through Prejudice they would reject and condemn unheard, under the notion of Errour?" 4 Proast readily concedes that the form of persecution attacked in Locke's letter, persecution by "Fire and Sword," is both wrong and irrational, even (he adds) counterproductive.5 But the arguments against burning dissenters at the stake do not work against moderate penalties—such as fines for non-attendance at Church—that are intended merely to "disposfe] men to submit to Instruction."6 This limits the scope of Locke's argument very considerably. It works against the self-deluded tyrant who thinks that lurid threats against his enemies will induce sincere and instantaneous conversion. But it does not touch the instruments of Anglican hegemony typical of Locke's own time, or the networks of indirect and longer-term control of thought and expression by which states repress dissent today. So it is not surprising that Proast's case should receive endorsement. According to one recent 3. Proast, Letters Concerning Toleration ( i ) , 3. Each of Proast's critiques is printed with its own pagination. The particular critique being cited will be indicated as ( i ) , (2), or (3). 4. Ibid. 5, emphasis in original. 5. Ibid., 13. 6. Ibid.

The Argument from Belief

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commentator, "the response [Proast] provides completely and effectively demolishes the substance of [Locke's] position."7 How does Locke respond? He takes Proast's concession in the matter of persecution by "Fire and Sword" as a tacit endorsement of his own case in the letter, which, he points out, had been directed against that very mode of persecution. He could hardly have been expected to provide arguments against moderate Proastian persecution before the doctrine had been announced, and it was announced, he says, only in response to his letter. Proast's case, he complains to its author, is "a new method... never yet thought on by the most refined persecutors,"8 and "was never thought on by any authority, in any age or country, till you now... made this happy discovery."9 This is surely disingenuous. As Proast points out,10 St Augustine had seen a role for coercion in bringing unbelievers to listen. In a letter to Vincentius that Proast does not cite, Augustine refers to the case of converts who had said, "We were prevented from entering the Church by false reports, which we could not know to be false unless we entered it; and we would not enter unless we were compelled"* J—a passage that so closely resembles Proast's comments, quoted above, that it may perhaps have been one of his sources. The same view had been advanced in Thomas Barlow's Toleration in Matters of Religion, written in 1664 when Barlow, Locke, and Proast were at Oxford. Barlow was a source both for the Lockean thesis that "the internal acts of the soul... cannot be compelled" and for the Proastian thesis that the state may compel church attendance "as parents compel children to go to school for information, though they cannot compel them to an assent and belief of what they are taught."12 As Locke's subsequent responses to Proast make clear, he is well aware that the policy of fining dissenters for non-attendance dates back to the time of Elizabeth I. And finally, Locke had advanced the same argument himself in his earlier, antitolerationist first tract on government: "Education, custom and conversation have no small influence on the persuasions of men, and are usually by laws provided for, but these work not by violence, they insinuate only, not compel."13

7. Waldron, "Locke: Toleration and the Rationality of Persecution," 84. 8. Locke, Works, 6:87. 9. Ibid., 485. 10. Proast, Letters Concerning Toleration (3), 43. 11. Augustine, Political Writings, 205. 12. Barlow, Citizenship and Conscience, 30—31. 13. Locke, Two Tracts on Government, 129.

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The Career of Toleration

Be that as it may, Locke's insistence on the novelty of Proast's position amounts in effect to a concession on his part. If he thought he could answer Proast's critique of the argument from belief as his letter had presented it, he would not have to claim that Proast had offered a case other than the case that he had criticized. But he does make this claim and tries, further, to meet the Proastian case, which, however disingenuously, he says is "new." It does not seem right, therefore, to complain that Locke spills futile ink in defence of the argument from belief:14 he is no longer trying to defend it. So what does he now defend? His first response is to try to preserve the claim that persecution is irrational, but on much more limited grounds. Compelling church attendance may, he admits, lead indirectly to conversions but would do so only "accidentally." Almost anything may lead "accidentally" to conversion, rather as "running a man through may save his life, as it has done by chance, opening a lurking imposthume. But will you say, therefore, that this is lawful, justifiable chirurgery?"15 Moreover, forced attendance is more likely to lead to hypocritical conformity than to genuine conversion. Locke's claim that the link between attendance and conversion is "accidental" may at first seem excessive (as Proast complains16). Conversion is the intended consequence of making church attendance compulsory, whereas surgery is not the intended consequence of running someone through with a sword. But the word accidental should be taken in its scholastic sense to mean the opposite of "essential." The essence in question belongs to a certain conception of law, a topic to which Locke repeatedly returns. To make a law is to define a fault and to prescribe a penalty for committing the fault; one avoids the penalty by avoiding the fault. In this case the proposed penalty is a fine for nonattendance at the established church; it can be avoided by attending church, even though the justifying objective is not bare conformity but serious consideration of religious doctrine. To punish something other than the fault that the lawmakers hope to correct is inconsistent with the ordinary operation of law.1? This concern of Locke's is enough to show that his reply to Proast is not merely pragmatic, or based just on the contingent fact that persecution probably will not work. It is cast in terms of what is "essential," or 14. 15. 16. 17.

Waldron, "Locke: Toleration and the Rationality of Persecution," 84. Locke, Works, 6:69. Proast, Letters Concerning Toleration (2), 17. Locke, Works, 6:243, 249-50, 393, 533.

The Argument from Belief

21

"proper," or "natural"18 to the rule of law. But in so replying Locke changes the question. He answers a challenge posed in terms of instrumental rationality by introducing an issue of conceptual rationality—the issue of what belongs to the conceptual structure of law. Locke also defers his reply to Proast's critique by posing two further questions: why is the conceptual structure of the rule of law important, and why should we accept its constraints? In order to situate this first response, it is useful to consider some of the relationships between Locke's arguments, of which there are many. In the original letter one could probably distinguish about a dozen different arguments, though some are obviously subordinate or supplementary to others. What Waldron takes to be Locke's "main line of argument," the argument from belief, is actually the second of three arguments that Locke presents as a summary of his case for holding that "all civil power, right and dominion is bounded and confined to the only care of promoting [civil] things; and that it neither can nor ought to be extended to the salvation of souls."19 The first is that "the care of souls is not committed to the civil magistrate any more than to other men: "it appears not" that God has committed it, "nor can any such power be vested in the magistrate by the consent of the people, because no man can so far abandon the care of his salvation, as blindly to leave to the choice of any other, whether prince or subject, to prescribe to him what faith or worship he shall embrace." This in turn is because the "power" of true religion (its power to save) consists in "inward and full persuasion," and it follows that we have no interest in consenting to anyone's having the power to impose upon us a faith that we have not "inwardly" embraced. The second argument, which we have seen already, concerns the "impertinence" of penalties. The third concerns the improbability that a government will find the true religion, since only one is true and so many are false. Even if we considered it both proper and possible for governments to impose a faith, we would not want them to do so because they would probably impose the wrong one.20 May we set aside the third argument because, as an argument from probability, it belongs prima facie to the realm of "pragmatic" or contingent arguments that do not really oppose "intolerance as such" but only

18. Ibid., 393. 19. Ibid., 10. 20. Ibid., 10-12.

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The Career of Toleration

things that can go wrong when you try it? 21 The matter is more complex than that. It is a contingent event that one does or does not die in playing Russian roulette, but it is more than a contingent fact that Russian roulette is risky: it is inherently risky. Can it be said that it is an inherently risky matter that states should be invested with religious authority? Perhaps, but the analogy is defective. Russian roulette has to be defined in a way that entails risk: one cannot play a health-conscious version of it with a revolver that is empty, or a pessimist's version with all six chambers loaded, for it would no longer be Russian roulette (or indeed a game). But risk is not built into the concept of the state in the same way, and states may be thought (by some) to vary decisively in their capacity to find the truth. That is certainly the view that Proast would take. He has available to him a whole theology that argues for the apostolicity of the Church of England and the Tightness of its doctrine,22 and an argument that treats states as interchangeable items in a probability set will not work against his case. As for the first two arguments, an interesting question arises. Is it redundant to say both that governments are incapable of inducing worthwhile states of belief and also that we would not give them the power to try, because they cannot do it? To appeal to what a reasonable person would agree to is simply to appeal to reasonableness. And if it is reasonable that states should not have a certain power, then one adds nothing by saying that reasonable people would think so, while if the people who are supposed to deny consent are not reasonable, then what they would agree to is anyone's guess. So what does the consent argument add? It seems to add an additional level of stringency in the relevant case of processes in which the agent's beliefs are to be altered. It is a case in which one would not consent in advance even if one would consent after the fact, one's mind ex hypothesi having been changed. Jon Elster has discussed such situations in terms of what he calls "technologies for self-management."23 It is true that one cannot directly will oneself into certain states of mind; but one can place oneself by will in a situation that will lead to a certain state of mind, if that situation contains a "technology" known to work on one's state of mind in the desired way. We may further imagine a "sub-technology" that would erase all memory of the decision to employ the technology, and of the technology's opera21. Waldron, "Locke: Toleration and the Rationality of Persecution," 72. 22. See Champion, The Pillars of Priestcraft Shaken. 23. Elster, Sour Grapes, 53-60.

The Argument from Belief

23

tion. Applying this to Locke, it is true that we cannot will a condition of "inward and full persuasion" if in fact we do not have it; nevertheless, we can by will place ourselves under the jurisdiction of a state that employs techniques such as compulsory observance and censorship in order to lead its subjects to persuasion. That these techniques are coercive would become less apparent as alternatives to the regime became less credible. In this way one could come to have "full persuasion." Whether it would make sense to consent to such techniques is another question. Retrospectively, those who do could be content; Prospectively, however, they would want to know not just that they would be content but that they would have good reason to be content; that die process that led to their persuasion made use of relevant reasons and only of relevant reasons. The fact that, at the end of the process, they would not know the difference is irrelevant to the choice diey would make about whether to begin the process or not. If one takes the argument from belief in conjunction with the argument from consent, as Locke does in the first part of his three-part summary, then some of the objections to it become much weaker. It is this prospective standpoint that the requirement of consent brings into play. And from that standpoint one would refuse the potentially successful "moderate" technology that Proast supported no less than the manifestly unsuccessful "fire and sword." A second initial objection to the argument from belief concerned the issue of relevance. The argument presupposes that states care about inducing genuine change in people's beliefs. But perhaps they don't. Perhaps they just want outward observance, for whatever reason—because it impedes the spread of minority views, or because it makes for order, or even because the rulers hold religious views that themselves place more weight on observance than belief. Related to this is the further objection that the argument from belief neglects the massive structure of external pressures (whether direcdy political or legal or more diffusely "social") that in reality goes into the formation of people's beliefs. If the argument from belief assumes that people make up their minds, or should do so, by means of a sort of autarchic reason, does it not set a Utopian standard that few people ever meet and that is remote from the manner in which shared beliefs are reproduced?24 24. For a forceful statement of some of these objections, see Brian Barry, "How Not to Defend Liberal Institutions," in Douglass et al., ed., Liberalism and the Good, 44-58.

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The Career of Toleration

Part of this case responds to the contractualist argument noted in the previous section. Waldron objects that Locke attaches too much importance to the way beliefs are acquired; for beliefs that are acquired by means of political influence or social pressure "function" no differently from the same beliefs acquired by other means.25 We can see, though, that from the standpoint of the potential victim of persecution, these objections have no weight. If I am forced to look at snow I will still see that it is white, just as if I had looked, autarchically, out of curiosity. But why should I consent to be forced to look at snow? And why should I consent to a process that will produce beliefs that are no more authentic than those I would otherwise have, however questionable their authenticity might be? To the extent that states do have the power to control or influence the beliefs of their members, this consideration becomes stronger, not weaker, just because there is more reason to fear the attempt, hence more reason to deny states the authority. As for Locke's alleged belief "utopianism," as it may be termed, it is actually Locke who objects to the utopianism of Proast's case. Proast justifies his moderate penalties against dissenters as ways of making them "consider." Where dissent carries a cost dissenters are more likely to reflect carefully on their beliefs, which is to their benefit whatever the outcome of their reflection. Locke claims that this imposes an unrealistically high standard of reflectiveness. "It would shake a great many Christians in their religion, if they should lay by that prejudice, and suspend their judgment of it, until they had made it out to themselves with evidence sufficient to convince one who is not prejudiced in favour of it; and it would require more time, books, languages, learning, and skill, than falls to most men's share to establish them therein."26 This is an intriguing reversal. There are aspects of belief, Locke implies, that may not be fully defensible to unsympathetic critics: some things can be shared only among those who share prejudices or assumptions set beyond critical discussion. In religion as in politics there is a need for "trust"—we cannot forbid people "to rely on the learning, knowledge, and judgment of some persons whom they have in reverence or admiration."27 The objection to 25. Waldron, "Locke: Toleration and the Rationality of Persecution," 82-83. 26. Locke, Works, 6:298. This theme is also pursued in the later Reasonableness of Christianity; see Works, 7:146, 157-58. 27. Ibid., 6:298. See also Locke, Essay Concerning Human Understanding, Bk. 4, chap. 20, 709: those who are forced to be "of the Religion of the Country" are in a worse position than people who are "not at liberty to... chuse the Physician, to whose Conduct they would trust themselves."

The Argument from Belief

25

persecution, then, is not just that it discourages people from grounding their beliefs on exhaustive enquiry—a high standard to set, indeed—but that it also prevents people from following examples that they revere. Alternatively, it does so while confirming the majority in all its "prejudices," so that critical reflectiveness, taken as a standard of belief, is likelier to be pursued under a regime of tolerance than of persecution. It should be said that the main part of the case is not at issue between Locke and Proast. Proast nowhere suggests that anything less than a sincere conversion should be the end of imposed conformity. Nor does Locke provide an argument against the pursuit of mere conformity by states: he mentions conformity only, and often, as a reductio ad absurdum of persecution, an objective beyond the pale of intelligible politics. In saying so, he is presumably relying on common ground with his opponents. Addressing himself to Proast, he says, "You profess yourself of the church of England, and, if I may guess, are so far of it as to have subscribed the XXXIX. Articles.. .By the thirteenth article of the church of England, you hold, that 'works done before the grace of Christ, and the inspiration of his spirit, are not pleasing to God; forasmuch as they spring not of faith in Jesus Christ.'"28 As for the Hobbesian case that public order requires the sovereign to impose uniform belief regardless of its authenticity, Locke believes it is self-defeating. To demand conformity is in fact to invite disorder: "What two thinking men of the church of England are there, who differ not one from the other in several material points of doctrine? Make but one of these points the Shibboleth of a party, and erect it into an article of the national church, and they are presently divided... Who I beseech you is it in this case who makes the sect? Is it not those who contract the church of Christ within limits of their own contrivance?"29 Here Locke is criticizing himself as well as Hobbes, given his earlier defence in the Two Tracts of the state's power to impose order in "external" matters.30 Locke's new position is that people have such strong convictions, even on ritual matters of apparent indifference, that to impose conformity is to damage rather than to promote unity. "Not to kneel at the Lord's supper, God not having ordained it, is not a sin... But to him 28. Locke, Works, 6:397. Schouls (Reasoned Freedom, 196) claims that Locke "ridicules" this article, but I see no textual basis for this. 29. Locke, Works, 6:238. 30. Locke, Two Tracts on Government, \ 75: "The supreme magistrate of every nation what way soever created, must necessarily have an absolute and arbitrary power over all the indifferent actions of his people."

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The Career of Toleration

who thinks kneeling is unlawful, it is certainly a sin."31 For various reasons, a diversity of views about matters of worship is ineradicable: "The tempers of men's minds; the principles settled there by time and education, beyond the power of the man himself to alter them; the different capacities of men's understandings, and the strange ideas they are often filled with; are so various and uncertain, that it is impossible to find that evidence... which one can confidently say will be sufficient for all men."32 Perhaps there is a tension between Locke's view that "the temper of men's minds" leads them to deeply held ideas about the fitness or unfitness of items of ritual, and his conviction that such things are a matter of indifference. But as Abrams points out, Locke is concerned not with the defensibility of scruples about ritual but with the "simple social fact" of their existence.33 People (or some people) simply are scrupulous, and we must take account of their own scrupulous conclusions in matters that primarily concern themselves. Since enforced conformity was advanced, by Locke himself as well as by writers such as Proast and Barlow, as a means of education, it is worth noting the importance of "tempers" in Locke's educational thinking. In Thoughts on Education he makes repeated reference to the different "tempers," "humours," and "constitutions" of children. While it is the famous "white paper" or tabula rasa passage at the end that is remembered, less attention is given to the qualification that precedes it: Locke speaks of "the various tempers, different inclinations" of children and adds, "Each man's mind has some peculiarity, as well as his face, that distinguishes him from all others."34 The tabula rasa passage is actually an apology: Locke writes, "/ considered [children] only as white paper, or wax, to be moulded and fashioned as one pleases"35; that is, he excuses himself for not considering the diversity of "tempers" that mould human experience and response. Locke invokes the issue of tempers both to argue that there is a limit to what scholastic education can accomplish and to

31. Locke, Works, 6:330; see also ibid., 153-55. 32. Ibid., 297. 33. Locke, Two Tracts on Government, 99. For a discussion of the history of the "indifferent things" controversy in the English Reformation, see Verkamp, The Indifferent Mean. According to Verkamp, some earlier Reformers took the view that, while matters of ritual were theologically indifferent, historical association may have made some items intolerably offensive (pp. 71, 75). 34. Locke, Works, 10:204. 35. Ibid., 205, emphasis added.

The Argument from Belief

27

furnish an objection to what Proastian national education proposes to do. What is at issue between Locke and Proast, then, is not sincerity of belief, on the importance of which they agree: it is Locke's sense of the radical and deeply personal diversity of liturgical taste, in contrast to Proast's idea of common standards of "decency" that a national church should provide. The consequence is that, since the topic did not explicitly arise, we do not know what Locke would think about a project to create insincere belief. That is of course a pity, but since good reasons in support of such a project are hard to find, Locke's omission seems excusable. The third initial objection to the argument from belief was that Locke himself did not consistently maintain that belief was beyond the control of the will. The evidence for this objection is drawn from Locke's Essay Concerning Human Understanding, which is examined in a superb account by Passmore.36 Beginning with a view that belief is formed in response to evidence, Locke introduces a series of qualifications that finally seem to overturn his initial position. He concedes that people may make up their minds on the basis of the evidence as they see it, not as it really is: they are guilty of a failure to enquire into the evidence as far as they should. He then concedes, however, that even those who possess all relevant evidence may still get it wrong, because the evidence gets in the way of their "powerful inclinations." How much is left, at this point, of the "evidence" model? Drawing upon some of the same passages in the Essay, Waldron extracts the negative implications for Locke's theory of toleration. In Locke's treatment of belief there is what he calls an "epistemic apparatus that surrounds and supports belief—the apparatus of selection, attention, concentration and so on," and this apparatus is open to influence by states, even though belief is not.37 So not only was Proast right ("indirectly," states can influence belief) but Locke should have known it. Two apparently minor points may turn out to unsettle this account, or at least render its conclusions more open-ended. The first is a matter of translation. In the Epistola de Tolerantia Locke wrote: "Ut hoc velud ille 36. Passmore, "Locke and the Ethics of Belief." For some critical remarks, see Tully, An Approach to Political Philosophy, 199-201. 37. Waldron, "Locke: Toleration and the Rationality of Persecution," 82.

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The Career of Toleration

verum esse credamus, in nostra voluntate situm non est." The Klibansky edition translates this as: "To believe this or that to be true does not lie within the scope of our will."38 For ordinary purposes the last nine words of that translation would serve as an adequate substitute for the last six words of Locke's Latin. But given the issues raised by Proast and later critics, the translation misses a crucial nuance. Locke wanted to say that the power to decide belief was not contained within the will, i.e., that I cannot will myself to believe something any more than I can will my heart to stop beating, or will myself to blush. Such a view does not imply that I cannot by will place myself in situations in which my heart will stop beating, or in which I (probably) will blush: to deny that is absurd. But making Locke's English say that belief is not "within the scope of the will" apparently commits him to an absurd position. Of course it is within the scope of the will to bring about changes in one's belief; all Locke wants to say is that such changes cannot be willed in the same way one can will oneself to go to bed earlier or read a novel a week or buy a new car. In consequence, Passmore's account, while enormously interesting, may impose upon Locke an obligation that he nowhere proposed to meet, while Waldron's critique is less devastating than it would be if Locke had said something slightly different. The second point concerns Locke's example of the jilted lover who resists the belief that his mistress is unfaithful and does so against all the evidence: "Tell a Man, passionately in Love, that he is jilted; bring a score of Witnesses of the Falsehood of his Mistress, 'tis ten to one but three kind Words of hers shall invalidate all the Testimonies. Quod volumus, facile credimus."^9 This is supposed to undermine Locke's view that when the evidence is in we cannot but be swayed by it (so that persecutors who want to sway us by other means are attempting the impossible). But an important distinction must be made here. Persecutors want their victims to hold a certain belief. Locke's jilted lover does not want to hold a certain belief; he does not just want to think that his mistress is faithful: he wants her to be faithful in fact. So the example of the jilted lover is disanalogous. The point is not affected by Bernard Williams's observation that belief is truth-oriented in that to have a belief is not just to have a certain item 38. Locke, Epistola de Tolerantia, 121. Both Passmore and Waldron cite this translation. 39. Locke, Essay Concerning Human Understanding, Bk. 20, chap. 12, quoted in Passmore, "Locke and the Ethics of Belief," 201. Locke goes on to translate the Latin tag as "What suits our Wishes, is forwardly believed," optionally choosing "wish" rather than "will."

The Argument from Belief

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in one's mind but to hold that the proposition contained in it is a true one.4° It is an important point, but it does not mean that Locke can be construed as saying that the man wants to have a (true) belief that his mistress is faithful. That would be the case in a different circumstance in which a man knew (on good grounds) that his mistress was faithful but was nonetheless haunted by doubts that he knew to be irrational: such a man could be said to want to have a (true) belief that his mistress was faithful. But Locke's jilted lover has no wants directed at his own beliefs at all. There are other situations in which for some reason it is essential not only that something be true but also that the subject should believe it. Pascal describes such a situation: there are good probabilistic reasons for believing in God, but people can benefit from the reasoning only if they really believe in God, so it makes sense to try to acquire such a belief, by going to church and so on. But this is almost the converse of Locke's example. Pascal's logic works if a person, not yet holding a belief, can grasp a set of reasons for holding it: Locke's case concerns a man who, not having grasped certain evidence, cannot form the belief arising from it. Passmore and Waldron raise some difficult issues for a theory of belief that is primarily "intellectualist" in that it excludes all elements of volition or preference from belief formation and pictures it, rather, in terms of response to relevant evidence. Locke recognizes a great many exceptions. While they do not, strictly speaking, contradict the formula offered in the Epistola de Tolerantia, they certainly point to a more complicated and interesting process than intellectualism allows for. However, it is not clear that this complexity has any bearing on the cases Locke is concerned with in his defence of toleration. Some cases are relatively clear. Proastian persecution offers a great insult, Locke says, to sincere and thoughtful dissenters who have arrived at their position reflectively and cautiously. Proast's "moderate penalties" have the avowed aim of making unreflective people "consider," but what supports the claim that the vice of inconsiderateness occurs only among the dissenters on whom the penalties fall and not among Anglicans, who escape the penalties? Given the incentive structure established by the penalties themselves, Locke argues, it is more likely that conformity is opportunistic and unconsidered than nonconformity. So the punishments will fall where there is no fault, and no punishment suffered by the innocent can be called "moderate." To the extent that Locke's concern is to protect reflective dissenters from 40. Williams, Problems of the Self, 136-51.

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the insult of unmerited punishment on the grounds that, having undertaken serious examination, they cannot think otherwise than they do, the more complex cases introduced by Locke's critics are without weight. But Locke does not say or imply that he is concerned only with the reflective dissenter. His is not a theory that idealizes the ways in which belief is acquired but one that seeks to protect people from having to live in ways that they have rejected. The stress falls heavily not on the question of how people initially make up their minds—a question to which Locke himself, as we have seen, admits a variety of answers—but on how minds are changed: "It is only light and evidence that can work a change in men's opinions."41 Locke can maintain that view while accepting everything his critics say about the complex and murky ways in which people come to have opinions in the first place. Is the argument from belief the "main line of argument" in Locke's letter on toleration as Waldron, following Proast, maintains? Locke twice makes fun of Proast for seizing on one argument as the main or crucial one for the purpose of demolition. In the second letter Locke objects to Proast's claim that "the whole strength" of the original letter consists in the argument from belief, "which I think you have no more reason to say, than if you should tell us, that only one beam of a house had any strength in it, when there were several others that would support the building, were that gone."42 Likewise, in the fourth letter, he complains that Proast arbitrarily declares the first few pages of the third letter to contain "its greatest strength," with the result that "what I have said there being baffled, it gives you a just triumph over my whole long Letter; and all the rest of it being but pitiful, weak, impertinent stuff, is by the overthrow of this forlorn hope fully confuted... Who can stand against such a conqueror, who, by barely attacking of one, kills a hundred?"43 Locke sometimes asserts priority among his arguments. For example, in the letter he appeals to the idea that religious doctrine is a matter of faith, not of knowledge, and that two rival churches will be unable to demonstrate their lightness to one another. But, he adds, "if it could be manifest which of these two dissenting churches were in the right way, there would not accrue thereby unto the orthodox any right of destroying the other. 41. Locke, Works, 6:1, emphasis added. 42. Locke, Works, 6:67. 43. Ibid., 550-51.

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For churches have neither any jurisdiction in worldly matters, nor are fire and sword any proper instruments wherewith to convince men's minds of error, and inform them of the truth."44 This gives priority to the argument from belief and the argument in terms of political legitimacy. But if we then ask what underpins the legitimacy argument, priorities become unclear again. Among several considerations that one could appeal to is the argument about the nature of faith: we would not give states the power to impose belief because they cannot know which beliefs are true. Or, by saying that imposition would be illegitimate even if we did know, has Locke implied that it is some other consideration that crucially underpins the legitimacy argument? And by putting the the legitimacy argument and the argument from belief side by side, has he also implied that the underlying consideration for legitimacy is something other than the argument from belief itself? Locke's texts on toleration are organized polemically rather than deductively, his points are lavishly overdetermined, often provided with several "beams" when one would do quite nicely, and there is no guarantee that detailed formal analysis would reveal a main argument or its major premise. It seems unlikely, though, that if there is a main argument it is the argument from belief, since the premise on which both Waldron and Proast (in their different ways) rest their case is mistaken. They both suppose that Locke takes the powers of a state to be determined by its power, that is, that the scope of state activity is governed by the capacities of its instruments. According to Waldron, Locke defines the state in terms of its means, the most characteristic being its coercive instruments— "fire and the sword," "rods and axes," "force and blood."45 Locke is thus depicted as a sort of proto-Weberian, defining the state as the monopolist of coercive power and deriving his case for toleration from the fact that coercive power is limited. Similarly, Proast demands Locke's assent to the proposition that a state must be entitled to do all the good that it can—"Doubtless Commonwealths are instituted for the attaining of all the benefits which Political Government can yield"46— that only its incapacities restrain its scope, and that once we have dealt with the argument from incapacity we have also dealt a final blow to restraint, and toleration. But there is direct and compelling evidence that Locke simply rejects this mode of argument. "The natural force of all 44. Ibid., 19. 45. Waldron, "Locke: Toleration and the Rationality of Persecution," 65. 46. Proast, Letters Concerning Toleration ( i ) , 18.

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the members of any society, or of those who by the society can be procured to assist it, is in one sense called the power of that society. This power or force is generally put into some one or few person's hands with direction and authority how to use it; and this in another sense is called also the power of the society."47 Proast, he says, systematically confuses the two, contending that because something is within a society's (factual) power it is also among its (legitimate) powers. But this ignores the whole issue of "direction and authority." And if we ignore that, we find ourselves unable to understand institutions at all. By Proast's account, Locke complains, "there will be no difference between church and state, a commonwealth and an army, or between a family and the East India Company; all of which have hitherto been thought distinct sorts of societies, instituted for different ends."48 It will be the business of the family to preach the gospel, or of the army to teach languages, and so on, because they have the power to do so. Obviously, then, it is important to Locke that the limits to an institution's role should be defined by something other than the empirical limits to its capacity. Locke's stress upon the coercive character of states does not belong within a Weberian positive sociology but within a complex of normative argumentation familiar to readers of the second treatise on government49 and summarized as follows in the Second Letter Concerning Toleration: The end of a commonwealth constituted can be supposed no other than what men in the constitution of, and entering into it, proposed; and that could be nothing but protection from such injuries from other men, which they desiring to avoid, nothing but force could prevent or remedy; all things but this being as well attainable by men living in neighbourhood without the bounds of a commonwealth, they could propose to themselves no other thing but this in quitting their natural liberty, and putting themselves under the umpirage of a civil sovereign, who therefore had the force of all the members of the commonwealth put into his hands to make his decrees to this end be obeyed.50 It is this argument that Locke relies upon in distinguishing his two senses of "power."

47. 48. 49. 50.

Locke, Works, 6:217. Ibid., 216. As Wootton points out in his introduction to Political Writings, 102. Locke, Work, 6:212.

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To examine the basis of Locke's contractualism, as offered in the second treatise, is to encounter assumptions that are different indeed from an "intellectualist" position that ascribes belief formation entirely to the impact of evidence. On the contrary, interest, in Locke's view, is all too often the governing factor. Partiality to our own interests is nothing less than the reason for the creation of civil society; for it is this that makes people unreliable interpreters and adjudicators of the law of nature, even when their reason discloses that law to them. They fail as interpreters because they are "biased by their interest," and as judges because "being partial to themselves, passion and revenge is very apt to carry them too far."51 Partiality, and the partisanship that is its most prominent and dangerous instance, are perhaps the greatest obstacles to a reasoned life. This is most vehemently expressed in the two final chapters of the Essay Concerning Human Understanding, which carry Locke's political analysis into the more intimate areas of belief, personal commitment, and faith. "If we could but see the secret motives, that influenced the Men of Name and Learning in the World, and the Leaders of Parties, we should not always find, that it was the embracing of Truth for its own sake, that made them espouse the doctrines, they owned and maintained." Turning to the religious case, he writes: "If anyone should a little catechize the greatest part of the Partisans of most of the Sects in the World," he would find that "they are resolved to stick to a Party, that Education or Interest has engaged them in."52 It seems incongruous, then, to take the intellectualism of Locke's argument from belief as nothing less than the basis of his case for tolerance since it goes against the grain of his first political assumptions as well as his mature general convictions about the human mind. The critique of partisanship is also important to the toleration debate. In the last paragraph of his second letter, Locke maliciously advises Proast not to make it so evident that he is writing for a party.53 This sting in the second letter's tail returns us to the beginning of the original letter, which addresses the topic of partisan interest. "If anyone endeavour to convert those that are erroneous unto the faith, by forcing them to profess things that they do not believe... it cannot be doubted, indeed, that such a one is desirous to have a numerous assembly joined in the 51. Locke, Two Treatises (2), sees. 124-25. The theme of "partiality" is explored at length by Abrams in his introduction to Two Tracts. The first and second treatises will be specified as (i) or (2). 52. Locke, Essay Concerning Human Understanding, Bk. 4, chap. 20, 719. 53. Locke, Works, 6:137. See also ibid., 95, 99, 129, 308.

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same profession with himself; but that he principally intends by those means to compose a truly Christian church, is altogether incredible."54 The three basic arguments that Locke then sets out—the second being the argument from belief—demonstrate that persecution is mere partisanship and therefore illegitimate. As far as the argument from belief goes, Locke's first point is essentially this: Because belief cannot actually be coerced, we must look into the motives of those who try to coerce belief, because, if they are rational, they cannot be doing what they say they are doing: most likely, we shall find partisanship at the root. This is not to claim that Locke has nothing more to say about the argument from belief. But it is to claim that we should bear the point in mind in thinking about possible hierarchies among Locke's ideas, and that the argument from belief should be examined not on its own but in conjunction with other components of his case.

54. Ibid., 8.

2

Locke, Toleration, and Public Reason

As we have seen, Locke's case against the rationality of persecution is often identified with an argument about the nature of belief. In A Letter Concerning Toleration and later writings, Locke is said to have put forward the claim that it is pointless or self-defeating for states to try to control beliefs by methods that act on the will since what we believe is not controlled by the will. In the previous chapter, I examined the status of this claim in Locke's argument and the strength and relevance of some important critiques. In this chapter I want to examine a different claim: that religious persecution is irrational because it is inconsistent with the public use of reason. This claim, developed by Locke principally in the later letters on toleration in reply to Proast's attacks, captures far better the argumentation behind Locke's view that the imposition of religious conformity is not a goal that can "with reason" be pursued.1 What he says about the nature and incoercibility of belief forms only part of a larger structure of thinking, and to take his view of rationality from that standpoint alone is to falsify it. To my knowledge, Locke nowhere uses the term "public reason," but his argument has a good deal in common with what others in a broadly "contractualist" tradition mean by the term: it is an element in practical reasoning about the conditions of political association. I shall begin by outlining the different notions of "public reason" put forward by Kant and Rawls and raising two important objections to them. I will then show that Locke's understanding of the public use, as distinct from the public orientation, of reason that may be termed "public" exempts him i. Locke, Works, 6:215, emphasis added.

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from these objections. The most important textual basis for this claim is Locke's second reply to Proast, the Third Letter Concerning Toleration.

Kant's essay "What is Enlightenment?" is generally cited as the source of the idea of public reason. "By the public use of one's own reason," Kant writes, "I mean that use which anyone may make of it as a man of learning addressing the entire reading public."* The two qualifications in the sentence do not concern us here since they have no bearing upon the contrast Kant then poses with the "private" use of reason: "that which a person may make of it in a particular civil post or office with which he is entrusted."3 Perhaps provocatively,4 Kant abandons the conventional denotation of civil offices as "public" and uses the term to refer instead to an audience limited only by its capacity to receive communications ("reading" public). To bring out his point, he says that a clergyman (assuming clerics to be civil appointees) must teach the doctrine of the Church to his congregation, even if he has reservations about it; for he is employed to teach not "at his own discretion" but "in someone else's name"5—that is, he is limited as well as empowered by the authority of his appointment. But if the clergyman is also a scholar, "he is completely free as well as obliged to impart to the public all his carefully considered, well-intentioned thoughts on the mistaken aspects of [his church's] doctrines."6 In his civil capacity, Kant's clergyman has to accept all kinds of constraints arising from the fact that he is not, so to speak, his own person but an agent of some larger institution. What is distinctive about public reason is that the only constraints he must or can or should recognize are those he sets by his own carefully considered, well-intentioned thoughts: he owes this to those whom he is addressing, just as he owes something less open-ended to an audience with predefined beliefs to which he is appointed to minister. Public reason, then, is unconstrained reason, reason that is obliged to recognize only its own conclusions, whereas private reason has to respect civilly predefined limits. Kant's main concern is that somewhere there must be a place where reason confronts only itself, or where nothing counts except good 2. 3. 4. 5. 6.

Kant, Political Writings, 55, emphasis in original. Ibid., 55. See Laursen, "Subversive Kant." Kant, Political Writings, 56. Ibid.

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reasons.7 As long as there is such a place, other kinds of reasoning can be constrained by civil needs. In that sense, "intellectual freedom" is more important than "civil freedom." Indeed, "a lesser degree of civil freedom gives intellectual freedom enough room to expand to its fullest extent";8 for if civil matters are insulated from public debate, then public debate can be unregulated and uninhibited. This statement must, however, be set in the context of Kant's larger developmental conception, according to which the disposition to "think freely," while likeliest to be acquired in a context of relative civil unfreedom, will eventually provide the foundation for a politically free order in which common affairs will be determined by the public use of reason. Despite its important political meaning, Kant's understanding of public reason is more than a political conception: it also expresses an ethics and an historical anthropology. It is a "comprehensive doctrine" from which Rawls rightly seeks to distinguish his idea of public reason as described in Political Liberalism.9 Kant's argument, like (for example) J. S. Mill's, provides one of the synoptic, meaning-conferring visions on which liberal politics may be founded. But the problem for Rawls is that in actual political society a good many such visions coexist, some of them liberal, others non-liberal but still "reasonable." The task of Rawlsian "public reason" is to identify conditions that adherents of all reasonable comprehensive doctrines can accept. Rawls's public reason thus bears very little resemblance to Kant's. It is predicated upon the hereand-now conditions of conflict and plurality, not upon the prediction of a transforming change in the conditions of human communication. It is political in the narrower sense of dealing with the conditions on which accommodation is possible. And far from being unconstrained, it is highly constrained in its scope of consideration and by the factual conditions that it is compelled to respect. Public reason, according to Rawls, is "public in three ways." First, it is "the reason of the public," that is, of citizens, people ascribing to themselves a common status as members of a political community; second, its subject is "the good of the public"—it is concerned not with the management of "non-public" associations such as churches or universities but with just decision making for a political order; and third, "its nature

7. See O'Neill, "The Public Use of Reason." 8. Kant, Political Writings, 59. 9. Rawls, Political Liberalism, 99— i o i.

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and content is public" in the sense that it is "open to view."10 The third of these features is, of course, consistent with Kant's "public use of reason." The second would be consistent only in some more highly developed future political order wherein civil affairs would be regulated by public reason—in present society, as we have seen, the public use of reason is contrasted with its civil use. The first feature imposes a condition that Kant does not. Kant does not partition the view-as-citizen from another view that may be held under some other status—a distinction that is quite fundamental to what Rawls attempts to do. Rawls's liberalism is essentially amphibian. We can form some assessment of the relation of Locke's most general account of the public use of reason to other views. In the discussion of reason in section 6 of the second treatise, Locke declares that it "teaches all mankind." This may be taken to correspond to a condition that Kant and Rawls, too, would subscribe to. It is the availability of reason that makes possible a self-governing human society whose members can adopt and apply for themselves a "law" that regulates their association. What reason teaches, above all, is the means to secure the general preservation of mankind: "Being all equal and independent, no one ought to harm another in his life, health, liberty or possessions," and "every one... ought he, as much as he can, to preserve the rest of mankind."11 This does not, however, differentiate the civil duty to pursue a common good from a general moral duty to other human beings, so we do not yet know whether we can apply Rawls's second qualification (concerning the public good), or, consequently, his third (regarding citizenship). Is Locke's a "political" or a "comprehensive" conception? The conventional reading of Locke's subsequent argument in the second treatise suggests a third position that is neither Kant's nor Rawls's. On the one hand, the starting point is clearly a general moral conception that deals, much like Kant's, with the problem of just cooperation among agents who are not subordinated to one another or otherwise coordinated by nature.12 Without this conception, and the entitlements and obligations it confers, the essential materials for Locke's political construction would not exist. On the other hand, Locke's argument demarcates a set of specifically political entitlements and obligations

10. Ibid., 213. 11. Locke, Two Treatises (2), sec. 6, 271. 12. O'Neill, "The Public Use of Reason," stresses this theme in Kant's essay.

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arising from the decision by some to form "one political society."13 While these presuppose the general moral conception that Locke calls the law of nature, they cannot be deduced from it simply because they also presuppose a conventional act, the incorporation of a civil society. For example, the first conventional entitlement to arise in Locke's account, the entitlement of majorities, is justified as necessary in the sense that it is entailed, Locke thinks, by the project of civil society itself: "It being necessary to that which is one body to move one way, it is necessary the body should move that way whither the greater force carries it, which is the consent of the majority."14 Locke goes at once adds that the majority decision passes for the act of the whole "as having by the law of nature and reason the power of the whole,"15 but that does not mean that majority rule is a law of nature. It means that by the law of nature the consent to form a civil society and the implications flowing from that creates obligations. The same goes for Locke's further institutional requirements. They are the conclusions of a mode of practical reasoning demarcated by a particular starting point that in turn generates particular kinds of constraint. Whether this is taken to be more Rawlsian than Kantian or the reverse is of no importance as long as the distinctions are clear. But what for the present purpose aligns Locke's view more closely with Rawls's is that for both, the demands of public reason may collide with other important demands. This grounds the whole topic of toleration. Public reason may oblige us, as citizens, not to do what, as believers, we think must be done. Rawls surely errs in denying his kinship with Locke on this point. He treats Lockean toleration as an example—the only cited example, in fact—of a case in which a specific moral conception happens to issue directly in liberal conclusions without the mediation of public reason. Locke believed in toleration, Rawls suggests, because of his particular conception of the nature of faith, which required (among other things) a true and inward acceptance that persecution was helpless to bring about.16 But that is as selective as Locke's argument from the incoercibility of belief. Locke weaves both threads into an argument that is grounded in his idea of public reason and that is intended to bear upon Christians and non-Christians alike: "the civil power is the same in every 13. 14. 15. 16.

Locke, Two Treatises (2), sec. 99, 333. Ibid., sec. 96, 332. Ibid., 332. Rawls, Political liberalism, 14511.

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place," in the Christian and non-Christian worlds,17 and what he offers in the second treatise and the letters on toleration is an account of the civil power as such, an account that gives immanent reasons for its limitation. It is surely evident that it should be limited because of what it is, not only because some or many or even all of its constituents hold certain views about faith. What it is is determined by what "a society of rational creatures" would consent to "for their mutual good,"18 and its end "can be supposed no other than what men in the constitution of, and entering into it, proposed."19

Any theory of "public reason," whatever its particular structure and goal, describes not only how public discourse should be conducted but also what must be excluded from it. But can this be done, or, if it can be, are the limitations imposed by public reason consistent with the principles of liberalism? It is more or less apt to speak of "public" reason depending on the extent to which the principles embodied therein can be generalized—the extent to which we wish others to act on the principles we propose to follow ourselves. If we cannot agree that others too should act as we do, then we are claiming some sort of privilege that cannot be given public justification. But as Gerald Dworkin points out, some things that meet the test of generalization fail nonetheless as liberal political principles.20 "Obey the one true God" can be generalized for people who believe in one true God, those who wish everyone to act on this rule and to obey the Deity. But in a religiously divided society the result would not be liberalism but civil war since, in following the same rule, different people would seek to impose different and rival beliefs. The principle is "nonneutral" in the sense that its application "is a matter of controversy for those whose conduct is supposed to be regulated by the principle in question."21 Could one group of believers object that the others were misapplying the rule, since they had not identified the one true God? They could, of course, object to what the others were doing; but this would not be an objection to generalizing the rule, unless it were an objection to any rule that it might be misapplied. The fact that a rule 17. 18. 19. 20. 21.

Locke, Works, vol. 6, 19. Locke, Two Treatises (2), sec. 163. Locke, Works, 6:212. Dworkin, "Non-Neutral Principles," 124—40. Ibid., 126.

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might be misapplied, however, does not and cannot prevent us from generalizing it. To both sides in the abortion controversy, the other side misapplies the term "murder," but the rule against murder does not become controversial as a result, or closed to public affirmation. So if misapplication is no argument against a candidate rule, what can protect us from the illiberal consequences of "non-neutral principles"? In a much-cited paper, Thomas Nagel tries to respond to the problem posed by Dworkin by employing the publicity criterion in a different way.22 In arguing that there are limits to what states should do Nagel appeals to the special character of coercive power upon which states rely. To justify the use of coercion, we have to appeal to an unusually stringent standard. "When we force people to serve an end that they cannot share, and that we cannot justify to them in objective terms, it is a particularly serious violation of the Kantian requirement that we treat humanity not merely as a means, but as an end."23 People can hardly object if we apply our own standards and beliefs in selecting presents for them, but they can certainly object if we apply nothing but our own standards and beliefs in imposing sanctions on them; for that extends our freedom at the expense of theirs. Of course, in both cases we apply our own standards and beliefs, which presumably, since they are our own, we take to be true. But there is a distinction, Nagel maintains, within the class of beliefs that we take to be true. Some depend on considerations that we cannot fully communicate to others—matters of "personal faith." Others derive from premises and implications that we can share, and only these can be the basis for proposals to use coercive state power. In the context of disagreement over the use of state power, you must "present to others the basis of your own beliefs, so that once you have done so, they have what you have, and can arrive at a judgment on the same basis."24 The test, it would seem, is not whether the others do actually agree, which would be to assign a potentially irrational veto, but whether one has given them all the reasons they need in order to agree. Not to have done so in effect requires others to behave in a certain way just because one has the belief that it is right, not because, for reasons available to them too, it is right. Such is the case, according to Nagel, with attempts to coerce people on the basis of religious beliefs, and also

22. Nagel, "Moral Conflict and Political Legitimacy." 23. Ibid., 232. 24. Ibid., emphasis in original.

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("in the present state of moral debate") on the basis of beliefs about abortion, sexual conduct, or the killing of animals.25 This is one possible way to assess the claims of "public reason." Some reasons meet the strong "public" standard that permits their imposition; others, while still meeting some lower standard of reasonableness, do not. If the distinction holds up, then it supplies what Nagel thinks we need: "something which is neither an appeal to my own beliefs nor an appeal to beliefs that we all share."26 The difficulty is, however, that the distinction does depend strictly on the beliefs of someone—someone who holds that ideas about sexual behaviour or vegetarianism are ultimately matters of personal faith. But in principle there is no reason to suppose that such ideas cannot be publicly defended. It is a good bet that no defence will be universally persuasive, but that is not the relevant test: the test is whether, from the standpoint of the believer, there is a way of distinguishing between things one has good reasons to believe and things that one has public reasons to believe. A good reason is a public reason. But where people might have more conviction about some of their beliefs than about others, the grading of those convictions will be too subjective and idiosyncratic to serve a public function. Even if we believed that it could serve a public function, the distinction would not have the political consequences desired by liberals, for the things they want to rule out or in are not distinguished in this epistemic way. Who could deny, for example, the role that personal experiences or images or conjectures play in our attitudes to such things as racial prejudice or private property? One critic comments, "In any sense in which I might think that others have no access to any grounds I might have for thinking homosexuality wrong, for example, I must also think they have no access to my evidence for thinking that racial prejudice or untaxed inherited wealth is wrong."27 The problem, then, is that too little or too much seems to be ruled off the agenda by the criterion of what is public. Dworkin's critique suggests that too little is ruled off, that manifestly illiberal and destructive principles qualify nevertheless as rules of public reason. Nagel, however, takes too much off the agenda, potentially everything in fact. Rather than consider how Kant or Rawls might respond to these objections, I want to

25. Ibid., 233. 26. Ibid., 231. 27. Dworkin, "Foundations of Liberal Equality," 2Qn.

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move on to the distinctive version of public reason offered by Locke, which seems to meet the various objections more robustly. The objections outlined above have a special relevance to Locke's defence of toleration. First, the issue of what Dworkin calls non-neutral principles is one that he had to confront directly in his long and exasperated exchange with Jonas Proast. According to Locke, the view that states can rightfully impose religious belief acts to the detriment of true belief. On the assumption that there is one true faith and many false ones, and given the empirical fact that the rulers of states hold many different beliefs, the outcome must be that false beliefs will be imposed more often than true ones. No one could suppose such a policy to be pleasing to God. Proast replies that his view was not at all that states could impose whatever beliefs were held by their rulers but that the true belief could rightfully be imposed by rulers who held it, and that he can hardly be held responsible for the effects of the different view attacked by Locke. This, then, is a classic example of exactly the problem discussed by Dworkin. Locke himself addresses it under the rubric of "orthodoxy": to say "that it is the orthodox church which has the right of authority over the erroneous... is, in great and specious words, to say nothing at all. For every church is orthodox to itself."28 This principle, according to Philip Abrams, is nothing less than the point of departure for Locke's "new politics" of toleration.29 Second, quite central to Locke's project is an emphatic distinction between the "civil" and other contexts of thought and action. In the original letter on toleration he wrote, "The commonwealth seems to me a society of men constituted only for the procuring, preserving, and advancing their own civil interests." He then gives an extended account of how civil interests differ from others, such as spiritual ones. There and in the subsequent letters he repeatedly relies on a contrast between civil and private matters, not only spiritual but matters of dress, diet, health, and personal consumption. And in the Essay Concerning Human Understanding there is an important discussion of the limits of "civil communication," a mode of discourse that Locke sees as essentially limited in its accuracy and scope.30 Thus, like Nagel's liberal, Locke is greatly in need 28. Locke, Works, 6:18. 29. Abrams, introduction to Locke, Two Tracts, 98. 30. Locke, Essay Concerning Human Understanding, Bk. 3, chap. 9, sec. 3, 476.

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of a way of determining convincingly what should or shouldn't be included in the discourse, or of a criterion of the "civility" of things. As we have seen, Locke's view of the civil agenda shares basic features with later ideas of public reason. An additional feature, however, emerges in the third letter, his second reply to Proast. To be fully public, a principle must not only be oriented to a public good and sustainable by anyone's reason: it must also lend itself to successful interpretation and application by members of a public. It must be our will that a candidate rule be generally acted upon, but we must also be willing for it to be interpreted and acted upon by others in the course of its practical application. In other words, we must will its generalization in the absence of interpretative authority, since there is no interpretative authority. As the Essay points out, there is no "standing rule" that we can appeal to in civil communication, essentially an anarchic and reciprocal process.31 Although the very purpose of civil society is to establish a standing rule, as the second treatise likewise puts it,32 by which our civil conduct can be regulated and adjudicated, it would be absurd to imagine that we could agree upon another, linguistic, standing rule to regulate the process by which we derived our constitutional "standing rule." There would be a logical regress; for we would need a constitution before we had one in order to establish a "standing rule" to govern the terms on which we made one. From this it may be possible to construct a distinctively public reason and to explain its limits. The terms of agreement must be made, and subsequently sustained, in the context of interpretative uncertainty: a public can be created, and can govern itself, only with a degree of interpretative congruence. Though stated abstractly, this problem may help explain an otherwise curious feature of Locke's critique of Proast. Proast, he complains, seems to suppose that he can not only announce principles but also interpret them for those who must apply them. If he wishes magistrates of the true religion to impose it, "must all other magistrates sit still, and not do their duty till they have your permission?"33 Proast assumes for himself a "plenitude of... power and infallibility."34 The magistrate can act only upon his "license,"35 and Proast "direct[s] the magistrate's 31. Ibid., sec. 7. A relevant contrast here is with Plato, Republic, 497 c-d, where the need for a standing interpretative authority is envisaged. 32. Locke, Two Treatises (2), sec. 136, 359. 33. Locke, Works, 6:146. 34. Ibid., 194. 35. Ibid., 366.

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hand in punishing."36 Regarding the Toleration Act, Locke tells Proast: "You seem not well satisfied with what the magistrates have lately done, without your leave, concerning religion in England. And I confess the easiest way to remove all difficulties in the case, is for you to be the magistrate's infallible guide."37 Proast "upon [his] own authority" calls for the use offeree, "which in effect is only to tell us, if the salvation of souls were left to your discretion, how you would order the matter."38 In determining a "useful" or appropriate penalty for nonconformity, Proast believes that he is "empowered to judge what degree of human means are necessary, but others are not39 ... Unhappy magistrates that have not your allowance!"40 But "they will hardly agree to make you their infallible umpire."41 Proast, says Locke, is "a man who would sovereignly decide for all the world what is the true religion, and thereby empower what magistrates he thinks fit, and what not, to use force42 ... If you say you are to be judge for the magistrates, I shall congratulate you to the magistrates of the world, if you will but please to publish it, that they may know where to find you."43 Finally, Locke demands that Proast should produce "your patent of infallibility and commission of superintendency over the belief of the magistrates of the earth, and [show] the commission whereby you are appointed the director of the magistrates of the world in their belief."44 The catalogue is repetitive and heavy-handed, and Locke seems to have detected in his adversary a misunderstanding of a very basic kind. He thinks that writing is power. He has not grasped the basic distinction between a self-enclosed activity like writing a book, and an activity like politics in which others act as well and do so on the basis of their own judgment. To write a political text is not to determine anything: it is to advance principles in the hope of influencing the judgments of others. But they cannot have such an influence if they are unintelligible, circular, internally inconsistent, or hopelessly elastic in their practical meaning. These are exactly the charges that Locke develops against Proast, 36. 37. 38. 39. 40. 41. 42. 43. 44.

Ibid., 368. Ibid., 425. Ibid., 435. Ibid., 441. Ibid., 514. Ibid., 531. Ibid., 545. Ibid., 557. Ibid., 565.

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and their often minute and relentless elaboration explains the astonishing length, as well as the irascible sarcasm, of the third letter. Proast calls for punishments great enough to prevail with rational people and lead them to conversion, yet not great enough to tempt people to abandon a religion they believe to be true: "However much you may be satisfied with them, I suppose others, when it comes to be put into practice, will by these measures, which are all I can find in your scheme, be scarce able to find what are the punishments you would have used."45 Circularities are pursued doggedly and at a length that forbids quotation. Essentially, Locke claims, Proast defines moderate penalties as penalties sufficient to change the minds of all but the perverse, while defining the perverse as those who resist moderate penalties; the topic "jargogle[s] your thoughts, and lead[s] you hoodwinked the round of your own beaten circle."46 Inconsistent formulations are tracked down, listed, and compared.47 As for excessive elasticity, the whole notion of the "true religion" to which Proast constantly appeals is politically empty, the equivalent of saying that the magistrate must punish people who depart from "right reason": "The magistrate can never punish any one, unless he be judge what is right reason; and then judging that murder, theft, adultery, narrow cart-wheels, or want of bows and arrows in a man's house, are against right reason, he may make laws to punish men guilty of those."48 The example makes Locke's general point very well: beyond the general and abstract tenets of natural law, we cannot appeal to reason as though it were a criterion, but only to our reasoning. Locke's public-rationality test, then, is not whether everyone could act on a principle but whether everyone could hold it. Applying the test of acting upon, one necessarily assumes a correct (as one sees it) interpretation of the principle—otherwise nothing could pass the test. But in applying Locke's test of public holding, one must also take into account how those who hold the principle would interpret it. It is a test that the proposed establishment of true religion would fail. This idea of public reason finds its home in a general theory of a selfgoverning society that requires its members to discover the basis, and limits, of trust: we put ourselves in the hands of other human beings whose employment of their reason will determine the circumstances in 45. Ibid., 277-78.

46. Ibid., 248. 47. Ibid., 167, 307, 340. 48. Ibid., 428.

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which we live.49 The issue of trust is fundamental for Locke and explains the creation of civil society itself. Although reason can identify common principles, the partiality of people to their own interests makes the execution of such principles erratic: public institutions are needed to make execution reliable. But there have to be some things that we can trust others to employ their judgment about, otherwise civil society, however necessary, would be impossible. To opt for an unrestrained sovereign would merely be to substitute one partiality for another. Rulers must be constrained by elected representatives or, in the last resort, by majorities of the people at large, who may have to make judgments about their continued obedience. This thumbnail sketch of the complex issues of legitimacy and revolution in Locke is enough to suggest the central place of the notion of public reason. The theory requires an idea of limited trustworthiness, limits being set by the imperfect agreement in our interpretative powers. Constitutionally, we want to limit the scope of "civil" interests to those that are shared and thus impose no excessive strain on our impartiality. Politically, we want policies whose application is largely independent of interpretative differences among those who execute them. Otherwise self-government is less a genuinely shared project than a spurious verbal game. It remains to explain how public reason thus understood can meet the objections cited earlier in the chapter. It seems, at first sight, that we have merely deferred Dworkin's problem of "non-neutrality." Dworkin himself considers the case of a moral theory that takes as its test the general holding of, as opposed to acting upon, a principle. But as he suggests, we still have not dispensed with the moral irrelevance of misunderstanding. If our problem is that some people who hold a given principle misunderstand it, our objection is surely to its being misunderstood, not to its being held: the blame does not fall on the principle itself. Rather, just as Proast says, it "will lie upon those who admit that Supposition [that their religion is true], where there is no just ground for it; who therefore must answer for the Consequences of it."5° Does this—to the dismay of liberals—make principles such as "establish the true religion" consistent with public reason? 49. The now-classic discussion is John Dunn, " 'Trust' in the politics of John Locke.' 50. Proast, Letters Concerning Toleration (2), 12.

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It is here that Locke is firmly aligned with the first of Rawls's conditions—that public reason is the reason of citizens. A distinction must be made between the moral logic of neighbourliness and that of citizenship.51 The moral logic of neighbourliness concerns a large number of actions taken in parallel, and the question is whether or not we are willing to allow a given principle to inform these actions. It is right, in this context, to insist that we test for the principle as it is rightly understood, whether by asking "what if everyone acted upon it?" or "what if everyone held it?" The test might validate a neighbourly rule of truth telling, for example, even if some people who hold the rule might take it to mean that they should telephone all their acquaintances late at night and tell them exactly what they thought of them. That it can be interpreted absurdly is no reason to think that truth telling is not a good thing. The moral logic of citizenship is different. What is at stake is not the parallel actions of many individuals but the acts of a state, which in turn will be governed by the scope of the powers assigned to it. Here it is relevant to give weight to the limits of human interpretative capacity; for if we assign to a state powers that exceed that capacity, we will all have got it wrong, and blame cannot be assigned simply to those who misinterpret. We have to examine the usefulness of a power "under the miscarriages and misapplications it is in common practice observed to be liable to."52 Our task is to find common principles that will withstand plurality of understanding. Although plurality of understanding (or misunderstanding) is merely a fact, rooted perhaps in the different "makes and tempers" of people's minds, the task of accommodating it is a moral one, rooted in the recognition of an equal human status. We are not, then, in the false position of rejecting moral principles for fear that they might be misunderstood: the plurality of human interpretation is among the facts that we must take into account before the principles of political morality can even be established. Political morality, as we have seen, has its point of departure in morality as such, but is distinctive in having to take account of human convention and its necessary implications. These implications have the status only of facts or conjectures, but unless our proposals can successfully negotiate them, they cannot achieve politically normative status, however compelling they may seem in some other light. 51. For Locke's distinction between "neighbourhood" and "commonwealth," see Works, 6:212. 52. Ibid., 192.

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How does Locke's position differ from the view that what is publicly reasonable is only what owes nothing to variable private convictions, and that public reason requires making a false distinction between what we have good reasons to believe and what we can publicly defend? To appeal, after all, to the different "makes and tempers" of human minds is surely to make use of the private and incommunicable features of ideas in order to exclude them from the public realm. There is a difference, however, between Locke's position, as presented here, and positions such as Nagel's that also depend upon the idea of privacy. The latter are immediately epistemic in character. They require their subjects to impose a boundary between their own sound beliefs and their publicly presentable beliefs—an implausible requirement. It will not do to replace this with the argument that what justifies a belief may nevertheless fail to persuade others; for all that counts, morally, is what should persuade reasonable others, and that is the same as what should justify a belief to the subjects themselves. If we substitute the test of what actually persuades others, we no longer have a principled argument, only a modus vivendi that lacks any moral weight against strong moral claims. The difference between Locke's proposal and these three unacceptable alternatives lies in the distinction between the facts that public reason must take account of, and the moral principle that it appeals to. Arising from the recognition of human equality, the idea of a self-governing society is an independent moral value at the core of Lockean public reason. Respect for others requires that we respect them in the exercise of their interpretative powers and advance proposals that we can still support even once they have passed through the filter of public interpretation. That some proposals we might otherwise favour would fail this test casts no doubt upon their epistemic status. Locke uses the example of mental arithmetic: "It is demonstration [i.e., demonstrable] that 31876 is the product of 9467172 divided by 297, and yet I challenge you to find one man of a thousand, to whom you can tender this proposition with demonstrative or sufficient evidence to convince him of the truth of it in a dark room."53 In other words, what governs the communicability of proposals is not the same as what governs their truth. All kinds of factors that might prevent us from communicating an idea have no bearing on its demonstrability and do not relegate the idea to the realm of "private" conviction. Conversely, one can easily imagine 53. Ibid., 297.

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"private" ideas that might be quite widely communicable, because the images or experiences that prompted them happened to be widely shared. Millions might sight Elvis and communicate successfully about it, but that does not make their belief truer than the right but not easily communicable answer to Locke's problem of mental arithmetic. To give such prominence to Locke's idea and conditions of self-government may seem surprising to interpreters who are instead inclined to stress the rights-based character of his theory. Sheldon Wolin, Charles Taylor, and others see Locke as the theorist of the private life, concerned above all to protect bourgeois freedoms or "atomism," champion property rights, and make the world safe from democracy.54 This chapter suggests a different view. It is well known that Locke does not offer a general right to toleration. Not only do some people, such as Catholics and atheists, clearly not enjoy that right but those who do enjoy it only conditionally: tolerance must be consistent with the public good. While Locke clearly rules out some reasons for intolerance he clearly does not rule out that one. So what he offers, in this regard, is not a rights-based perspective in which certain guarantees are made regardless of their policy costs but a theory of public policy in which rights are residual. We may not, for religious reasons, prohibit animal sacrifice, but if "the interest of the commonwealth required all slaughter of beasts should be forborn for some while... who sees not that the magistrate, in such a case, may forbid all his subjects to kill any calves for any use whatsoever?"55 If rights to toleration, although residual, are strongly protected, that is only because strong constraints are built into Locke's understanding of the scope of public policy by the way he frames the idea of the state itself. Although set within a frame of natural law knowable by human reason, con testable judgments about the public good must be made. Rational principles that are agreed upon can lead to severe disagreements over their application because of partiality and the uncertainties of language, which reinforce one another. Yet there is nothing to appeal to beyond judgment itself. By nature there is no judge upon earth;56 by 54. See Wolin, Politics and Vision, chapter 9, and Taylor, "Atomism." 55. Lake, Works, 6:34. 56. See Grant, John Locke's Liberalism, for the importance of this theme: "Locke's description of the political problem begins with the observation that men have no common judge on earth" (p. 7).

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convention we can establish a judge; but we cannot by convention abandon our judgment. "If true religion could appear in person, take the magistrate's seat, and there judge all that rejected her, something might be done. But the mischief of it is, it is a man that must condemn, men must punish."57 That in the last resort public judgment can be constrained only by itself is Locke's parallel to Kant's understanding that in the last resort only reason can constrain itself. The two perceptions are not convergent because of Locke's distinction between civil and philosophical language: we cannot expect the conclusions of the former to track the conclusions of the latter, and so we will want to create a space between the discourse in which we "stipulate with one another"58 and the discourse in which we "talk to ourselves."59 We must place ourselves in one another's hands, but we must be able to do so conditionally. Locke is certainly "aware of the limits of human capacities" and therefore offers "a cautious liberalism," as Ruth Grant maintains.60 I have suggested, however, that the reasons for Locke's caution should be sought not in his estimation of "the extent of human understanding" but in his estimation of the limits of public communication. Of course he held a narrow, even a partially sceptical, view of what humans could understand. But his view of shared political understanding is narrower still. Just because we need to govern ourselves, we have to take into account not only what we know but also how we can and cannot make ourselves known to one another.

57. 58. 59. 60.

Locke, Works, 6:428. Ibid., 224. Locke, Essay Concerning Human Understanding, Bk. 3, chap. 9, 476. Grant, John Locke's Liberalism, 204.

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Toleration without Scepticism

There is quite a familiar view, expressed in various forms, that the belief in toleration arises from a sceptical attitude towards knowledge. For example, in his well-known critique of A Theory of Justice, Gerald Dworkin argues that Rawls's liberalism, while claiming to depend on no particular epistemology, in fact rests upon a covert scepticism.1 The occupants of the original position, in deciding upon constitutional principles, are said to come to the conclusion that no one's vision of the good should be given a privileged position and imposed upon others. This makes sense and is attractive, Dworkin says, in a context in which it is generally held that visions of the good are unprovable. But would it really make sense if we thought that such visions could be proved right or wrong? Surely not, according to Dworkin; if we thought that there was a demonstrably right way to live, would we not want it imposed, whatever it was? Here, too, Dworkin parallels the case made by Proast against the Letter Concerning Toleration. You cannot argue for toleration, Proast says, unless you believe that "there are as clear and as solid grounds for the belief of false religions as there are for the belief of the true: or, that men may as firmly and as rationally believe and embrace false religions, as they can the true"; nothing else will "do your business."2 The difference between Dworkin and Proast, of course, is the rhetorical context. Dworkin is trying to show that Rawls's claim to neutrality is undermined by implied acceptance of a particular version of epistemology, while Proast is trying to show that Locke's claim to argue from the standpoint of a believer is 1. Dworkin, "Non-Neutral Principles," 124-40. 2. Proast, Letters Concerning Toleration (3), 7-

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undermined by an implied scepticism. The charge of scepticism is thus deployed to discredit the claim to neutrality in one case and the claim to commitment in the other. Yet the conceptual and political issues involved overlap considerably. The conceptual issue is whether it makes sense to say that a sceptic exercises tolerance. Tolerance is clearly manifest in cases where people have hostile views about something, as well as the power to suppress the object of their hostility, but do not do so for some overriding reason.3 If their hostile views are undermined by scepticism, as they should be, then the category of toleration seems out of place since, if people are not hostile to something, they do not need to explain why they do not use their power to suppress it; whereas the sceptic who does have hostile views about something simply presents an interesting case of psychological conflict. In other words, not all cases of acceptance are cases of toleration: people can accept things because they are in doubt about what to make of them, because they are altogether indifferent, because they are broadminded, or because suppression just isn't worth the cost. None of these reasons for acceptance are tolerant reasons. The political issue is whether it makes any sense to appeal to scepticism in trying to deflect persecutors from their path. Generally speaking, persecution is the work of people who entertain profound loathing or contempt for something or a conviction that it is irredeemably evil and destructive. There may be grounds for scepticism about their convictions, but how likely is it that they will find such grounds convincing, as they prepare to destroy their enemies, if they have not thought of them before? It is hard to know what, if anything, will persuade a fanatic, but "there is no truth" looks like a non-starter. So there are reasons to look carefully at attempts to impute scepticism to the liberal program. In Locke's case, it is especially important to do so. In the Essay Concerning Human Understanding he developed a view of knowledge that, while not sceptical, was narrow in scope, and he vigorously attacked "enthusiasts" who claimed certainty for beliefs that went beyond his narrow limits. It is tempting to suppose that he thought we should be tolerant for the same reason that he thought our claims about knowledge should be modest. This would oblige Locke to give some ground to Proast. Maurice Cranston suggests that Proast's criticisms "forced [Locke] to acknowledge a more sceptical attitude toward religion

3. For an earlier discussion, see Vernon and La Selva, "Justifying Tolerance."

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as such than he had previously admitted."4 Peter Nicholson thinks it is more accurate to say that Proast obliged Locke to rely more heavily on the sceptical elements in his case.5 It is also tempting to claim that it was Locke's reflections on the limits of knowledge that led to his remarkable change of heart between the writing of the Two Tracts and the first letter on toleration, since, intellectually, the main intervening event was the epistemological work undertaken in the Essay. This chapter first examines that claim and then moves on to broader and less narrowly textual issues. It is true that in the Essay and elsewhere—including the later letters on toleration—Locke so narrowly circumscribes the scope of "knowledge" that most religious beliefs (beyond the knowledge of a Creator, which he regards as demonstrable) fall outside its reach. But as with all Locke's arguments, his claims about knowledge must be placed in the context of his general case. Philip Abrams's introduction to Locke's Two Tracts on Government is the most fully explicated and carefully documented case for the importance of Locke's (partial) scepticism. Abrams sets out to explain how Locke's thinking evolved from the authoritarianism of his early writings to the later works on toleration, and he finds the answer in Locke's theory of the limits of knowledge. "So long as Locke felt secure in the possession of objective knowledge he was prepared to advocate authoritarian government."6 In 1660 Locke believed that the divine command that "all things be done decently and in order" (i Cor. 14:40) gave rulers a license to impose whatever standards they believed to be proper. He was led to this conclusion "in part by his feeling for the fragility of political order, in part by his asserted confidence that the magistrate's rulings on matters of virtue and vice could claim a superior... moral and epistemological status to those of his subjects."7 The latter element, however, became deeply eroded in Locke's thinking, both by his empirical observations of the partiality and fallibility of magistrates and by the philosophical argument of the Essay, which so sharply restricted the scope of demonstrable knowledge. "As he became more and more doubtful about the objective availability of moral knowledge, the equal status and partial nature of every 4. Cranston, John Locke, 367. 5. Nicholson, "Locke's Later Letters on Toleration," in Horton and Mendus, eds.,John Locke, 178. 6. Abrams, introduction to Locke, Two Tracts, 92. 7. Ibid., 94.

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man's subjective knowledge destroyed for him the authority of all possible forms of moral discipline."8 The mature Locke thus gives weight to the subjective certainties entertained by people because objective knowledge is not available. "Toleration follows from ignorance and partiality."9 Several things about Abrams's account require comment. To begin with, in two of the passages quoted here Locke's case stands on two legs, not just on a single epistemological one. The case for empowering magistrates to impose religion rests on fears about the fragility of order as well as on trust in the magistrates' cognition. The case for tolerance rests on the "equal status" as well as the "partial nature" of each person's understanding. This raises difficult questions about necessity and sufficiency of condition. In particular, would not Locke's belief in "equal status" be enough to support an argument for toleration, regardless of human partiality? Abrams ascribes crucial importance to the view that "men must think and know for themselves."10 But surely that holds whatever view we take about the availability of moral knowledge, as Locke himself suggests in his critique of paternalism. After asserting that each man must be the guardian of his own soul, he asks rhetorically: "But what if he neglect the care of his soul? I answer, what if he neglect the care of his health, or his estate.. .Will the magistrate provide by an express law, that such an one shall not become poor or sick?"1 L We reject the imposition of law in such matters, Locke believes, even where there is a clear and impartial standard. The reverse case—partiality without equality—is instanced by the first tract, and does not, of course, lead to toleration. So equality of status is the working argument here. As argued above, the passages that Abrams quotes from Locke's first letter on toleration are better read as juridical rather than as epistemic. "Whatsoever privilege or power you claim, upon supposing yours to be the true religion, is equally due to another, who supposes his to be the true religion upon the same claim; and therefore that is no more to be allowed to you than to him."12 This is not an argument against claiming to be right: it is an argument about claiming "privilege and power." From the standpoint of sincere personal enquiry there are forceful considerations that sometimes give us an inward assurance that we are right, 8. Ibid., 98. 9. Ibid., 106. 10. Ibid., 98, referring to the Essay Concerning Human Understanding, Bk. i, chap. 4, sec. 23, 19. 11. Locke, Works, 6:23. 12. Ibid., 94-95.

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but that assurance holds only for ourselves or for those who share our considerations fully. From a public standpoint, i.e., from the standpoint of what can be imposed authoritatively, coercively, and indifferently upon all subjects, we can recognize only the bare assurance of being right, and that, of course, can be experienced by people who hold differing and rival views. So the real issue is the distinction between a process of enquiry that is inwardly undergone, and a public procedure that distributes entitlements and duties to unassigned individuals without regard to particularity. One reason for making this distinction is the unavailability of objective truth (taken with the assumption that individual understandings would not, as a matter of fact, subjectively converge). But Locke himself tells us that there would be other reasons for making the distinction even if objective truth happened to be available to us. "There are propositions extant in geometry, with their demonstrations annexed; and that with such sufficient evidence to some men of deep thought and penetration, as to make them see the demonstration, and give assent to the truth: whilst there are many others, and those no novices in mathematics, who, with all the consideration and attention they can use, are never able to attain unto it. It is so in other parts of truth."13 So differences in understanding would do the work, without recourse to epistemology at all. Locke's insistence on this point should warn us against giving too much weight to changes in his epistemological theory. If they were primary to his case for toleration, why would he say they were dispensable? On another point, Locke's Two Tracts lend very little support to the view that the imposition of religion rests on belief in the availability of truth. In order to show that it is epistemology that makes the difference, Abrams has to present the earlier Locke as a sort of Platonist who entrusts the power to rule to those who know. "The ignorance, diversity and partiality of men is such that magistrates are the necessary agents of order. He thus argues partly from demonstrable ignorance, partly from presumed knowledge."14 But on the evidence of the Two Tracts themselves, Locke is quite far from relying on the "presumed knowledge" of magistrates. Had he done so he would not have had to insist that "outward conformity" was all the magistrate could require, his subjects quite reasonably holding different private opinions about what he imposed.15 13. Ibid., 537. 14. Abrams, introduction to Locke, Two Tracts, 80. 15. Locke, Two Tracts, 128.

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He would also have undermined the "voluntaristic" idea of law advanced, according to Abrams, by the Two Tracts since it would have made lawfulness depend not on the magistrate's will but on his cognitive capacity.16 And if law is will, why is it undermined by cognitive considerations? Finally, what Locke appeals to is not the cognitive superiority of magistrates but their interest. Addressing the "slippery slope" objection that if we allow magistrates to impose their views upon us there will be no limit to what they can do, he replies: "The magistrate's concernments will always teach him to use no more rigour than the temper of the people and the necessity of the age shall call for."17 Does not this appeal to interest (here and elsewhere), rightly stressed by Abrams, effectively topple any purely epistemological argument? If people have beliefs that spring from their interests, and if this is a fact of basic political importance, why does the epistemic status of beliefs matter crucially, from a political point of view? There remain the problems of "diversity" and "ignorance," neither of which seem to raise issues of scepticism. The diversity that concerns Locke—a diversity of views about "indifferent things"—does not, in Locke's treatment, entail claims about knowledge at all. It is because there is nothing to know about them that they are "indifferent," after all, and Locke's position on that point seems to be the same in 1685 as in 1660. As for "ignorance," it refers to what people actually know, not what they can know. In context, moreover, Locke uses the term to refer to the basic political illiteracy of the masses, their ignorance of such things as the essential prerequisites of political order and of the consequences of their own actions. It does not seem we have to contrast this with objective and demonstrable knowledge in the philosophical sense: all Locke's earlier argument needs is a simple contrast with elite prudence. Can we even say that Locke becomes more "sceptical," in the non-philosophical sense of the word, about elite prudence? Even that is unclear. In both the first tract and the second treatise, after all, he maintains that elite prudence has to be motivated by the fear of revolt: the magistrate knows that "too great checks...may make [the] untamed beast to cast his rider."18 If anything, we should say, surely, that Locke becomes less sceptical, in the non-philosophical sense, about the political

16. Ibid., 22. 17. Ibid., 158. 18. Ibid., 158.

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capacity of the people, who, in the second treatise are no longer a "beast" but themselves a force for prudence.19

If, despite all the above, scepticism were an important element in Locke's case for toleration, whose scepticism would it be? Who would have to believe in it, for toleration to work? If it is Locke who is supposed to have become more sceptical, the implications for his political thought would be unclear. Since he could scarcely impose belief in a theory of knowledge as a constitutional requirement, his political thought would have to deal with a world composed mainly of nonsceptics, many with strong convictions that they believed to be wellfounded, others just not caring whether they were well-founded or not. How one should take account of such people, knowing that their convictions are groundless, is a difficult question, but nothing follows from it for their behaviour, hence for predictions about their behaviour, hence for the design of political institutions. Once again, on Abrams's own account, Locke's predictions and political designs are guided by his political psychology, his belief in interest and partiality as the forces to be reckoned with in governing people. Although Locke's Essay can hardly be said to contain a psychological theory, his views about motivation are certainly consistent with what he says there. For he denies any direct connection between belief and action: if thinking led immediately to doing, we would spend every minute of our lives preparing for eternal life, the enjoyment of which, Locke says, so surpasses all other possible enjoyments that we should happily forgo them for its sake. But we do not, and therefore in addition to having a belief we have to have something else—uneasiness"—before the belief can be connected to the will. We have to be uneasy about the loss of something, not just rationally aware of it, before we can will ourselves to avoid it. 20 We have to know not only what ideas people have but also what they mind. So it is hardly surprising that Locke's changing views about toleration should be connected primarily with changing views about what motivates people, rather than with changing conceptions of knowledge.

19. Locke, Two Treatises (2), sees. 223-26, 414-16. 20. Locke, Essay Concerning Human Understanding, Bk. 2, chap. 21, sec. 29, 249.

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In Proast's 1691 pamphlet and Locke's 1692 reply—by far the lengthiest contributions by both authors—a particular issue assumes central importance. Locke argues from the beginning of the controversy that to empower rulers to enforce religious belief is to do more harm than good since most rulers are mistaken in their religious beliefs, so the imposition of their beliefs would damage their subjects' interest in salvation. In the original letter on toleration, for example, Locke asks: "What power can be given to the Magistrate for the suppression of an Idolatrous Church, which may not, in time and place, be made use of to the ruine of an Orthodox one?"21 Proast responds that what he had urged was not that any ruler might impose his beliefs but that rulers who have true religious belief might, or rather should, impose it. Locke then says that all a ruler can go on is what he takes to be true—indeed, he has a conscientious obligation to go on what he takes to be true—so that Proast's distinction between (rightly) empowering magistrates who know the truth and (wrongly) empowering magistrates who do not know the truth is entirely without force. In effect, Locke reasserts the view expressed in the passage quoted above from the 1689 letter: that in assigning powers we have to accept that a power granted in the hope of advancing a true purpose might be used in the service of a false one. It is this that leads to Proast's charge of scepticism. Belief in the equality of all religions is the "lurking supposition" of the theorist of tolerance. And there is something to be said for Proast's case. We may assume, after all, that the parties to a serious dispute believe in the truth of their positions, since to believe something (as Locke himself insists) is to believe it to be true. We must assume, therefore, that they want the true view to triumph. Why, then, would they not insist on a principle of resolution specifying that the true cause should defeat the false? If, for example, they are arguing over who is the true God, why would they not specify "Obey the true God" as the principle defining the proper outcome? And if, additionally, they had the power to settle the outcome, why would they not settle it in the way that they know is right? In this context Locke's distinction between being right and having a right finds its principal intended use. To give the king of England the power to enforce a state religion would also be to empower Lutheran and Catholic monarchs to do the same: "I do not say they judge as right," Locke carefully insists, "but they are by as much right judges."22 21. Locke, Works, 6:35. 22. Ibid., 221; see also ibid., 153.

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The two senses of "right" here are paralleled and reinforced by two senses of "judgment." The first use of "judge" is epistemic, a matter of determining what are good reasons for a belief; the second use is jurisdictional, referring to the existence of a legitimate power to hear causes, resolve disputes, and assign penalties. When Locke says in the original letter that "no judge upon earth" can decide religious disputes, it has to be the second (or jurisdictional) sense that is intended. For parties to a dispute do believe that there are (epistemic) judges upon earth—that is, themselves: "Everyone here must be judge for himself." Evidently it is not Locke's aim vainly to dispute a power of discernment that everyone claims to have, but to dispute the existence of a title to settle controversies by coercion. These distinctions, however, just displace the problem. Why should the matter be dealt with on the basis of rights rather than of what is right, or by procedural rather than epistemic judgment? Locke proposes an answer in the following passage from the third letter on toleration: But, sir, if you will add but one more to your plentiful stock of distinctions, and observe the difference there is between the ground of anyone's supposing his religion to be true, and the privilege he may pretend to by supposing it to be true, you will never stumble at this again; but you will find, that though upon the former of these accounts, men of all religions cannot all be equally allowed to suppose their religions true, yet in reference to the latter, the supposition may and ought to be allowed or denied equally to all men. And the reason of it is plain, viz. because the assurance wherewith one man supposes his religion to be true, being no more an argument of its truth to another than vice versa, neither of them can claim, by the assurance, wherewith he supposes his religion the true, any prerogative or power over the other, which the other has not by the same title an equal claim to over him. 23

There is a distinction, then, between the fact of there being a reason for believing X and the fact of my believing X. In a context of reasoning, the fact of there being a reason for X is compelling, and the fact of my believing it is epistemically irrelevant in the sense that my believing X adds nothing to the goodness of the reason for doing so. Likewise, someone else's not believing X does not mean that there is no good reason for believing it. But a situation of power, while it might involve the giving and challenging of reasons, is not itself a situation of reasoning, 23. Ibid., 420.

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i.e., one whose outcome is determined in a self-declaratory way by the success or failure of reasons; the fact of my believing X becomes crucially important if I am a power holder and someone else is not; for now the situation is defined not by the goodness of the reasons for believing X but by the distribution, among persons, of belief and disbelief in X. Persecuting power holders believe, presumably, that their reasons would be good ones even if they were not power holders, and so they should accept the point that persecution results not from the goodness of the reasons behind it but from the fact of who has power. Dissenters may say to their persecutors, "without that judgment of yours you would not have punished me"24; i.e., it is your making that judgment, not its truth, that is the explanans. Relations between reasons and subjects are epistemic; relations between subjects are right-governed. This has the following consequence for toleration. If I persecute you on the grounds that what you believe is false, I am implicitly making two claims, not one. First, I am claiming that there are good reasons for what I believe and only bad reasons for what you believe. Second, I am claiming that it is proper for me to put myself in the position of correcting you. And Locke's claim is that the properness of doing so has to be defended in terms of rules governing the relations between subjects, not rules governing the fit between reason and belief. But this, it could be objected, is just slightly mitigated scepticism since it works only if we make the relation between reason and belief an op tional one: a point also made in criticism of Rawls.2-5 If there is a good reason for me to believe X, then you ought to believe X too, and your disbelieving X is just an irrationality with no moral weight at all. Surely (it is argued) I can take something to be a reason for my belief while accepting that you do not see it only if there is some looseness between evidence and conclusion, so that several valid but contradictory conclusions are possible. But Locke's view is that the inability of other people to see reasons is no bar to my trusting in my ability to see them. As we have seen, Locke makes use of examples such as mental arithmetic to show that the communicability of a proposition rests on grounds that are different from those on which its truth rests. It is one thing to have a justified belief, and something else to succeed in persuading everyone of it;

24. Ibid., 187, emphasis added. 25. See Jones, "Liberalism, Belief and Doubl," 55—61.

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and since lack of success in persuading does not hamper success in justifying, the fact of dissensus does not entail scepticism. This point is important because unless it is given weight Locke's case looks like an epistemological one, and the structure of his argument is missed. It is true that Locke distinguishes matters of faith from matters of knowledge, declaring that items of faith cannot be demonstrated in the way that items of knowledge can be. But this is not the basis of his case, and he even denies that the distinction is important for the point at issue here. Elsewhere in the third letter he writes: "When you have demonstrated to any one any point in religion, you shall have my consent to punish him if he do not assent to it. But yet let me tell you, there are many truths, even in mathematics, the evidence whereof one man seeing, is able to demonstrate to himself, and so may know them: which evidence yet he not being able to make another see, (which is to demonstrate to him) he cannot make known to him."26 So whether in matters of knowledge or of faith it is not the lack of demonstrability but the lack of communicability, or demonstrability to someone, as Locke puts it, that has to explain the fact of dissensus. Others may be wrong because of limitations in their experience or their cognitive powers, or because of the dynamics of public opinion or partisanship, and this would be true even if religion, like arithmetic, were a realm of knowledge, which of course it is not. Nothing in Locke's argument depends upon undermining the persecutor's conviction that he is right; and while it is true that in the third letter, as in the Essay, he insists that religious belief is not a matter of knowledge, it is wrong to imply, anachronistically, that it must therefore be tentative.27 On the contrary, Locke's insistence forms part of a different case: that it is the claim that there is religious knowledge that, wrongly, promotes scepticism, for it invites a vain search for knowledge where none is to be found. 28 Locke is concerned to dissociate the conviction with which people hold beliefs from their epistemic status; they stake their salvation on beliefs far less well founded than some items of knowledge.29 One may stake more on the belief that the crucifix is an object of idolatry than on the fact that today is Sunday. And it is surely clear that in this context it is subjective conviction and not merely objective 26. 27. 28. 29.

Locke, Works, 6:425. Waldron, "Locke, Toleration and the Rationality of Persecution," 72. Locke, Works, 6:415. Ibid., 144.

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truth that counts: for people get to be persecuted because persecutors are convinced, not because they are right. But the objection can go deeper. Suppose it is granted that questions of legitimacy are distinct from questions of truth. Do we not still have to explain legitimacy, and, in doing so, are we not returning to the original question—why should we not be forced to be right? The objection runs as follows. There must be a reason why no one has a right to compel us. The reason is that rights to compel arise from consent. Locke supposes that we would not consent to be compelled. But if we thought that there was a possibility of being compelled to be right, why on earth would we refuse to consent to be compelled? We could of course turn directly to the argument that force cannot compel belief, but this is a broken reed for the reasons given by Proast and not directly refuted by Locke: force indeed cannot compel belief, but it can exercise a significant formative effect upon it. Why would we not want—rather like Pascal's would-be believer—to put ourselves in the position of being powerfully influenced to believe what it is clearly to our advantage to believe? Only (the objection runs) because we are sceptical about the availability of truth and therefore do not want to be coerced just because someone claims to have found it. It is at this point that Proast's critique of Locke merges with Dworkin's critique of Rawls. Suppose we were in a Rawlsian original position; suppose we knew that, once our society had been formed, the bearers of truth would be readily identifiable because, for example, they had extraordinary IQ scores, or red hair; why would we not want our society to impose the views of these paragons and agree to its having the legitimate power to do so? This is the essence of Dworkin's position: "If there were a truth and it could be ascertained, would those in the original position who contemplated the possibility that they would be the holders of false views regard their integrity as harmed by choosing that [they] should be suppressed?30 The resemblance of this to Proast's critique of Locke is striking; the "lurking supposition" of scepticism is detected in Rawls too. But Dworkin's critique takes a wrong turn, thanks to a conflation produced by his example. The possession of red hair may be taken as an infallible sign of truth, or as a convincing sign of truth, or as both at once, 30. Dworkin, "Non-Neutral Principles," 138.

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and however we take it the criticism runs into difficulties. If we ask whether people would agree to compulsion if there were infallible signs of truth, the answer is that they would not, because they have no guarantee that those who hold power would recognize the signs, (There are after all tyrants who violate the clearest precepts of natural law.) If we ask whether people would agree to compulsion because there were powerfully convincing signs of truth, the answer is again that they would not, for they would have no guarantee that what convinced people would be true. (Persecutions are sometimes supported by large convinced majorities.) If we ask whether people would agree to compulsion if there were signs of truth that were both infallible and universally compelling, the answer is that they would (although compulsion would then become pointless); but when two conditions are jointly necessary the applicability of either can be denied, and all one need deny is that the signs of truth are universally compelling, which is what Locke does. So there is no need to be a sceptic. One need only recognize the fact (or possibility) of dissensus. The fact of dissensus does not affect the question of truth any more than a hypothetical condition of consensus would. But it does affect the question of legitimacy because it affects the terms on which rational people would contract to obey, knowing that the views of others will determine what they will have to obey. Suppose, alternatively, that people in the original position were given a temporary illumination that "enabled [them] to know with certainty whether there is one right way to live, if so, what that right way is, whether there is a God, if so, what he requires of us, and so on," but that the veil was dropped again so that they would not know if their own ideas of lightness were the true ones: "What would people agree to under these conditions? Surely they would attempt to establish an order of things which would ensure that, as far as possible, they lived in accordance with the truth."31 But such an order would have to be one in which individuals, confident that there is a truth somewhere, would have the opportunity to sift without inhibition every piece of evidence that they could find. It would surely not be an order in which people would welcome an "authority"32 to lead them to the truth; for then one would have to revert to the core distinctions that Locke's argument requires. If this were an authority in the cognitive sense, a person whom one trusts to be right, the acknowledgment of such a figure is no less difficult and 31. Jones, "Liberalism, Belief and Doubt," 56. 32. Ibid., 56.

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perilous an exercise than the unmediated exercise of personal judgment about what is right. Or if it is to be an authority in the political sense, a person empowered to decide, one faces again Locke's question whether people have an interest in empowering a fallible person to decide for them? And surely one would still give Locke's answer to that. The case against Locke, like one of the cases against Rawls, is that his defence of toleration is contingent on the mere challengeable fact of the unavailability of truth; it is not a principled defence that holds good whatever facts one assumes.33 I have already argued that this critique misses a step in the contractualist argument, which is an argument about the conditions of political choice rather than epistemology. It has yet to be shown, however, that Locke has indeed offered a principled defence of toleration. If he has a principle, what might it be? At a crucial point in the first letter on toleration, Locke considers how things would stand if we did know; "if it could be manifest which of... two dissenting churches were in the right way, there would not accrue thereby unto the orthodox any right of destroying the other."34 The supposition is perplexing for the same reason that Dworkin's critique of Rawls is perplexing: "manifest" is ambiguous between "objectively demonstrable" and "universally accepted," and how it is taken fundamentally changes the meaning of the passage. What would it mean, concretely speaking, for the truth to become "manifest," since disputes about such matters obviously extend to what a sign of truth is? (Just how red is red hair?) But whatever Locke means, he could hardly make it plainer that he wants to distance his argument from directly epistemological premises. What he offers instead is a terse distinction between the jurisdictions of states and churches. Even a demonstrably orthodox church could not coerce, because it is part of the concept of a church that membership in it is voluntary; and while states can employ coercion, it is part of the concept of a state that it cannot concern itself with belief. Of course, this is not a freestanding argument, and one needs to have reasons for making this sort of basic distinction between churches and states.35 But surely Locke has said enough about epistemology and politics to explain why the distinction is

33. Waldron, "Locke, Toleration and the Rationality of Persecution," 84. 34. Locke, Works, 6:19, emphasis added. 35. Waldron, "Locke, Toleration and the Rationality of Persecution," 65—66.

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basic for him: it relates to the difference between beliefs that compel our agreement and institutions that depend upon our agreement. When Locke imagines Jonas Proast to be leaning over the shoulders of magistrates and earnestly directing their thoughts, he is presenting a caricature of the apolitical mind. But why is it apolitical? In the context of truth-seeking discourse, writers quite properly do lean over their readers' shoulders; for if a belief is true then it ought to be shared. One person's judgment includes another's, in the sense that if I judge something to be true it may be that this reflects some circumstance peculiar to me, but it can hardly be that I am judging that its acceptance depends on some circumstance peculiar to me; and so I must be supposing that its acceptance is appropriate for others too.36 Its acceptance, as Locke points out, is obligatory for those who see the evidence on which it rests. The rightness of a belief, therefore, must precede assent, since it causes assent; and obviously, it is not improved by the degree of assent that it wins. It follows that, in a context of truth seeking, the only obstacles to claims are internal ones, i.e., obstacles to belief directly experienced by the subject, as opposed to obstacles represented by the disagreement of others. All this is broadly in line with Locke's empiricism in stressing the decisive role of individual experience of evidence and probability. Each must judge reasonableness, and another's dissent has no force for one's own grounded convictions. More remarkable is that Locke is among those who evolved a view of politics that contrasts in several key respects with his own view of truth seeking. First of all, it is a view of political society (elaborated in the Second Treatise] in which one person cannot include another. Those who are purportedly included in another, by virtue of age, gender, or occupation, are for that very reason excluded from political personhood, since to be a political person is to represent oneself, not to be represented by someone else. Hence the family model of civil society, which effectively includes everyone in the monopolistic political personhood of the father-king, is false. Second, within limits that need not concern us here, consent, in a political context, is a cause and not an effect of lightness. The consent of a majority establishes the legitimate allocation of power, and so it follows that numbers do count here in a way that would be absurd epistemologically. Third, while in the truth-seeking context the fiction of a single mind may be assumed, each mind assuming that what it finds compelling ought to be binding on all, political society is constituted by a systematic 36. See Raz, "Facing Diversity," 38.

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set of external constraints in the form of rights, the effect of which is to sever the necessary connection between anyone's judgment of the rightness of an action and what that person should think about the legitimacy of its performance.37 Thus, at least in these three fundamental respects, a political institution differs qualitatively from a truth-seeking one, and the distinction between their roles is not a contingency resting on mere facts but arises from a conceptual difference. Politics distributes entitlements in a way that has no parallel in truth-seeking discourse; for in such discourse the notion of a person's entitlement is out of place since the relations between statements can be examined without reference to who it is that happens to advance them. One way of explaining Locke's theory of toleration is to set these two models, of belief and of politics, side by side, and to show, as this chapter tried to do, how the successive contrasts necessarily invalidate the claims of someone like Proast, who sees nothing distinctive about the political realm at all. Such an approach at least has the merit of explaining why Locke places so much stress on the conceptual difference between church and state—the difference between an association arising from the fact that a number of people find the same evidence convincing and therefore create a society expressing their shared experiences, and an association based on acceptance of the fact that, to receive social protection, one's interests must be defended on generalizable grounds, since the grounds require consent to be effective. On such a view, the case for toleration does not rest on a sceptical idea of knowledge that leads us to tell the fanatic that he might, after all, be wrong. The stress falls, rather, on the defence of a certain view of politics as a process different from that of understanding, and on a distinction between political legitimacy and other kinds of legitimacy that are conferred by an appeal to authority, or by a private illumination, or by an argument whose conclusion is taken to be self-evident. Locke's theory of toleration addresses people whose views rest on such compelling experiences. It tries to present them with a category of what we may call propriety, alongside but separable from the Tightness of an action, or of an action's ends. This Proast cannot see. He has to believe that any inhibition about acting must stem from doubts about the Tightness of one's ends. This view, stated with an enormous increment of 37. See Waldron, "A Right to Do Wrong."

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sophistication, still persists among the critics of Rawls,38 but whether it is stated in a naive or a sophisticated way, it suffers from two fatal defects. First, it is apolitical in assuming or obliging all actors to take as their point of reference a single perspectiveless notion of what is knowable or probable or unknowable, when in reality the political problem is that actors differ exactly in their perceptions of what is and is not certain. Second, it falsifies the specifically liberal idea of politics in imposing restraint only in cases where Tightness is uncertain. Locke, at least, is quite clear that some things that are known for certain to be wrong —idolatry, as we saw above, but also "covetousness, uncharitableness, idleness and many other things"39— are still not to be coercively prohibited. To ignore this, or to circumvent the accompanying political arguments by appealing directly to theories of knowledge, is to make unintelligible the core values of the liberal tradition. For in that tradition it is taken to be important that views are the views of someone, and that, while in some contexts this may be ignored, in the political context it may not. The relations between persons holding views cannot simply be reduced to the epistemic relations between the views themselves: in addition to epistemic Tightness or wrongness, there is the manner in which people constitute relations of command and obedience among themselves and assign and set limits to the power to judge in the jurisdictional rather than the epistemic sense. Locke's contrasts would lose their point if the difference between infrapersonal and interpersonal processes were to vanish; if all minds underwent identical experiences, drew identical inferences from them simultaneously, and resolved upon identical responses, all the while being mutually transparent. In that case collective decisions would have the sort of self-declaratory quality that individual convictions have, and the need to settle who has the power to declare what would not arise. There would be no need for anything beyond the simple cognitive senses of terms such as "judgment" and "authority." There would be no need to assign or limit jurisdiction because collective decisions would not differ from the process by which evidence and conclusion are related within an individual mind. Such a state of affairs must be viewed as contingently improbable rather than logically impossible, and to that extent we must see Locke's argument for toleration as contingent. But

38. See especially Nagel, "Moral Conflict and Political Legitimacy." 39. Locke, Works, 6:36.

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without the contingency that it assumes there would be no politics, since politics arises from what Rawls dubs "the plurality of distinct persons." Is this a "principle?" In a world that divides into facts and values it would have to be a fact, but it is not clear that Locke's manner of thinking fits that world. In the letters on toleration as in the second treatise, Locke is concerned with the conditions of human "preservation" and the political conduct that they require. He is engaged in practical reasoning that must necessarily take account of human circumstances in tracing and assessing the effects of rules of conduct.40 That human plurality and what follows from it are among those circumstances can hardly be denied. But account is taken of them in relation to a project that is moral as well as prudential in that it gives weight to the preservation of others as well as oneself. Such reasoning is thus a blend of normative and empirical generalizations, and which of these we are to call "principles" seems partly a verbal matter. But it would not seem obviously wrong to call something a "principle" if, having a basic status within practical reason, it is something we have to know in order to "preserve ourselves."

40. Cf. Aristotle, NicomacheanEthics, Bk. 6, chap i, cited in Basic Works, 1,023.

4

Slippery Slopes and Other Hazards

Earlier, I mentioned two general ways of setting limits to the scope of state power, the contractualist and the perfectionist. Contractualist theories—when they are concerned to limit state power—place restrictions within the concept of the state itself. Identifying the state as the vehicle of set purposes, they naturally find the limits of the state at the boundaries of those purposes themselves. Perfectionist theories, however, hold that states are justified in doing what they can to promote human flourishing and are limited in their scope only by the constraints of the instruments that they use. The first theory exemplifies the idea of internal limits, the second the idea of external limits. Internal limits are stronger in that they can be removed only if the operative concept of the state is itself revised, while external limits (even though in practice they might be quite stable) are in principle temporary and circumstantial. Mill, for example, arguing along perfectionist lines, claims that "the strongest of all the arguments against the interference of the public with purely personal conduct is that, when it does interfere, the odds are that it interferes wrongly, and in the wrong place."1 But Mill also hopes that our knowledge of social science will improve and that, if intelligently fostered, public enlightenment will spread: would this not sharply reduce the odds against the public being wrong and thus undercut "the strongest of all the arguments"? What we think about this prospect does not affect our concept of what the state is. Two kinds of arguments have special importance for perfectionists. The first kind, examined above, is about the self-defeating nature of some kinds of policy. States should not pursue policies that are irrational in the i. Mill, On Liberty, 152.

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sense that they cannot attain their stated objectives because, for example, the instruments at the states' disposal cannot do some things. Proast's misunderstanding is exactly that he takes the rationality argument to concern external constraints on the state while entirely neglecting the way it functions internally in Locke's political theory. The argument is not brought to bear on the acts of a constituted state: it is brought to bear in the constitution of the state. The second important kind of argument is the argument from the slippery slope, taken with various similar devices that, on examination, turn out to be rather different. Let us suppose that the state could indeed promote human flourishing by doing A, but that its doing so would in some way be inseparable from doing B, and B would not promote human flourishing. If B is at least as damaging as A is beneficial, we have a perfectionist case for restraining the state. But the example must be further refined before we arrive at the slippery slope. In the case just mentioned, B is a consequence of the very act that produces A. An act that is intended to, and actually does, promote public health, for example, may also involve an invasion of privacy that is damaging to self-esteem and to the sense of security, and hence may produce no net benefit in terms of the list of values that we favour, public health being only one. That is not a slippery slope, however, but a trade-off: we accept less public health for the sake of more privacy. A slippery slope case is one in which B is the consequence of an act that is other than A but that is the consequence of A. It is not that A would also produce B, but that doing A would in some way produce another action or stream of actions that would in turn produce B. The relevance of this to the case of toleration is immediately clear. Toleration involves the reluctant acceptance of things that one hates or despises. Indifference is not toleration, because it makes no sense to speak of tolerating things that one has no views about. Scepticism is not toleration, because it makes no sense to speak of tolerating things that one does not think can convincingly be shown to be wrong. Broadmindedness is not toleration, because it makes no sense to speak of tolerating things that one thinks are all right even if one would not do them oneself. To tolerate is to refuse to suppress something that one does have views about, that one does think is wrong, and that one thinks others would be better off not doing. The slippery slope argument fits this pattern very nicely. It does not require that one cast irrelevant doubt on one's belief in the Tightness of A, doubt that would render the notion of "tolerance" inapplicable. It only inhibits the pursuit of A, for the reason

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that pursuing A would also lead to B. It fits the model of tolerance because it leads people to decide not to suppress what their values tell them should be suppressed. It should be noted, however, that arguments with this structure are reversible and available also to the mtolerant. If we do not suppress A— which, let us say, is an innocuous evil—we shall be unable to suppress B, a definitely harmful evil, so we must not tolerate A. The argument is less natural to intolerant politics since the intolerant do not experience the same tension of one consideration pulling two ways that makes the argument so natural to the tolerant. But the intolerant are likely to use it in trying to persuade the tolerant. Later in this discussion I shall consider versions of the slippery slope used for both purposes. Suppose members of a neo-Nazi party plan to march through a largely Jewish community chanting offensive slogans and carrying offensive placards. How are we to understand the following objection to banning the demonstration: "If you do that, you will have to ban demonstrations that cause offence to people who believe in freedom of choice, or family values, or..."? It could be taken as an example of the generalization test in ethics: we ought not to act on the rule permitting X unless we are also willing that Y and Z, also permitted by the rule, should be done. But this is irrelevant for the present purpose because it is not a consequentialist argument, as slippery slope arguments must surely be ("if you do A, which is all right, then B will follow, and that isn't all right"). Moreover, the generalization test approach changes the whole emphasis. The basic worry behind the slippery slope argument is that by doing something good we will cause something bad (outweighing the good) to be done; the generalization test tells us that, if we cannot extend the rule to other like cases, then it is not good. It thus eliminates the very problem from which slippery slopes arise—that something good will cause something that isn't. So let us consider how the view expressed in the objection to banning the demonstration might be read in a consequentialist light. Is it a "blunt instrument" view (or what J. F. Stephen might call a "rough engine" view)? If so, we have to imagine that the government or court in question is somehow constrained to act consistently, or else (or in addition) that other governments or courts will somehow be led to act in a certain way by the decision in question being made one way rather than another. We have to assume precedential force. The argument

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then becomes: "Although you will succeed in your direct objective, A (a good thing), you will commit yourself to doing B (not a good thing) in the future, and/or you will commit others to doing B in the future." (We can imagine a weaker version in which "encourage" is substituted for "commit" in the last clause.) But if we believe that A is good, then the natural response is to try to narrow the grounds of the decision, so that it is no longer precedential in the way that is feared. Perhaps, for example, promotion of racial hatred is intolerable for reasons that do not apply in the case of other sensitive issues. Or perhaps (following Mill's lead, in the "corn-dealer" passage in On Liberty), we might distinguish provocation from expression by means of the choice of venue. If the instrument is blunt, in short, we should sharpen it, not throw it away. If it will be used to suppress things that we do not want to suppress, then we have failed to define precisely enough what we are trying to do. We have made the mistake of placing the thing we object to in a large category rather than in the smaller one in which, on further reflection, it really belongs. This does not fit the metaphor of the slippery slope at all. Another alternative is the "can of worms." This angling metaphor warns us that, if we open the can to take the one worm that we want, many other worms will escape and we will have to devote valuable time to recanning them. This has force only when time is scarce, as for example during a conversation or debate when the metaphor is used as a way of saying "but let's not get into that." There is an important sense in which political time, too, is scarce: agendas are of finite length.2 But the finitude of agendas cannot be taken to exclude things on the basis of their absolute bigness, as opposed to their relative importance. If you truly need one worm, then you need one worm, and you have to face the costs of opening the can; whereas if you don't really need a worm at all, it doesn't matter that releasing one will lead to a major collection problem. However, we can imagine a special case. Opening the can might bring other actors into play, actors who would otherwise have had no role, and we might be worried about the unpredictability that this would entail, or we might actually predict, on some basis or other, that these additional actors will do more harm than good. If municipalities or local magistrates are debarred from prohibiting any public assemblies at all, we can at least predict that they will not prohibit any inappropriately: open the 2. See Holmes, "Gag Rules."

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door by allowing one community to prohibit a demonstration—even a clearly loathsome one—and we no longer have the assurance that we had before. This, I think, is a clear case of slippery slope argument. It arises because, while we may believe that we can manage to distinguish between objectionable and innocuous demonstrations, we do not believe that the line will be clear enough to others. (But we should distinguish between the role of "others" in slippery slope cases and "thin end of the wedge" cases. In the latter they are causing disaster not by insensitively replicating what we have done but by exploiting openings that we have inadvertently created.) In his fine discussion of slippery slopes in the law,3 Frederick Schauer maintains that the argument logically requires the presence of other actors. If we reject doing A, a good thing, because it would lead to B, a bad thing, then we must already have at our disposal a way of distinguishing between good things such as A and bad things such as B, so why should we not express this distinction in the way we define the action and the grounds that we advance in its support? If we cannot do so, the basis of our judgment about A and B is obviously in doubt; hence also our claim that a slippery slope exists. If we can do so, then all we have is a "blunt instrument" problem. So it would seem that a distinctive slippery slope argument exists only when the action that we are to take runs the risk of being mistaken, by other people, as a precedent for other kinds of action of an undesirable sort. It is a reminder about the "frailty" of others. Are there ways in which a slippery slope might involve predictions about one individual's actions without requiring the presence of others? Schauer himself suggests one: an actor might be unsure about his or her future self (which we can treat for this purpose as being akin to another person). Even if I believe I've got it right this time, an actor might think, I can't be sure that once I start making decisions of this kind I might not sometimes get them badly wrong. In the manner of Ulysses anticipating the Sirens, that person might then want to forgo present freedom for the sake of avoiding future error. Elaborating on Schauer's idea, one can imagine cases in which the actors fear that doing something might turn them into different people. Doctors, for example, might fear that performing even justifiable acts of euthanasia would undermine their belief in the importance of life.4 If Pascal is right in thinking that performing

3. Schauer, "Slippery Slopes." 4. Van der Burg employs this example, in "The Slippery Slope Argument," 59-60.

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acts of worship eventually leads benignly to belief, then surely a malign version of the same process could occur. Another avenue opens up if we imagine the slippery slope as a sort of thought experiment: if I ban this demonstration now, can I be sure (at this point, not at some future point) that I know how to distinguish the case from a hypothetical case involving, say, the Marxist-Leninist party? Will I blindly be endorsing actions that I would not wish to support? This may be a good way of describing how people approach decisions, but the logic involved is simply that of the generalization test slightly disguised by the presence of a temporal element that really has no importance. A third possibility is suggested by the notion of commitment. In contexts other than the one we have been discussing, slippery slope fears arise essentially from worries about escalation. To take a military example, a given objective may clearly be worth a limited military effort, but we know or fear that a limited effort will call forth a response, which will require us to increase our commitment, which will... Assuming that we are free to withdraw when we want to, the case does not strictly fit the slippery slope metaphor, which implies that once we have got started we cannot stop, momentum being greater than friction. But it may have enough in common with the metaphor to be a usable example. (It fits the metaphor better to the extent that previous expenditures of effort are regarded as an investment that it would be costly to abandon.)

At least on the face of it, the Locke-Proast controversy is an ideal matrix for slippery slope arguments. First, the clear version of the argument expresses so well the concerns about public rationality articulated by Locke. Under the "Lockean" public rationality test, as distinct from the "Kantian" moral generalization test, we must subject principles not to the test of their being acted upon by others but to that of their being held and interpreted by others, in just the way required by the slippery slope argument. Locke says exactly this to Proast: although you may be satisfied that you have defined a policy entailing only moderate punishment, "I suppose others, when it comes to be put into practice, will... be scarce able to find what are the punishments you would have used."5 That is, we have to look at how those who hold your principle will interpret it.

5. Locke, Works, 6:277-78, emphasis added.

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Second, after Proast's first reply to Locke, the polemical situation invites arguments of precisely the slippery slope kind. Proast concedes Locke's claim that violent persecution cannot change dissenters' minds; he claims that "moderate penalties" can, however, be instrumental in changing people's minds. This presents Locke with a ready-made slippery slope, with moderate penalties at the top, and violence, agreed in advance by his critic to be abhorrent and useless, at the bottom. Not surprisingly, Locke sets out to show that Proast, for all his moderation, is committed to harsher degrees of force: "I doubt not but to let you see, that if you will be true to your own principles, and stand to what you have said, you must carry your 'some degrees offeree,' as you phrase it, to all those degrees which in words you declare against."6 But how can he show this? Locke makes a number of attempts. The first arises from Proast's claim that, since much or most of mankind cannot be won over by discursive means, God must surely have provided some more effective means, rather than leave so many with no hope of salvation. Locke responds by placing Proast's God upon a slippery slope: "If, to vindicate his wisdom and goodness, God must furnish mankind with other means... he must also, after your moderate penalties have left the greater part of mankind unprevailed upon, be bound to furnish mankind with higher degrees of force... "7 But it is easy to see that this is less a slippery slope than a reductio ad absurdum. Locke does not mean to say that, if God gave rulers the right to use moderate penalties, He would then have to give them the right to use heavier penalties. Rather, he means to say that the very notion of God having to do anything of the kind is ridiculous. "Who told you," he writes, "that the majority of mankind should ever be brought into the strait way and narrow gate?"8 And later he distinguishes between the necessity of something in relation to some goal, and the absolute necessity of something; if you need to fry eggs, you have to have fire, but who says you have to fry eggs? There simply is no necessity that everyone, or even most people, should be saved: "We may say, wisdom and power in God are absolutely necessary, because God himself is absolutely necessary: but we cannot crudely say, the curing in men their aversion to the true religion is absolutely necessary, because it is not absolutely necessary that men should be saved."9 The argument 6. 7. 8. 9.

Ibid., 142. Ibid., 161. Ibid. Ibid., 165.

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does perhaps contain an element of causal succession in that it would be the failure of what we had thought to be sufficient penalties that would lead us to see (on the assumption that there have to be sufficient penalties) that God must have authorized us to use heavier ones. But it is obviously Locke's view that the assumption is wrong anyway, not just because it would lead people to see a need for heavier penalties but because the theology is bad. If slippery slopes are about necessity, and if God is under no necessity to save people, then clearly it must be humans, not God, who are placed at the top of the slope. Locke's next formulation at least does that: "In England... not to be of the national religion is a fault, and a fault to be punished by the magistrate. The magistrate, to cure this fault, lays, on those who dissent, a lower degree of penalties, a fine of id. per month. This proving insufficient, what is the magistrate to do? If he be obliged, as you say, to amend this fault by penalties, and that low one of id. per month be not sufficient to procure its amendment, is he not to increase the penalty? He therefore doubles the fine to gd. per month. This too proves ineffectual."10 A few pages later Locke provides a real-world example, with an account of penalties for nonconformity in the reign of Elizabeth I. Initially a fine was imposed for non-attendance at the church; the fine was increased, and forfeiture of estate was imposed for non-payment of the fine. Later still, the penalty was increased to imprisonment (for one month's non-attendance) and exile (for three months' non-attendance), and the death penalty was imposed for refusing exile. "And now let the reader judge whether your pretence to moderate punishments, or my suspicion of what a man of your principles might have in store for dissenters, have more of modesty or of conscience in it."11 The proposed slippery slope, then, runs steeply from a penny fine to execution! But what Locke says here needs to be analyzed in several parts. First, it is not legitimately part of a slippery slope that law provides greater penalties for the evasion of smaller ones. If a state imprisons people who repeatedly fail to pay parking fines, we cannot say that a slippery slope leads from the regulation of parking to the imprisonment of violators and on that ground leave parking unregulated. Or, if it is a slippery slope, it is one on the top of which all legal regulation is perched, and it will eliminate much more than religious conformity. So two of the steps

10. Ibid., 281. 11. Locke, Works, 287-88

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(or slides) in Locke's slope should be discounted.12 What the Elizabethan legislation actually reflects is a peculiar feature arising from the twin difficulties of enforcement and habitual noncompliance. To legislate such harsh second-line penalties is in effect to announce that the policy has become serious: it is not an example of a minor penalty sliding down a slope to become a major one but of greater penalties sometimes being necessary to make lesser ones effective where policies stretch the limits of state power. Second, while the use of example is rhetorically powerful, it does not strengthen the case for the slippery slope. Here, as elsewhere, Locke asks us to look at the evidence of what states actually do. A policy that began with monetary penalties ended up with executions. Proast may be a moderate man, but real-world rulers have "never found out your moderate use of [force]."13 Further, "no magistrates that I know, when they once began to use force to bring men to their religion, ever stopped till they came to some of those severities you condemn."14 But what does this really tell us? Locke may be offering an empirical generalization about people who hold office. Or he may be offering an axiom about human nature: the magistrates resemble those punishers of malefactors in the state of nature who are "carried away" by the spirit of revenge and impose on violators far harsher penalties than they merit. But that does not tell us that a mild penalty will slide down the slope and became a major one. It tells us that, right from the start, power holders are going to punish excessively—not, to revert to an earlier point, because their own actions tend to change their characters but because excess is part of human nature and will emerge when it can. What is needed to prevent this is not a refusal to allow minor penalties (for fear that they become major ones) but a rejection of any penalties at all. If this is a good argument, it nonetheless goes too far. In effect it is an argument against the existence of states, though it could legitimate states on the general grounds that states would be more reliable law enforcers than vigilantes. But it cannot possibly explain why, in a particular 12. For the same reason we must reject as merely polemical Locke's response to Proast's remark, "All coactive power resolves at last into the sword" (Proast, Letters Concerning Toleration [i], 23). Locke writes, "You seem to have a reserve for greater punishments, when lesser are not sufficient to bring men to be convinced." (Works, 6:73). In his subsequent reply, Proast writes: "Sir, I should expect fairer dealing from one of your Pagans or Mahumetans" (Letters Concerning Toleration [2], 22, emphasis in original). 13. Locke, Works, 6:204. 14. Ibid., 279.

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issue area, we deny rulers the power to act in case they abuse the power, while in other areas the possibility that they might do so leaves us unconcerned.15 In short, it says nothing specific about the case in hand. Third, Locke's critique rests on a completely naive view of the relationship between means and ends. It assumes that, before rulers act, they must fix upon the desirability of certain ends in complete abstraction from the means that they entail and then proceed to implement policies that adjust the means in whatever way is necessary to advance the ends. Once we have decided to punish dissent, for example, we will begin with a penny fine and proceed step by step to hanging if need be, until we have found the effective level of threat. But this is entirely unrealistic. When we make policy choices, we choose sets of ends and means together. Ends are prior only in the sense that, if we did not want to accomplish a particular end, it would make no sense to look for a means to advance it. Ends are not prior in the stronger sense that we decide on them first and then proceed to fix upon means. The means that we use are not only means: they are acts or agencies that produce results over and above the intended results termed "ends," and we have to evaluate and trade off these additional results against the intended results. There is absolutely nothing wrong with saying that an end is worth pursuing if it requires certain means but not others; and there is nothing logically questionable about approving religious persecution to the extent of imposing fines for nonconformity but drawing back when things begin to go further than that. The slope, in other words, need not be slippery: in principle, we can stop when we want to. The same goes for a more restricted argument that Locke develops concerning the repeated use of penalties. Suppose we fine people for non-attendance at the state church. When we have done so once and they still have not attended, what is the point of imposing the same fine over and over again? We know that it is ineffective. Assuming that there was a case for the previous fine, would there not be a better case for increasing the fine than for imposing the same fine—already known to be ineffective—over and over again?16 This appears to be a genuine slippery slope argument. If you think yourself justified in repeating a punishment that has always failed in the past, then you are justified in 15. See Proast, Letters Concerning Toleration (2), 39: "If there be any thing of an Argument in this, it proves that there ought to be no Civil Government in the World; and so proving too much, proves nothing at all." 16. Locke, Works, 6:302.

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increasing the penalty, subject to the foregoing proviso about ends and means. But given that proviso, this must have only limited application. Nor would it rule out a policy of a one-time fine or registration fee for being a dissenter. Locke, however, plainly wants an argument that delegitimates any penalty, not just repeated penalties, and he has no argument to show that a one-time penalty, which would escape the slippery slope problem, would inevitably lead to multiple repeated penalties, which would not. How does the notion of commitment, introduced above, affect the case? Once a state has embarked upon a course, surely it has a reason to stick to it, even when the costs exceed those initially envisaged. A state that adopts a policy of fining dissenters should know that it may end up imprisoning them, either because they refuse to pay their fines or because fines turn out to be an ineffective deterrent. Refusal to pay fines returns us to the issue of states having to back minor penalties with major ones, since otherwise minor penalties would have no force. If there is anything left to this point, it may be the consideration that states ought to avoid, wherever possible, policies that are hard to enforce. But it is impossible to give that consideration any strong or principled force. Policies affecting behaviour within family units will obviously be hard to enforce, but that does not mean that we should hesitate to make laws against family violence or in favour of child support. Fines as an ineffective deterrent takes us back to the discussion of ends and means. Just because some means are ineffective in reaching a valuable end, it does not follow that we can substitute others without considering their impact upon our list of values. Our values may not be ranked, and in fact we may not be able to rank them until we know what their realization will cost. So much, then, for the slippery slope case against penalties for dissent. It is not impressive, and it is hard to find anything in this part of Locke's critique that can be agreed to without reservations. But slippery slopes also come into Locke's critique, and Proast's, in another way, which I shall now turn to. In the original Letter Concerning Toleration as well as in his subsequent replies to Proast, Locke claims that if states could impose the right religion, they could on the same grounds impose other things, such as healthy lifestyles, that we regard (he implies) as falling outside their province. Proast employs an identical argument, but tilted in the other

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direction: if you refrain from suppressing vicious religious beliefs, you will disqualify yourself from suppressing any vices at all, such as theft and murder, which of course we do see as falling within the province of the state. Are these really slippery slope arguments? It is tempting to read them as examples of a generalization test. If we place true religion and the right diet in the same category, it follows that we should impose the one only if we are prepared to impose the other; while if we put false beliefs and murder in the same category, it follows that we should tolerate the one only if we are prepared to tolerate the other. But perhaps it is useful to read them as slippery slope arguments that take one or both of two possible forms, corresponding to considerations that, however they should properly be classified, are politically important. First, we may look at the matter from the standpoint of a public that is authorizing its government to do certain things but is constrained by the thought that it needs to preserve future room for argument. If true belief and the right diet indeed belong in the same category, our having authorized the imposition of true belief will come back to haunt us when the government starts taking an interest in what we eat. Precedents erode what may be termed "argumentative space." Or, we may be thinking about cumulative effects on our political culture. If we become accustomed to seeing government as a parenting institution in one area, might we not lose our resistance to seeing it this way in other areas? Alternatively, if we inure ourselves to the toleration of some vices, might we not lose our hatred of all vice? We must bear in mind the attitude to government that a policy implies and creates or reinforces. The first alternative looks as though it might rapidly turn into a blunt instrument problem—the categories are just too broad—while the second contains a genuine causal element linking the top of the slope with the bottom and thus seems the stronger of the two. As a slippery slope argument the first would have to be saved by the claim that in practice, given the difficulty of making clear distinctions in public life, the categories would be dangerously expansive. At best, though, this could give us little more than a case for the overprotection of certain liberties, anticipating the future expansion of the categories. Even with this relaxed interpretation, however, we may have trouble accepting Locke's first putative slippery slope argument. He considers Proast's claim that a state, in order to aid its subjects in attaining salvation, may by the use offeree "do some service towards the bringing men to embrace that truth, which otherwise they would never acquaint themselves

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with." Locke says, "If this be good arguing in you, give me leave to argue after the same fashion." Since people endanger their souls as much through lack of chastity as through lack of true belief, Proast's view would also licence castration, which "may do some service towards bringing men to embrace that chastity, which otherwise they would never acquit themselves with."17 The cruelty of the thought adds to its effect, but Locke has no right to capitalize on this since he himself advocated other kinds of mutilation in his lamentable report to the Board of Trade.18 If anything leads down a slippery slope, it is the use by the state of cruel means of punishment, which if tolerated in one mode may be hard to resist in others. State use of cruelty embodies and expresses an attitude to the human body and its dignity against which we want the security of an absolute prohibition— which Locke is far from giving us. The cruelty of the means apart, does Locke mean to say that states should adopt no means to "make the lascivious chaste"? Surely, on the set of religious assumptions basic to Locke's thinking, the purpose of ordaining marriage and of criminalizing adultery and prostitution would in part be just that—an apter parallel to what Proast has in mind regarding religious conformity, as Proast himself points out.19 In fact Locke does not altogether reject the enforcement of sexual morality. In the original letter, as we have seen, he excludes "covetousness, uncharitableness, idleness, and many other things" from his list of vices that ought not to be punished by the state,20 which leaves the door open to "lasciviousness," though Locke does not overtly admit it.21 Since he does not say explicitly that the state should not enforce sexual morality at all, Locke is in no position to criticize Proast as he does. The analogy, in any case, is not a good one. If Proast's policy worked, if some, having found themselves exposed to holy teaching, were indeed led to embrace the true faith freely, it would not follow that states should practise castration since castration would not lead to chastity in the relevant sense. It is no virtue to abstain from what one cannot do. Whether a eunuch is free 17. Ibid., 81. 18. See Wootton, Political Writings, 446-61. 19. Proast complains that Locke's parallel would work only "if I had said, that to cure men of damnable or dangerous errors, it is useful to knock out their brains" (Letters Concerning Toleration [2], 31, emphasis in original). 20. Locke, Works, 6:36. 21. The matter becomes more complex in the later letters. For a careful discussion, see Marshall, John Locke: Resistance, Religion and Responsibility, 376-83.

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of lascivious thoughts, or whether he has them but cannot act on them, he is not chaste in the sense that a person who freely embraces chastity is. Those who propose the castration of sexual offenders do so not for the sake of the offenders' virtue but in the interest of other people's safety. Locke's second rejoinder also employs a surgical analogy. This time, the proposed slope runs from using force to lead people to salvation to forcibly operating upon someone to cure them of "the stone." In the second letter on toleration Locke wrote: "A man may have the stone, and it may be useful... to him to be cut; but yet this usefulness will not justify the most skilled surgeon in the world, by force to make him endure the pain and hazard of cutting; because he has no commission, no right, without the patient's own consent, to do so."22 This looks more promising than the previous case since the procedure, analogously with what is claimed by Proast, at least offers a real benefit, though the element of "hazard" complicates matters. Proast then objects to Locke's equation of a risky surgical procedure with a pastoral procedure that carries no risk and requires only that people to listen to the truth. Locke replies predictably that compelling people to listen to what one believes to be the truth does entail "danger"—to their souls—for one may be wrong.23 Here, though, Locke and Proast are on different ground, and the argument turns not on the slipperiness of a slope but on issues of belief and truth. Locke has little choice but to revert to those issues. Had he allowed that Proast's policy of state-sanctioned conformity was riskless, he would have had to agree to it given his concession that it might "by accident" lead to salvation in some cases. If it could do so without risk, then no sensible person could reject it, and the only case for declaring it risky is the one that Locke in fact gives. In making the case for risk, however, Locke undermines the argument he himself is pursuing. Given his own view of the nature of belief and truth, the magistrate, like everyone else, must suppose his own belief to be true; so if he has a duty to impose the true belief, he must impose his own. But we cannot know that the magistrate or anyone else is right, and so the risk entailed is enormous. It is in fact the highest possible risk—that of consigning millions to damnation. But if it is the highest possible risk, it is clearly worse than the wrong entailed in imposing surgery on a limited number of kidney stone patients. This plays havoc with the slippery slope. If we could in principle accept 22. Locke, Works, 6:113. 23. Ibid., 166.

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the limited wrong entailed in B while rejecting the unthinkable evil entailed in A, then plainly we decouple the two. This shows that if we employ a slippery slope argument, there has to be something worse—B— than the case—A—that we arguing against. So we cannot use such an argument against A if we believe A is itself unthinkably evil. It is clearly not a slippery slope argument but, rather, a form of bathos—that genocide might also lead to a labour shortage. Proast also tries to distinguish the religious from the medical case by another consideration. The stone does not always kill its victims. Surgery is not always necessary. But to hear the teaching of the true Church is "altogether necessary (without extraordinary grace) to cure that pernicious and otherwise intractable aversion [to true belief]."24 Locke's response to this initially seems more successful. He draws on the point that God is under no necessity to save everyone, so while certain means may be necessary to save everyone, the end to which they are the means cannot be said to be a necessary one.25 Proast simply confuses two kinds of "necessity." Locke also makes the point, elsewhere developed at great length, that we cannot tell in which cases penalties would be necessary as means. Some may be saved by grace alone, some by the effect of preaching, some "accidentally" by moderate Proastian penalties, some, also "accidentally" by severe penalties. It is like a medical case in which the surgeon does not know in advance whether a given patient will or will not live without surgery, or will die or not as a result of it. But it is only the second part that really matters: even if the patient might live without surgery, one should operate nonetheless (if the surgery is without risk) in order to increase the patient's chance of living. It is only the fact that the surgery is risky, that the patient might live without it and might die as a result of it, that tells us that we can do no better than the patient in assuming responsibility for the risk. Thus, after a short detour, we are led back to the previous point: that Locke and Proast conduct their risk assessments differently, having different ideas about truth. Remarkably, after seeking to avoid the slippery slope by distinguishing between the religious and medical cases and embarrassing Locke perhaps more than he knew, Proast then changes the terms of argument entirely by denying that the medical case is in any way objectionable: "Though, as things now stand, no surgeon has any right to cut his 24. Proast, Letters Concerning Toleration ( 2 ) , 53. 25. Ibid., 164-65.

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calculous patient without his consent; yet if the magistrate should by a public law appoint and authorize a competent number of the most skilful in that art to visit such as labour under that disease, and to cut those (whether they consent or not) whose lives they unanimously judge it impossible to save otherwise: I am apt to think you would find it hard to prove that in so doing he exceeded the bounds of his power."26 This illustrates one of the hazards of using slippery slope arguments. When we say that banning the Nazi march in Skokie will lead to banning the Marxist march in a rich suburb, that censoring violent pornography will lead to censoring D. H. Lawrence, or that registering firearms will lead to disarming the populace, we risk running into someone who says, yes, we should stop the Marxists from marching in Westchester, yes, we should censor D. H. Lawrence, and yes, we should disarm the populace. That is exactly what happened to Locke, and he reverted at once to other arguments developed in the letters: Has God approved your policy? Can magistrates judge what is true? Does not the Church of England also have members in need of improving? What provision has God made for people who do not live in England?27 These are all good questions, but they mark a decisive departure from the slippery slope. Let us turn to Proast's use of the argument, offered in two brief passages. In the first, he takes issue with Locke's implied view that dissent is no vice. Since Locke declares that magistrates must set themselves against vice, his toleration of dissent must mean, according to Proast, that "the rejecting the true Faith, and the refusing to worship God in decent Ways, prescribed by those to whom God has left the ordering of such matters, are not comprehended in the name of Vice."28 Others, Proast continues, may equally well redefine vice; for example, they may declare "arbitrary Divorcing," "Polygamy," "Concubinacy," "simple fornication," or marrying within the prohibited degrees of kinship to be non-vicious and hence proceed to legalize them, just as Locke proposes to legalize dissent.29 The second passage concerns conscience. It is part of Locke's argument, as we have seen, that it is a sin for people to adopt articles of faith or modes of worship against conscience, and it should be acknowledged 26. Proast, Letters Concerning Toleration (2), 54. 27. Locke, Works, 6:167. 28. Proast, Letters Concerning Toleration (2), 13. In the passage that Proast refers to (Locke, Works, 6:65), Locke does not in fact commit himself to saying that all vice must be made illegal. I ignore this for the sake of examining the critique that Proast wants to make. 29. Ibid.

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to be a sin even from the point of view of others who believe those articles or modes to be right. Proast constructs a slippery slope that leads from Locke's assertion to the case of "that wretched Person...who thought himself commanded by GOD, Deut. XIII. 6.8,9,10. to kill his Father for perswading him to receive the Communion kneeling."30 It is manifest, he claims, that to teach people that they must do their conscientious duty is to license them to commit sins that they erroneously take to be their duty. It is not difficult to discern Locke's first line of defence against these critiques. It lies in the distinction between vice, or sin, and crime. That people may hypothetically define vice in one way or another says nothing about what states should or should not prohibit, because the realm of legal prohibition is not coextensive with that of vice. Suppose some people might declare Proast's list of sexual offences to be non-vicious: "Let them except these, and, if you will, drunkenness, theft, and murder too, from the name of vice; nay, call them virtues: will they, by their calling them so, be exempt from the magistrate's power of punishing them?"31 Locke simply separates two issues that Proast appears to take as one. We have no comment on Proast's second passage since Locke never completed his reply to the work in which it appears. But it is scarcely difficult to find, in his political theory, a reason to prohibit murder even by people who think they are murdering conscientiously. Nowhere does Locke advance the absurd view that people may do anything they wish if their conscience tells them to. His view that people must act conscientiously is clearly contained within a theory that gives primacy to people's rights to be protected against certain kinds of harm. To revert to a passage mentioned already: "Covetousness, uncharitableness, idleness, and many other things are sins, by the consent of all men, which yet no man ever said were to be punished by the magistrate. The reason is, because they are not prejudicial to other men's rights, nor do they break the public peace of societies."32 Locke's reply to Proast is certainly good. If nothing separated vice or sin from crime, life would have a very different character. If we could not be covetous, uncharitable, or idle without breaking the law, we would, most of us, have to undergo a personality change, or else become skilled in hypocrisy. The fact remains, however, that we still have to find ways to distinguish between those failings that the law should punish and those the law 30. Proast, Letters Concerning Toleration ( i ) , 14. 31. Locke, Works, 6:241-42. 32. Ibid., 36-37.

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should ignore. Locke's contractual theory suggests a way of doing so; the slippery slope argument fails—which tells against political theories that rely upon devices of that kind rather than exploring the inherent limitations of legitimate power.

5

Proast on Locke, Stephen on Mill: A Structure of Illiberalism ? Arguments for toleration have taken very different forms at different times. The arguments for mtolerance, on the other hand, display certain strong (if partial) continuities. The claim that there is a "permanent structure of antiliberal thought"1 is likely to meet with scepticism, if not outright objection. One criticism would be that liberalism has no "permanent structure." There are theological, contractual, utilitarian, and perfectionist liberalisms; welfare liberals and market liberals; positiveliberty and negative-liberty theorists. A fortiori, if liberalism has no permanent structure, how likely is it that antiliberalism, a group of doctrines defined merely by a shared negation, would have a permanent structure? A more general objection, and one consistent with the temper of much recent methodological writing, is that there are no permanent structures anywhere. Political theories express the different intentions of thinkers addressing different political contexts, and to subsume them under structures imperceptible to their authors is to obliterate their very meaning. But a claim is a claim, and to reject it on the basis of general principles may be to protect those principles against any chance of being unsettled or revised. Interesting claims should be tested on their merits. This chapter sets out to provide a limited test. It examines the approaches of the two principal critics of the two foremost defences of liberal toleration, Proast's critique of Locke's Letter Concerning Toleration, and James Fitzjames Stephen's critique of John Stuart Mill's On Liberty, which comprises most of Stephen's book Liberty, Equality, Fraternity, published in 1873. i. See Holmes, "The Permanent Structure of Antiliberal Thought."

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Between the 16905 and the 18708 the debate over toleration had undergone important changes. The issue between Locke and Proast is internal to Protestant thinking, while the issue between Mill and Stephen is a contest between secular and religious conceptions of moral and political life. The toleration defended by Locke (which excluded Catholics and atheists) seems painfully narrow in comparison with the "absolute" freedom of thought and discussion advanced in On Liberty. Mill has to take account of mass opinion in a far more democratic context than Locke imagined. Such differences, however, may increase the value of the test. That the critics of toleration are in partial agreement despite such contextual changes suggests that the notion of a "structure" in their thinking may not be far-fetched; at least, it suggests that theories of toleration may face typical obstacles. I shall begin with the idea that Locke's letter and Mill's On Liberty are above all defences of political morality, though they defend it in different ways. I shall then examine Proast's and Stephen's texts as critiques of political morality, noting the points of convergence between their theses— their views on indifference, scepticism, constraints on state action, perfectionism, and the relation between crime and sin. There are strong continuities in illiberalism, and it will be shown that an approach such as Locke's is better able to respond to them than an approach such as Mill's. Mill may have been the first person to use the term "political morality,"2 but the idea is clearly present in Locke. By "political morality" I mean the idea that norms governing political conduct are more constraining than the norms governing personal conduct. Of course, we could also have the idea of a "political morality" with norms that are less constraining than those governing personal conduct, but the idea has lost currency and its consideration would take us far afield. I shall take "political morality" to refer to a set of constraints that people should recognize over and above the constraints that their own personal moral principles suggest to them. Your personal moral principles may rule out abortion, for example, but considerations of political morality would prevent you nonetheless from fire-bombing abortion clinics; your personal moral principles may rule out homosexuality, but considerations of political morality would nevertheless tell in favour of extending family benefits to same-sex couples. 2. Mill, On Liberty, 83.

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The very idea of a political morality seems inextricably bound up with toleration itself. This is because the idea of toleration has a structure. It requires the existence of an agent who has the power to repress and reasons to repress but who nevertheless does not repress because other reasons supervene. That agents have reasons to suppress something requires that they should be moral beings with strong criteria of moral acceptability and unacceptability; and that they should also accept supervening reasons requires that there should be a further layer of concerns of sufficient force to limit their own strongest convictions. But what further layer could there be? A person's own strongest conviction is precisely that, and nothing can be stronger. This is one kind of general objection to liberalism today, and it is clearly anticipated, as we shall see, by Proast and Stephen. One liberal response is for people to distinguish what, according to their convictions, is right from what they have a right to do; and what they have a right to do is in turn derived from a basic theory of the terms of political association. In Locke's case this approach is highly visible, given that social contract theory lends itself exactly to the task. However else the social contract functions in Locke's argument, it at least provides an account of the terms individuals would find acceptable as a "rational" basis for political society.3 Locke frequently relies on this notion in his replies to Proast, and his theory of toleration, while intricate, is thoroughly contractualist. Mill, on the other hand, is no contractualist, and in On Liberty he says that social contract theory serves no useful purpose. But that is because he has already built into his own notion of utility a contract-like device. "Society between human beings, except in the relation of master and slave, is manifestly impossible on any other footing than the interests of all are to be consulted. Society between equals can only exist on the understanding that the interests of all are to be regarded equally."4 He speaks of these considerations as the "terms" by which we must live. In this he is substantively close to, though methodologically remote from, earlier liberal projects. His claim is fundamentally similar to Locke's claim that political institutions must be ones that reasonable people would arrive at on the basis of mutual "stipulations." Thus, the normative starting point is not the existence of a single culture, common project, or shared belief but the notion of a plurality of beings who must identify the terms on which association is possible. 3. Locke, Two Treatises (2), sec. 163-64. 4. Mill, On Liberty, 29-30.

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How toleration fits into this general line of argument is not difficult to see. Intolerance is not plausibly among the terms that we would agree to. It offends the "rationality" that Locke appeals to—no rational person would agree to be a victim of intolerance. It offends the "equality" that Mill appeals to—the intolerance of one person towards another entails a claim to privilege and is thus inconsistent with the "understanding" on which "society" can be founded. Those, then, are the two kinds of answers offered by Locke and Mill to the question how political morality is possible at all. They derive from an approach that takes human plurality as its starting point and models politics accordingly, whether a social contract device is used or not. But "plurality" is an idea whose multiform character may hide some disagreements. What does it mean to take human plurality as a point of departure? It does not mean "atomism," if that refers to a notion of plurality as separateness. Locke sees in human beings a natural and god-implanted sociability, and he calls on members of civil society to care strongly for one another's fate, denying only that compulsion is a good way of doing so. Mill likewise calls for "a great increase" in people's concern for one another, disowning any belief in egoistic separateness. It might even be said that the fear of separateness is a distinctively liberal one; for liberals have sometimes taken as their target a state that, by overextending its scope, destroys genuine cooperativeness within civil society itself. To stress plurality may mean founding political theory either upon distinctness or upon diversity. By "distinctness" I mean simply the criteria by which different things count as being different things; by "diversity" I mean the properties that make things different from one another.5 Identical twins, or matches in a box, are not diverse, but they are distinct because they can be placed in different circumstances and undergo different fates even though their properties may not be different; people experience their own lives as their lives, even if their properties happen to be much the same as someone else's. Which idea of plurality underpins liberal toleration? Diversity might seem to be primary in that if people all thought alike, the question of toleration would not arise. It arises because some people have thoughts or engage in practices that other people regard as 5. This distinction is entirely overlooked by Sandel in his critique of Rawls (Liberalism and the Limits of Justice, 51): "In order for subjects to be plural, there must be something that differentiates them, some way of distinguishing one from another, some principle of individuation." This confuses the two importantly different ideas of "plurality" at issue here.

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vile or stupid, because they happen to prefer thoughts or practices that are different. For Locke, the important case is that of diverse forms of worship. He himself attaches no importance to forms of worship. Following a long tradition, he places ceremonies in the category of "indifferent things" that have no bearing upon the only important issue, that of salvation. Nevertheless, he acknowledges that people with different "tempers" will be attracted to different modes of worship that are more or less ascetic. And since it is important that people should offer to God what they feel to be most pleasing, their differing "tempers" must be tolerated. The operative notion here, however, is distinctness. What matters is that each person should respond to his or her own promptings. It is a fact that these promptings are different, but no value attaches to this fact. Life would not be diminished if everyone felt the same way. In some important ways it would be improved: Locke repeatedly attacks or laments religious schism, which discourages the conversion of non-Christians,6 "tears in pieces the church of Christ," and "mangle[s] Christianity."7 Intolerance fosters schism by dividing believers on points of doctrine or practice: "I ask, whether the magistrate's interposing in matters of religion, and establishing national churches by the force and penalties of civil laws, with their distinct... confessions and ceremonies, do not by law and power authorize and perpetuate sects among Christians, to the great prejudice of Christianity, and scandal to infidels, more than any thing that can arise from a mutual toleration, with charity and a good life?"8 So diversity in this sense, far from being a merit, is among the vices to be laid at the door of those who attempt to impose conformity. But that is not true for Mill. Life would be diminished by uniformity. On Liberty offers both an elaborate argument for diversity and a powerful rhetoric in favour of it. The argument connects diversity with utility itself. Utility is increased by diverging opinions whose strife advances truth, as well as by "experiments in living" whose success or failure adds to the stock of experience. When Mill celebrates "individuality" in chapter 3, the term is taken to mean difference, divergence from norms, even eccentricity: "That so few now dare to be eccentric marks the chief danger of the time."9 A life is of value, on this argument, if it is 6. 7. 8. 9.

Locke, Works, 6:237. Ibid., 239. Ibid., 240. Mill, On Liberty, 135.

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unlike anyone else's by virtue of the opinions that it reflects or the practices it tests. Does it follow, as strictly it should, that similar lives are superfluous? Mill, of course, does not draw this illiberal conclusion, partly because, woven into the celebration of diversity, there is also a recognition of the importance of distinctness. One's own plan of life is important because it is one's own. What is important about choosing is that it develops powers of discrimination,10 which is separate from the consideration that it may lead to variety. One day, very far off, divergence of opinion will cease to be useful, for knowledge will be complete and will no longer need the spur of conflict. At that point we will have to create artificial conflicts so that the grounds of our knowledge remain vivid to us.x * In all of this there is a valuing of personal comprehension not far removed from the valuing of personal commitment in Protestant thinking such as Locke's. It is crucial that one's life should be self-chosen, and if variety is the result—as it likely will be—that is only a fact, and not itself, from this point of view, a value. For Locke, then, divergence of "tempers" and beliefs is a problem, and the response entails giving weight to human distinctness, which in turn is part of a cluster of beliefs concerning personal responsibility. Each person ultimately meets a distinct fate and must prepare for it in the light of the best reasons that he or she can discern. For Mill, however, it is uniformity, not divergence, that is the problem, and he responds by praising not only the power of choosing but also the diversity that results from the exercise of that power. That said—and I shall return to these differences later—it remains the case that, despite their differently structured notions of plurality, Locke and Mill both take plurality as the basic condition of political life and see political theory as the subject that explains and clarifies its implications. How one person behaves towards another depends not only on his or her view of the other but also upon a mediating theory about the conditions of association, a theory expressed either in a contractual device or in an "understanding." That seems to me to be the most important point of convergence between two theories that in other respects diverge quite sharply. Yet the denial of such a theory is a significant feature of both Proast's and Stephen's critiques. Why do they reject it?

10. Ibid., 126. 11. Ibid., 111-12.

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One essential value of liberalism is that of transparency, or publicity, that is, the idea that basic social and political institutions should be justifiable, according to a high standard of impartiality, to those who inhabit them. That is why such things as social contract devices appeal to liberals—they are ways of ensuring transparency. Thus, it is intriguing that Proast and Stephen reject both the device and its underlying value, on remarkably similar grounds. Commenting upon Locke's contractual argument, Proast writes: "I see no reason, why the Author or Institutor of any Society, especially of Civil Society, may not be supposed to design more than those usually do, who enter into it."12 Criticizing Mill, Stephen writes similarly of legislators that "each addresses himself to a body of men whom he regards as a whole, upon whom he is to impose ... the way of life which he wishes them to adopt, not the way which he supposes them to wish to adopt."13 The happiness he wishes his subjects to have, not the happiness that his subjects wish to have, is the test of his legislation's success. So, for both critics there is an appeal to the standard of an original legislator, divine or human, whose intentions form a standard of appraisal, over and above the standards that subjects may be able to form for themselves. In Proast's case it is a law of nature expressing God's will, a will to which the magistrate's actions can be referred in an unmediated way. In Stephen's case it is whatever ideal of life or moral vision that human authorities seek to impose. We can see at once the inappropriateness of a contractual or contract-like approach to these conceptions. Civil society is not and cannot be fully transparent, for it contains a sort of reserve of meaning that exceeds what its members can assent to. And it will itself control what its members assent to, so that assent is without much value as an independent standard. Three important claims or assumptions support Proast's and Stephen's view. The first is a conception of general human competence. Proast uses familiar parental imagery in describing rulers and their powers: kings are "nursing fathers," queens "nursing mothers," to the Church,14 and the provision of an established Church expresses the view that "the care of every Man's Soul ought not to be left to himself alone."15 On this theme Stephen is voluble. "On all the subjects which mainly interest men as 12. 13. 14. 15.

Proast, Letters Concerning Toleration (2), 59. Stephen, Liberty, Equality, Fraternity, 228. Proast, Letters Concerning Toleration (2), 10. Ibid., 76.

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men—religion, morals, government—mankind at large are in a state of ignorance which in favourable cases is just beginning to be conscious that it is ignorance."16 While rational enquiry may be a good thing, "the incalculable majority of mankind form their opinions in a quite different way, and are attached to them because they suit their temper and meet their wishes, and not because and in so far as they think themselves warranted by evidence in believing them to be true."17 And, returning to parental imagery: "A man who did not, as far as he could, 'undertake to decide' for his children... would be a contemptible pedant. Legislators and the founders of great institutions must to a very considerable extent perform precisely the same task for the world at large."18 The second supporting belief is that there is no important difference, and no need to make any clear separation, between the roles of persuasion and coercion. Proast's startling example of state-imposed surgery makes the point with some drama. Less startling, but equally telling, is his easy assimilation of the magistrate's imposition of religion to neighbourly concern for another's soul: to deny that he should impose, Proast says, is effectively to deny "that every man [is] in some sort charged with the care of his Neighbour's Soul."19 In several passages Stephen tackles the issue head on, in response to Mill's own fairly extended treatment. Conceiving of morality essentially as a system of constraint, "a prohibitive system," Stephen says that he can see no reason to distinguish between the constraints deliberately imposed by legislation and those naturally arising from social disapproval.20 Social institutions "persuade in some directions, and they threaten in others. Some of those who are addressed listen to the persuasions; others do not listen to the threats, and have to take the consequences in their various degrees. But every man who lives in society is both persuaded and threatened by society in every action of his life."21 This forms part of an argument that is perhaps more directly relevant to Locke than to Mill, one that seeks to undermine any important distinction between the roles of spiritual and temporal power.22 16. Stephen, Liberty, Equality, Fraternity, 71. 17. Ibid., 78-79. 18. Ibid., 100. 19. Proast, Letters Concerning Toleration (2), 76. See also ibid., 32, where the magistrate's duty to impose is grounded in charity. 20. Stephen, Liberty, Equality, Fraternity, 59. 21. Ibid., 130. 22. Ibid., 123-34.

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The third supporting view is that discussions about what states may legitimately do must proceed from initial premises about substantive moral truth—not from premises about the conditions under which people can best discover substantive moral truths, but directly from a doctrine about how people should live. This is, of course, entailed in one of Proast's fundamental disagreements with Locke: he thinks one not only can but must take "the true religion" as the point of departure, not what people think is true but what really is true. He discounts all Locke's argumentation about the perilous consequences of doing so on the grounds that those consequences flow from some people's misunderstanding of what is true, not from the pursuit of what is true. Stephen is equally emphatic about the impossibility of detaching political argument from true morality or religion, and of resting political legitimacy upon "neutral" claims: "I believe it to be simply impossible that legislation should be really neutral as to any religion which is professed by any large number of the persons legislated for... English legislation in England is neutral as to Mahommedanism and Brahminism. English legislation in India proceeds on the assumption that both are false. If it did not, it would have to be founded on the Koran or the Institutes of Manu."23 No legislation can be neutral in its consequences, and how one evaluates it will "depend on the view of religion which is taken by different people."24 It is incumbent upon governments "to take the responsibility of acting upon such principles, religious, political, and moral, as they may from time to time regard as most likely to be true."25 This clearly echoes Proast's view, in his third reply to Locke, that the best belief one has—"though not strictly infallible"—should be the basis of the order that one imposes.26 One cannot, in short, do better than to follow one's best belief at the time. In the face of this claim, arguments about the best conditions for the formation of true belief have no force, for after all, as Locke himself pointed out, what we believe, we believe to be true. The upshot of these claims cannot but be a strong version of political perfectionism. If people need to be led; if no special constraints apply to using coercion in leading them; if in leading them one cannot but impose substantive beliefs upon them: then it follows necessarily that 23. 24. 25. 26.

Ibid., 91. Ibid. Ibid., 87. Proast, Letters Concerning Toleration (3), 9.

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the state is a vehicle for improving people's lives by whatever means are at its disposal. Both Proast and Stephen frankly advance this view. In his first reply to Locke, Proast writes: "Doubtless Commonwealths are instituted for the attaining of all the Benefits which Political Government can yield. And therefore if the Spiritual and Eternal Interests of men may any way be procured or advanced by Political Government; the procuring and advancing those Interests must in all reason be reckon'd among the Ends of Civil Societies, and so, consequently, fall within the compass of the Magistrate's Jurisdiction."27 In his second reply, Proast argues that if no scriptural reference confers upon the magistrate the power to impose, that is because God "found him already, even by the Law of Nature, the Minister of God to the People for good, and bearing the Sword not in vain, i.e., invested with Coactive Power, and obliged to use it for all the good purposes for which it might serve, and for which it should be found needful."28 Similarly, Stephen writes: "Upon the whole, it appears to me quite certain that if our notions of moral good and evil are substantially true, and if the doctrines of God and a future state are true, the object of causing people to believe in them is good, and that social intolerance on the behalf of those who do towards those who do not believe in them cannot be regarded as involving evils of any great importance in comparison with the results at which it aims."29 This harks back to his earlier point that if legislation aims at a good object—actually tends to attain it and not at excessive cost—then no principle stands in its way.30 Given the above, it becomes understandable that Proast and Stephen should think that only those without religious belief could advocate toleration, and that only those without belief will respond to their arguments. The Letter Concerning Toleration is among those books and pamphlets that "fly so thick" in promoting scepticism.31 In rejecting Proast's claim to take true belief as his point of departure, " 'tis obvious enough" that Locke can have "no other reason... but either the equal Truth, or at least the equal Certainty (or Uncertainty) of all Religions."32 In his last reply, as we have seen, Proast tells Locke that his case holds only if he believes that "there are as clear and as solid grounds for the Belief of False Religions,

27. 28. 29. 30. 31. 32.

Ibid, ( i ) , 18-19, emphasis in original. Ibid. (2), 31, emphasis in original. Stephen, Liberty, Equality, Fraternity, 108. Ibid., 85-86. Proast, Letter Concerning Toleration (2), 35. Ibid., 47, emphasis in original.

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as there are for the Belief of the True."33 Stephen fully concurs. To sever church from state expresses "covert unbelief34 ... Sceptical arguments in favour of moderation are the only conclusive ones35 ... Complete moral tolerance is possible only when men have become completely indifferent to one another—that is to say, when society is at an end."36 These claims raise a wide range of critical issues, some of which—particularly the attribution of such things as scepticism or indifference to theorists of toleration—have been discussed above. In other cases, it is not difficult to see how theorists of toleration might respond. Locke and Mill both offer many arguments that should at least inhibit recourse to the image of the state as parent, for example. The contention that one has to act on one's own best judgment at any given time is answered in advance by Mill, who makes a distinction between acting on one's own best judgment and substituting one's judgment for others'.37 As for the view that toleration theorists give undue prominence to state coercion as distinct from other kinds of influence, it is Stephen himself who provides an eloquent reply to his own point. The criminal law, he says, "is by far the most powerful and by far the roughest engine" that society can use, and also the "ratio ultima of the majority against persons whom its application assumes to have renounced the common bonds which connect men together."38 The point is not just that it is "rough" (in its double sense of violent and approximate?) but that it changes the relationship between society and those who are subject to it, from a communicative to an exclusionary one.39 This is an important theme in Locke's third letter, which pursues an extended contrast between the policy of coercion and that of "discoursing with men seriously and friendly,"40 rejecting the former just because it breaks the tie of discourse. As Goldie points out, this was an important theme in the Latitudinarian critique of Proast's High Church friends.41 33. 34. 35. 36. 37. 38. 39. 40. 41.

Ibid. (3), 7. Stephen, Liberty, Equality, Fraternity, 95. Ibid., 120. Ibid., 149. Mill, On Liberty, 87. See also Locke, Works, 6:186-87. Stephen, Liberty, Equality, Fraternity, 151. Ibid. Locke, Ibid. Works, 6:433. Goldie, "John Locke, Jonas Proast," 165-66.

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The most disconcerting aspect of Proast's and Stephen's critiques, taken generally, is their outright rejection of the very idea of neutrality, and their claim that a political theory must proceed directly from claims to moral Tightness. The effect is to place theories of tolerance on exactly the same footing as the ideas that create the need for tolerance in the first place. Whereas theorists such as Locke and Mill attempt in one way or another to find an abstract vantage point from which to assign rights and entitlements, their critics deny the possibility (or at least the usefulness) of this abstraction, representing liberalism as a substantive political doctrine like any other. This challenge is offered in its most acute form, perhaps, in Stephen's claim that what Mill provides is nothing less than a new religion: "It deeply influences politics and legislation. It has its solemn festivals, its sober adherents, its enthusiasts."42 Even today this is a powerful element in the critique of liberalism. Thus, Richard Webster, commenting on the support given by liberals to Salman Rushdie against the Ayatollah Khomeini 'sfatwa, sees in the issue "a clash between two forms of essentially religious ideology."43 The defence of freedom of thought and expression springs ultimately from the internalization of a Miltonic notion of the sacredness of conscience.44 "What [liberals] are defending ultimately is the right—or the duty— which has always been sacred to our intolerantly monotheistic culture. It is the right to proclaim the superiority of their own revelation, and to abuse the gods who are worshipped by other, supposedly inferior cultures."45 Ronald Beiner, too, sees contemporary liberalism as a kind of detheologized residue of Protestantism and suggests that disputes between liberals and their communitarian critics reflect the divide between people of Protestant background on the one hand and Catholic background or Jewish descent on the other.46 Liberalism, in other words, is the Reformation without the Bible. With regard to Mill, it is hard to resist the idea that somewhere at the heart of his political and social vision there is a deeply "Protestant" conception of life. The notion is most graphically suggested by the idea of a "religion of humanity"—that is, the idea that humanity itself can replace God as an object of devotion, and that the ideal of contributing to human progress can become, in Mill's words, "the religion of 42. 43. 44. 45. 46.

Stephen, Liberty, Equality, Fraternity, 52. Webster, A Brief History of Blasphemy, 53. Ibid., 57. Ibid., 59. Beiner, What's the Matter with Liberalism?, i6n.

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the future." 47 The term was originally coined by Auguste Comte, and it is astonishing, on the face of it, that Mill should have adopted it so enthusiastically while clearly rejecting Comte's authoritarian social doctrine of which it formed part—a doctrine that is the very type of "antiliberalism." In his essay on Comte, Mill says that the power of the idea of serving humanity "both as a source of emotion and as a motive to conduct, many have perceived; but we know not if anyone, before M. Comte, realized so fully as he has done, all the majesty of which that idea is susceptible."48 Again, in Utilitarianism, discussing the question how to motivate people to adopt the "general interest" of mankind as their rule of conduct, Mill says that he can do no better than refer the reader to Comte's work.49 It must be borne in mind, however, that while Comte was an atheist and Mill was an agnostic, Comte was a Catholic atheist while Mill was a Protestant agnostic. Their respective versions of detheologized religion are still powerfully marked by the theologies that each casts aside. The point is especially obvious in connection with Comte, of whom it is a commonplace to say that he wanted Catholicism without God.5° Remarkably, he could not bring himself to accept that Catholic ritual and liturgy had a particular, hence contingent, historical origin. In a way that puts the coherence of his whole historical theory at risk, he attributes to the inventors of Catholic ritual profound wisdom and insight into the permanent needs of human life.51 There is said to have been a Victorian grammar text that described the order of words in the English sentence as "natural to the human mind." For Comte, Catholicism is the religion natural to the human mind, and in reinventing all its features the religion of humanity is merely recovering basic human insights that owe nothing essential to the theistic context that they once occupied. Comte develops a secular religion that, in stressing the importance of institutional support, effectively gives little or no weight to the element of personal consent. He is driven to this position because he does not believe there are such things as persons. What is called the person is a disparate and conflictual bundle of impulses, drives, and faculties. It can achieve order only through religion, religio, which "binds" together dispersed or warring things and makes them into one through repeated 47. 48. 49. 50. 51.

Mill, Collected Works, 10:488-89. Ibid., 232. Mill, Utilitarianism, 34: cf. On Liberty, 82. See for example Willey, Nineteenth Century Studies, 204-05. Or so I have argued in "Auguste Comte and 'Development' ".

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ceremonial exercises, public and private.52 Religious practices thus precede and constitute the self, and religious experience is something worked upon the self: it cannot be something that the self has chosen since there is no pre-existing "self to make the choice. Comte admits that in the age of Enlightenment the principle of consent must be recognized; hence the religion of humanity can be imposed only by the free renunciation of scepticism and the voluntary acceptance of a new dogma. But plainly, given Comte's psychological theory, such consent must be given before one knows what one is assenting to. There is a revealing parallel with Pascal's account of acquiring faith: reason's last act is to renounce itself, and it does so in favour of something that it cannot yet understand. For Mill, however, personal consent is related far more profoundly to religious belief. He explicitly attributes to the self the power not merely to submit itself to influences but to form its own character.53 Comte views consent as no more than a political necessity in an age in which people have become unaccustomed to obey; they will thus have to consent to the process that will make them obedient again. Needless to say, their initial consent to this process adds nothing at all to the force or value of the outcome. Consent merely solves a transition problem. Mill, however, conceives of full personal consent as an essential part of the authenticity of belief. In his essay "The Spirit of the Age," he refers to writers on religion who have developed the notion of "practical infidelity"—a notion he interprets in an interesting way to mean a state in which one espouses, but does not understand, true belief.54 He seems to be implying something similar, though in a secular context, in On Liberty: as knowledge advances the number of disputed questions must diminish, so that in some distant future nothing will remain to be questioned. This prospect affects Mill in rather the same way as his depressive fear, reported in his autobiography, that one day every possible musical melody will have been written. He can hardly deny the good of everything being known, for he has justified liberty, after all, precisely on the grounds that it alone enables us to know things. But at this point in Mill's discussion the argument from knowledge is superseded by concerns about authenticity.55 What is important is the way beliefs are 52. 53. 54. 55.

See for example Comte's Catechismepositiviste, especially Entretien 8. Mill, System of Logic, in Collected Works, 8:837. Mill, Collected Works, 22 (i) 1293. Mill, On Liberty, 107-08.

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held; that they are true is pointless if they are held merely as secondhand opinions and not vividly understood. Mill says that this condition is "exemplified" in the case of Christianity, or at least in the case of "the majority of believers" for whom the maxims and precepts of Christ are held as "dead beliefs, without being ever realized in the imagination, the feelings or the understanding."56 Mill's concern here is vividly anticipated in a trend of Protestant writing to which the themes of On Liberty are obviously indebted. Milton, for example, wrote in Areopagitica, that if a man believes "things only because his Pastor says so, or the assembly so determine, without knowing other reason, though his belief be true, yet the very truth he holds becomes his heresy."57 In the Letter Concerning Toleration, Locke argued that "all the Life and Power of true Religion consists in the inward and full perswasion of the mind," and that if we are not satisfied that our professions and practices are pleasing to God, they are "great Obstacles to our Salvation."58 Thus, On Liberty has far more in common with the ideas of Protestant theists than with Comte, even though Mill's views about God are much closer to Comte's than to any theist's. That, no doubt, is why Mill seizes every opportunity to defend the Reformation against Comte's withering attacks upon it as the beginning of scepticism or doubt, hence disorder. A more specific model for Mill's notion of belief can be found in "The Spirit of the Age," where he offers an attractive picture of religious community: Every head of a family, even of the lowest rank, in Scotland, is a theologian; he discusses points of doctrine with his neighbours, and expounds the Scripture to his family. He defers, indeed, though with no slavish deference, to the opinion of his minister; but in what capacity? Only as a man whom his understanding owns as being at least as well versed in the particular subject—as being a wiser, and possibly, a better man than himself. This is not the influence of an interpreter of religion, as such; it is that of a purer heart, and a more cultivated intelligence. It is not the ascendancy of a priest; it is the combined authority of a professor of religion, and an esteemed private friend.59

56. Ibid., 108. 57. Milton, Works, 4:333. 58. Locke, Works, 6:10-11. 59. Mill, Collected Works, 22(0:312-13.

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The importance of this passage as a model can be gauged from the fact that it reappears over thirty years later, virtually unmodified, in "Auguste Comte and Positivism" (although there, presumably as a result of Mill's having read Tocqueville on America, it is applied not only to Scotland but to the New England states).60 How might this long-standing picture of an ideal community illuminate the social ideal depicted in On Liberty':' To begin with, it suggests a precedent for Mill's clear distinction between "neighbours," with whom one "discusses," and children, to whom one "expounds." In common with On Liberty, it places primary stress on the virtues of criticism and the evils of "slavishness." Also in common with On Liberty, it makes a distinction between acceptable and unacceptable modes of authority, the one based on reasoned opinion and the other on the silencing of reason. It helps explain how the agnostic Mill, in providing an example of "truth put down by persecution," could write: "The Reformation broke out at least twenty times before Luther, and was put down."61 Above all, it draws attention to an important feature of On Liberty, its attempt to create a culture of mutuality: "Instead of any diminution, there is need of a great increase of disinterested exertion to promote the good of others"; people "should be forever stimulating each other to increased exercise of their higher faculties and increased direction of their feelings and aims towards wise instead of foolish, elevating instead of degrading objects and contemplations."62 This case must not, of course, be taken too far. Any theory attributing Mill's liberalism to his Protestant background would somehow have to deal with his fierce attack on Christian asceticism and on Calvinism in particular as a "narrow theory of life" fostering a "pinched and hidebound type of human character."63 It is profoundly wrong to think of human nature as something to be abnegated, not developed. " 'Pagan self-assertion' is one of the elements of human worth, as well as 'Christian self-denial' ",64 But surely it is not implausible to attribute to Mill, of all people, a power of discrimination. That he rejected certain features of Calvinism as a "theory of life" is not inconsistent with his attachment to other features. Even "self-denial"—though it has to make some room, Mill says, for "self-assertion"—remains a basic component of the religion of Humanity, which presents human progress as "an ideal object, 60. 61. 62. 63. 64.

Ibid., 10:321-22. Ibid., 130. Ibid., 130. Mill, On Liberty, 144. Ibid.

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recognized as of the highest excellence, and as rightfully paramount over all selfish objects of desire."65 How we respond to this moral paramountcy may reflect some deep presuppositions about the nature of religious life—the sort of presuppositions, it was suggested above, that stand between Mill's liberalism and authoritarian rivals such as Comtism. The case rests at some point on the defence of a particular vision of how life should be lived. The paradox, however, is that Mill's case is ultimately much more "Protestant" than Locke's. Although Proast and others attribute to Locke a wholly unrealistic idea about how people form their beliefs, a view that each person seeking sincere belief must start with nothing, examine everything, and reject all influences, he is far from holding such a view. He fully acknowledges the imperfect circumstances under which people form beliefs, the shortage of time, and the inevitability of social influence. Locke's Reasonableness of Christianity is clearly unlike On Liberty in its depiction of a society whose principal moral bond is unreflective reverence. Scripture, he says, "is a collection of writings, designed by God, for the instruction of the illiterate bulk of mankind."66 Even if there were a perfectly demonstrable morality, "the greatest part of mankind want leisure or capacity for demonstration," and "hearing plain commands is the sure and only course to bring them to obedience and practice. The greatest part cannot know, and therefore they must believe."^ The contrast with Mill's Calvinist/Scottish/New England idyll is remarkable. To be sure, Locke also has a powerful belief in the value of "reasoned freedom," as Peter A. Schouls calls it, the value of the human power to suspend judgement and to distance oneself from one's passions. But although he holds this belief about how to live, his theory of toleration is not dependent upon it. After all, the "dissenting congregation," whom the theory principally protects, barely comprehends the issues that divide it from the established Church, and even its teachers may be less than clear about them.68 The reasons for tolerating dissenting beliefs do not depend on any idealistic view of how they are arrived at.

65. 66. 67. 68.

Mill, Collected Works, 10:422. Locke, Works, 7:5. Ibid., 146, emphasis added. Ibid., 158.

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The toleration argument rests on "sincerity," as it were, rather than "authenticity" in that it does not rely upon any particular view about how initial beliefs were acquired but protects people who have already acquired beliefs against pressures to adopt practices that they reject. Because such pressure is not a "civil benefit," it is not among the things that contracting parties would assign to a state. This essentially negative argument contrasts with Mill's perfectionism, and it is not hard to think of one underlying reason for the contrast. Locke's neat and symmetrical division between states and churches demonstrates his belief in their complementary roles as institutional features of life. The list of "temporal" interests can be short if provisions for "spiritual" ones are made by other institutions. With Mill, however, "religion," albeit detheologized, enters diffusely into civil or even social institutions generally, providing the highest expression (and strongest motivation) for a spirit of mutual improvement. In the constitution of a liberal state (as of any other, he says) there must be something "sacred."69 What is sacred, however, is the principle of liberty itself, for it so happens that we can best meet our obligations to one another by respecting each other's freedom. Both Mill's perfectionism and Locke's defensive contractualism involve the value of self-choosing, and it may look as though they are just positive and negative ways of saying the same thing. Mill says we must choose our lives, Locke says we must not be made to live lives that we don't choose. However, there is a significant difference between the two. Mill's approach entails giving independent and in fact primary weight to autonomy as a value: it has to enjoy not only a separate but a quite special place on our list of values and thus obliges us to face extremely difficult questions. How do we know that, from any moral point of view people might adopt, autonomy will have pride of place? What can we say to people who believe that happiness or community must come first? This plays straight into the hands of antiliberals by making for them their own point that liberalism is just a view of life like any other, an ideal on the same footing as other ideals and capable only of being asserted in competition with them, not of occupying a different, political, moral space. Locke's version avoids this problem. When we refuse to live a life that we do not want but that others want to force upon us, we are certainly claiming a right of self-choosing, but it is not an independent value: it has weight only in conjunction with the values of the life that we prefer. Autonomy is not the value that we appeal to in exercising the right—the 69. Mill, Collected Works, 10:133-34.

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value is whatever the value is that we want to defend. To put it differently, it is not an abstract but a situated right; not a right to choose but a right to choose Vwhere Vis the life that one wants.70 No moral consideration attaches to the statement that choosing one's own life is the most important thing there is—a consideration that we can wave in the face of people who prefer to think that the most important things in life are to be found in the Bible or the Koran. The moral consideration is that if your V brings you into conflict with a way of life that the state tries to impose, then the reasons for which it is your Vhave weight not only for you (obviously, for they are your reasons) but for the state as well, unless we think that the reasons why states exist bear no relation to their subjects' own moral reasoning. This is a modest claim but perhaps a better judged one. It is more difficult to dispute the claim that we should respect the moral reasons of others than to challenge the doctrine that autonomy is life's main value. Moreover, the onus of proof is distributed differently. The liberal is not called upon to sustain a barely plausible case about ultimate values. Rather, the antiliberal is called upon to show why other people's values have no weight. If nothing else, this does seem better politics.

70. A very similar point is made by Will Kymlicka (Liberalism, Community and Culture, 11 — 12) in criticism of Rawls and Marx: our highest-order interest is not in exercising a capacity to choose or to create but in choosing or creating worthwhile lives. Kymlicka cites Dworkin, "In Defense of Equality," in support.

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Proast's resistance to Lockean toleration may be seen, I have argued, as the partially uncomprehending resistance of an older perfectionism to a new and different mode of political theory. The Proastian state serves immediately as an instrument of virtue: it is to use what power it has to make its subjects better, and in doing so it is sustained by a set of ideas that define unproblematically what is better. For Locke, on the other hand, what states can do is confined not just by the empirical limitations of power but by the prior conclusions of practical reasoning, which define, in effect, what a state is. Among the facts observed by practical reason is the diversity of belief about the good. This was distinguished from scepticism on the grounds that what Locke requires is not a belief that the good is problematic, but simply the fact of diversity, a fact that, given political prudence, limits direct appeals to ideas of the good in favour of a more abstract doctrine of entitlements. This line of argument appears to align perfectionism with persecution, contractualism with tolerance, and one important reason for resisting it is that perfectionists, too, can value tolerance: for an example one need look no further than Mill. They would indeed be committed to intolerance if they believed that there was just one sort of perfection, a single exclusive good; but why should they not accept many goods? This brings us to the topic of moral pluralism, a topic with a secure and important place in recent political thought, though it differs significantly from the early modern arguments with which I began. At the beginning of the modern period there were many arguments for toleration, of which three kinds were the most prominent. First, of course, there was the doctrine that persecution was un-Christian, being a denial of the pacific and clement virtues and of Scripture read in a pacific

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and clement light. Second, there was the politique argument based on the horrendous costs of trying to impose uniformity and the enormous political advantages of separating political loyalty and religious faith. And thirdly, there was a case built on what one might call the phenomenology of belief—that beliefs are experienced by those who hold them as involuntary things, and it is pointless for others to try to change them by means of sanctions directed at changing the will—a category mistake.1 It is perhaps surprising that none of these arguments require powerholders to doubt in any way the exclusive truth of the beliefs that they hold and in the name of which they incline to persecute dissenters; It surprising, given that in more recent thinking it is often assumed that an argument for toleration has to do just that. When powerholders have strong beliefs and are inclined to impose them on others, what we must do, it is thought, is persuade them to give up their monopolistic claims to rightness. We do not just want potential persecutors to accept constraints: we want them to change their minds. Most of these more recent arguments focus on Tightness; they make the case that, in order to secure toleration, all convictions ought to be held only tentatively on the grounds that proof is not to be had, or that new evidence can potentially unsettle all beliefs. For whatever reason, one is urged not to persecute because one might not, after all, be right. We should learn that our enemies may not be "perverse, bestial or lunatic,"2 that "there are no final truths not corrigible by experience,"3 or that liberalism only makes sense on "the epistemological assumption... that there can be no certainty about the truth or falsehood of given answers."4 Some of the problems posed by this approach have been noted above, and both its conceptual appropriateness and its political usefulness have been questioned. There is another kind of argument that focuses on monopoly: it is not that one might not be right but that there are several or many kinds of Tightness, and although it may be that one excludes another, it is not the case that the Tightness of one excludes the Tightness of another. This chapter sets out to examine arguments of this kind, principally as developed by Joseph Raz in a remarkable paper that also forms the conclusion of his book The Morality of Freedom but with some preliminary 1. 2. 3. 4.

All three are to be found in (for example) Pierre Bayle's Philosophical Commentary. Gallic, "Essentially Contested Concepts," 193. Berlin, Four Essays on Liberty, 190-91. Dahrendorf, Life Chances, 97.

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attention to their origin. The findings of the chapter are critical, and the conclusion will be that we would be better off thinking of toleration in the early modern manner, as the acceptance of a political constraint. That thought is naturally allied, as it is in Locke's case, with contractualism. The persistence of the idea of "moral pluralism" in political theory is due, beyond a doubt, to Isaiah Berlin. Against various kinds of monists who have been convinced that everything good can be expressed in terms of some single ideal or value, Berlin has persistently drawn attention to the incompatibility of things that are valued and to the diversity of human ideals.5 Many of his essays in intellectual history celebrate thinkers who have perceived deep conflicts between moral principles or visions of life that are not reducible to conflicts between right and wrong. These thinkers, Berlin believes, are important to us because they are free of the attractive but morally and intellectually crippling belief in the necessary and natural unity of the good. Thus, Machiavelli understood the deep conflict between "pagan" and "Christian" views of life, insisting on their irreconcilability and condemning as hypocrites those who tried to cover it up.6 Vico knew that history is not a matter of unrelieved progress since the achievements of one age are won only at the expense of the achievements of earlier ages, and there can be no simple accumulation of benefits.7 Montesquieu recognized the different political needs of different peoples and the different political systems, hence political qualities, that they would need8. And Herder showed that different civilizations, while they all display "humanity," do so in such divergent ways that we need great imagination and sympathy to grasp their visions and ways of life.9 These views differ from one another in significant ways, of course, but for Berlin they all point to the same moral: they lead us to reject the idea of human perfection for logical, not merely contingent, reasons. There can be no perfection because human life contains many powerful and compelling ideals, not all of which can be realized at once. Berlin says of Machiavelli (and he says much the same of the other thinkers 5. 6. 7. 8. 9.

See for example Berlin's "Decline of Utopian Ideas in the West." Berlin, Against the Current, 76. Ibid., 124. Ibid., 158. Berlin, Vico and Herder, 210.

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too): "If what [he] believed is true, this undermines one major assumption of Western thought; namely that somewhere... there is to be found the final solution of the question of how men should live. If this is false (and if more than one equally valid answer to the question can be returned, then it is false) the idea of the sole true, objective, universal human ideal crumbles. The very search for it becomes not merely Utopian in practice, but conceptually incoherent."10 This claim is at the heart of Berlin's rejection of "utopianism," which is mistaken precisely because it imagines a society in which all good things coexist harmoniously, while in reality some good things destroy or nullify other good things, so that perfection is inherently impossible. How does this relate to Berlin's political theory? In "Two Concepts of Liberty," belief in the plurality of goods operates in support of his defence of the value of negative freedom. Put simply, if freedom is taken in its "positive" sense and identified as an actual exercise or enjoyment you are free if you can actually do what you want to do - then a state will have to decide which of many possible exercises or enjoyments is worthwhile and will therefore promote and enforce some vision of life. But since there are many incompatible visions, any decision is necessarily oppressive to those who do not share the vision privileged by the state. However, if we define freedom "negatively" as opportunity - you are free to do those things that no one forbids you to do - then individuals can make their own choices from among the many possibilities.! 1 But here the reader may at once be struck by a basic and important shift of perspective. In Berlin's essays in intellectual history the perspective is global: autre pays, autres moeurs. It is all right, or even essential, from this point of view, that each pays should wholeheartedly embrace the moeurs that belong to it—for the sin is embracing someone else's, or imposing one's own upon them. The perspective of global diversity, then, would presumably tend to favour the steps taken by cultures to maintain their vigour and particularity, steps that are unlikely (to understate the case) always to be liberal ones. So how do we get from the celebration of diversity to the defence of liberalism? Berlin ends his essay on liberty with the thought that the "pluralism of values" that he defends may be "only the late fruit of our declining capitalist civilization."12 This might seem odd given the long pedigree he 10. Berlin, Against the Current, 76. 11. Berlin, Four Essays on Liberty, 167-72. 12. Ibid., 172.

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claims for the notion through Machiavelli, Vico, and so on. But surely "pluralism of value" has taken on a new kind of meaning here, referring to a pluralism within lives, not merely between them. When Herder, for example, noted the different visions of life in the Old Testament (the life of "a shepherd among shepherds") and in the Edda sagas (the life of men "on board a ship struggling through the Skaggerak")13, his intention was to show how remote these experiences were from that of eighteenth-century Germany, and from each other. But at the end of "Two Concepts," Berlin is clearly envisaging conflicts of value that individuals experience within their own societies and perhaps within their own individual lives. "Moral pluralism" thus becomes the awareness, not just the fact, of diversity. The distinction is an important one, for factual moral pluralism (perhaps better termed "plurality") can exist in the absence of pluralists; Israelite shepherds and Norse sailors flourish in their respective particularity without mutual understanding or even knowledge of one another. This may suggest an initial and tentative conclusion. The idea of diversity relates in the first instance to a relationship—one of contrast— between ideas, or images, or visions. But the political meaning of these contrasts depends upon how these ideas are distributed: it depends on who holds them, and how. It is one thing if the world is made up of monists whose diversity is brought to consciousness only in the mind of the observer, something else entirely if the world is made up of actors who are (first) conscious of, and (second) respectful of, the diversity among ideals, or even (third) torn between these ideals themselves. If this is so, then moral pluralism may in one important way be deficient in its basic depiction of political society, which cannot be modelled in terms of relations among ideas. It has to be modelled in terms of relations among human subjects, who hold certain ideas in certain ways. But it remains to be seen whether this distinction has any analytic importance. The elaboration of moral pluralism by Joseph Raz is very Berlin-like, up to a point. "Moral pluralism is the view that there are various forms and styles of life which exemplify different virtues and which are incompatible."14 Complete moral perfection, Raz continues, is therefore unattainable: "Whichever form of life one is pursuing there are virtues which 13. Berlin, Against the Current, 210. 14. Raz, "Autonomy, Toleration and the Harm Principle," 159.

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elude us because they are available only to people pursuing alternative and incompatible forms of life." Hence a sort of moral Pareto optimality reigns; when we have perfected our way of life, we cannot add extrinsic virtues to it, virtues drawn from some other way of life, without subtracting from its perfection. What Raz does with this idea, however, is different from what Berlin does. It enables him to say that, since morality is not monistic, its positive promotion by the state does not commit it to a totalitarian project; in promoting morality, it will promote the many different ideals that morality contains and thus not be oppressive. This deft reversal of Berlin's strategy rescues liberalism from several problems created by the doctrine of negative freedom. In particular, it relieves liberals of the need to claim (unconvincingly) neutral disregard for the value of the opportunities that freedom protects. Obviously not all opportunities are equally valuable; but in devoting resources (rightly) to protecting some but not others, how is one being neutral? The burden of answering this question is lifted at once if one frankly admits that the liberal state, like any other, is dedicated to the pursuit of goods and is tolerant not because it detaches itself from judgments of goodness but because it acknowledges many goods. It acts in such a way as to preserve those goods, when they might otherwise disappear, in order to preserve the conditions under which its members can enjoy autonomy. With this claim, one can see the basic intellectual structure set by Locke—with its separation between personal judgments about the good and public judgments about legitimacy—being pushed to one side. Like Berlin, Raz ties together moral pluralism and autonomous choosing. In Berlin, however, the tie is loose and informal: moral pluralism is one of the things, perhaps the most important, that may disincline people to persecute other people for the choices that they make. One can easily think of other things that could play this role, such as broadmindedness or simple laziness, or (as he claims in Mill's case) belief in fallibility. But for Raz the tie is close and necessary: moral pluralism is logically required by the very concept of autonomy. This is because if I am given a choice only between good and evil, the choice is not autonomous but coerced. I am coerced into becoming an electrician if my only alternative is to kill someone, for autonomy requires a choice between goods.15 So my choices can be said to display autonomy only if there is more than one morally acceptable option: hence moral pluralism. Note that this is different from saying, along Berlinian lines, that in a society 15. Ibid., 158.

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in which many kinds of good life are recognized people stand a better chance of finding one that suits or fulfils them. It amounts to saying, much more strongly, that autonomy consists not only in the adoption of a good that one values but also in the simultaneous rejection of other goods that one recognizes. And this makes sense only if there is a reason to give weight to rejection as well as to adoption; to be autonomous I must not only live the life I want, I must refuse the choice of others. Thomas Hurka offers one way of arguing for this stronger position.16 Hurka rightly raises the question why it is important, for people whose clear first choices are open to them, that there should be second, third, fourth choices, and so on, available too: if all they want is A, why does it matter that B and C, which they do not want as much, should also be there? His answer is that the more choices there are, the more rejections a person's choice embodies; hence the more effective the person is, being responsible for more. This certainly answers the question but at a cost that seems troublesome, for it makes one's efficacy depend on circumstances almost wholly beyond one's control—a paradoxical result for a theory stressing responsibility. It does not distinguish between people who put themselves in the position of having alternatives (for example, by qualifying for two attractive careers, then picking one) and people whose alternatives are created for them. At any rate, this cannot be Raz's approach. He notes that no given individual is likely to need the whole range of acceptable options that must be available to secure the autonomy of a whole society of people.17 For both personal and cultural reasons different people will have different aptitudes that fit them for some options but not for others. Implicitly, therefore, Raz rejects the view that we can measure people's autonomy by listing and counting (or even ranking) the roads they do not take: they have to be roads the person might plausibly have taken, not just formal possibilities. This is much more reasonable. But the result is that the tie between moral pluralism and autonomy is weakened, or at least qualified, because we can no longer explain the importance of alternatives to the committed person. Society might make a thousand morally valid options available, but for Raz's argument to apply, any given individual need be attracted to only two of them for his or her choice to count as autonomous. What, however, is the function of this second option, if the other 998 are functionless? If the individual is attracted equally, or even in significant measure, 16. Hurka, "Why Value Autonomy?" 17. Ibid., 164.

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to both, then it is important that the two options should be available simply because people should not be coerced; they are more likely to get the lives they want if the options that appeal to them remain open. This takes us back to the weaker Berlinian claim, noted above, about the evils of coercion, a claim assisted by moral pluralism but scarcely entailing it—any more than it is entailed in Locke's acceptance of diversity. On the other hand, if one of the two options attracts a person far more than the other, it is hard to see why the existence of the other is important (Hurka's question),18 in the absence of an argument to the effect that every exclusion somehow adds to the efficacy of a choice. People may still be choosing autonomously, in at least some of the senses in which autonomy seems a valuable thing to have. They are not making coerced choices, and they see the lives they take on as their own, as expressive of who they are. Does it mean anything to say to people with a vision or ideal of life that at least one other "morally acceptable" option is open to them? Those who feel that only the stage, for example, can give them satisfaction and fulfilment will be uninterested in the fact that being an electrician is a "morally acceptable" alternative: it is not a good alternative for them. There seems to be a gap between the breadth of the social validation of life choices and the effective context of individual commitment. To see this, consider the following. For a society, the important thing may be to provide a range of openings in which diverse individuals with different likings and talents can find a fulfilling and productive place. For the individual, however, the important distinction may be between freely embracing one's ends and being pressured and conditioned. So the same path may have different values, regardless of the range of alternatives. Hence it is not the range of alternatives that decisively distinguishes autonomy from its opposites. It is important to distinguish Raz's position from the claim that when the range of alternatives is wider, it is easier to tell whether someone is autonomous. The absence of alternatives certainly makes autonomy less visible. If a school makes everyone play cricket its teams will include both autonomous and heteronomous players, and obviously the fact of someone's playing cricket will tell us nothing about the matter; whereas if the school offers, say, a skateboarding alternative, we can infer somewhat 18. Hurka notes (ibid., 380-81) that the concept of autonomy is "far from univocal," and that it would be "perfectly acceptable" to regard someone as autonomous in terms of how they embraced their life, regardless of the number of options. So perhaps there are different ideas of autonomy, but I cannot find in Raz a defence of the idea of autonomy that he prefers, and that carries a good deal of weight in his discussion.

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more, though still nothing conclusive, from what a given individual does. But for those who love either cricket or skateboarding and detest the other, how can we say that their autonomy is increased by the presence of the other? It is permitted, common sense suggests, by the presence of the one that they want. If so, then the link between moral pluralism and autonomy is a probabilistic (Berlinian) one cast at the level of social policy, and not a logical (Razian) one cast at the level of individual choice. But even a probabilistic connection is worth something in political theory, so let us consider its application to the topic of toleration. To tolerate someone is to grant them a freedom, but it is to do so, as Raz rightly notes, under special circumstances. These include the circumstance that the action you grant someone the liberty to perform is one of which you, the tolerator, disapprove. Raz does not fall into the trap of thinking that toleration is in the same category as love or sympathy: love and sympathy may make toleration unnecessary, for the notion applies only in the context of serious disapproval. The core problem in justifying toleration, then, is to explain convincingly why one should ever allow someone to do something that one disapproves of. Raz's theory contains an answer. Moral pluralism is the view that there are different life choices that lead to the cultivation of virtues that are not only different but incompatible, in the sense that there is no room in one person's life for all of them. This means that each person's development will be bought at the cost of certain personal deficiencies, i.e., things they will not do or have that they would do or have if they had chosen and cultivated a different life. Another person who has cultivated other virtues may feel contempt for these deficiencies and be tempted to respond negatively to them; but upon reflection that person will come to see that the other's deficiencies are the necessary correlates of admirable virtues.19 We thus have a situation that meets all the conditions of an act of justified toleration: A dislikes B but finds a good reason not to act on his dislike. To this fairly standard definition Raz adds the condition that A had a reason for disliking B in the first place. Presumably this condition is added to exclude irrelevant cases of sheer prejudice or irrational loathing, which are cases in which A's duty is not to "tolerate" B but, rather, to set about changing himself. This seems quite reasonable. It is no doubt possible for me to say that I can tolerate horrid people 19. Raz, "Autonomy, Toleration and the Harm Principle," 162-63.

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who deny that I am Napoleon, but any moral credit I can claim for this seems marginal in comparison with other cases in which the origin of the problem lies in someone else's character, behaviour, or belief, rather than in mine, and my claim to be tolerant ought to be received with irony. Virtues are "incompatible" if they cannot be embraced by a single life. According to Raz, the reasons for this may be conceptual—no one person, for example, can possess all the virtues of a nun and a mother20— or strong but contingent—it is difficult to lead a life both of action and of contemplation, although there is no reason why one could not be, say, a martial arts instructor and take early retirement to write a book on Spinoza. What is possible in this realm seems to be quite elastic and unpredictable. It is possible to be a High Court judge and a Zen Buddhist; a porn star and an Italian deputy; an art historian and a Soviet spy. It is a minor but curious effect of Raz's argument that such many-sided people have far less reason than the rest of us to be tolerant, for they have far less reason to suppose that incongruous attributes cannot be reconciled in one life. But this, of course, is of little practical consequence; such people would have correspondingly fewer opportunities to be intolerant since they would have a higher probability of meeting people whose virtues they shared, having a wider range of virtues themselves. Be that as it may, Raz's general line of argument seems to depend excessively on a symmetry between the relations between features of a person and relations between persons. For Raz, it is the incompatibility between people's individual features that explains the sources of intolerance between them and it is the recognition of this that leads to a remedy for intolerance. But the argument is unconvincing. Let us take the case of someone choosing between life as a clarinettist and life as a shepherd. The choice between the two is far-reaching, or, as Raz puts it, "pervasive"21—the decision will affect almost everything else about the person's life, including the kinds of virtues he or she may develop. Although there is no conceptual incompatibility between shepherding and clarinet playing, there is a very strong contingent improbability that one person will have the virtues of both. Yet history records neither persecution of clarinettists by shepherds nor clarinettist-inspired shepherd pogroms. At a guess, one would find more instances of hostility between clarinettists and saxophonists, or shepherds and goatherds, even though 20. Ibid., 159. 21. Raz, The Morality of Freedom, 409-10.

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in these cases the choice of profession is less "pervasive" and the virtues less incompatible. As Simmel and Coser put it: "A hostility must excite consciousness the more deeply and violently, the greater the parties' similarity against the background of which the hostility arises."22 This may be because clarinettists and shepherds develop their respective excellences largely in isolation from one another, so that occasions for intolerance arise infrequently. However, this escape route is not available to political cases of intolerance that hinge on collisions of belief and not on the formula proposed by Raz (or by Simmel and Coser, come to that). In such cases the meaning of "incompatibility" is surely quite different. Rival beliefs are not just beliefs that one person cannot combine but beliefs that in principle exclude one another, even when held by different people. Are they, then, more like the nun and the mother? To the extent that they are exclusive in principle, yes; but the analogy is still not right, for there is no reason why nuns and mothers cannot coexist despite their differences, but there is a reason why rival proposals for the use of public resources cannot just coexist and why one of them has to win. Poets and policemen, whose virtues are different, may well dislike each other, though some may not; in real life there may or may not be a counterpart to P. D. James's fictional poet-policeman Adam Dalgliesh. But these possibilities do not touch the question of mutual toleration between "rednecks" who want more spending on law and order and none at all on culture, and "elitists" whose priorities are the reverse. Whether or not two values can be combined in one person's life and how those values can coexist in political society are two different questions. A second problem in Raz's case is that of perspective. As I have shown, the term "moral pluralism" can be used in two different ways. At first, in Raz's account, it refers predominantly to a belief or "view" or "claim"; that is, it is a philosophical position. Later, however, it is taken to be a set of relations, socially and politically embodied, that (in a good society) "exists" and "generates conflicts."23 In the first usage moral pluralism figures as a belief, held to be true, that guides the political philosopher in outlining what a good society would be like; in the second usage, it has to be not just a true belief but a diffused, accepted, and institutionalized one that actually contributes to the functioning of a good society. Moral pluralism has to take on this character at some point because it is meant 22. Coser, The Functions of Social Conflict, 67.

23. Raz, "Autonomy, Toleration and the Harm Principle," 165.

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to function not only as a description but also as a remedy for people's intolerance, and it could not do so unless it were a belief that they held themselves, not just a dream of the Founder. Here, against his own intentions, Raz is in danger of eliminating toleration as a category and replacing it with "broadmindedness" or ecumenicalism or some such thing. He gives the examples of a prudent and cautious person, a good committee man, who is offended by someone else's fanaticism,24 and a person of mercurial character who is irritated by someone else's "very deliberate manner of speech."25 What these people have to learn, Raz says, is that while these traits are understandably annoying, they are limitations of character that accompany corresponding virtues. How does this new reason for tolerance stand in relation to the original reason for dislike? It must either override it or undermine it, to employ an illuminating distinction of Charles Taylor's.26 If the first, the original reason for dislike retains its weight when the new reason for tolerance is introduced, although it is outweighed. But does it in fact retain its weight? If I reflect often enough on the fact that colleague X, although he talks like a sedated John Wayne, is nevertheless a pillar of the department and unimpeachably solid and trustworthy, my irritation at his manner of speaking must surely temper itself. At the least, I will come to be a bit ashamed of it. And as soon as it strikes me as irrational, it becomes something more akin to mere prejudice, which, Raz implies, we should try to get rid of. If, on the other hand, the initial reason for dislike is Undermined, not merely overridden, by what Raz sees as the reason for tolerance, the notion of tolerance no longer applies—that is, it is no longer the case that one feels both that there is a reason to suppress something objectionable and that there is a stronger reason not to. At the very least, have we not taken several steps towards the "Napoleon complex" situation in which, whatever it is that I can do, what I ought to do is think differently? Then, too, some faults are not just limitations of character but are morally pernicious besides—a consideration that raises genuine questions of toleration. The plurality of goods does nothing to diminish the wickedness of evil, as Raz himself insists. But here, while dealing head on with toleration, Raz appears not to have a theory of toleration, a body of reasoning that would make tolerant conclusions convincingly 24. Ibid., 164. 25. Ibid., 162. 26. Taylor, "Neutrality in Political Science," 39.

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determinate. We may set aside those cases in which a morally wrong action causes harm by damaging another person's autonomy; such actions should not, according to Raz, be tolerated. They are ruled out by respect for autonomy itself, which obliges us to provide the conditions under which other people can enjoy autonomy. But what should we tolerate? In the case of morally wrong actions that do not damage another person's autonomy, the principle of autonomy itself does not lead immediately to any practical conclusion. On the one hand, "the availability of repugnant options, and even their free pursuit by individuals do not detract from their autonomy"217; hence the value of autonomy does not require us to eliminate such options. On the other hand, "pursuit of the morally repugnant cannot be defended from coercive interference on the ground diat being an autonomous choice endows it with any value,"28 a point supported by reference to the argument that "autonomy is valuable only if exercised in pursuit of the good."29 So we are required neither to eliminate nor to tolerate repugnant things. Raz tries to settle the issue by deploying an argument at a different level, namely, that the use of coercion is itself sweepingly invasive of autonomy—it prevents people from doing things other than the repugnant ones—and so should be avoided except in protecting the autonomy of others. So if the requirements of autonomy itself leave the issue balanced, as it were, considerations about the nature of coercion tip the balance in favour of liberty. That this is very much a side argument to Raz is shown by his view that coercion is not a necessary component of the toleration situation at all, just one that happens to be of interest to political scientists.30 It is a consideration arising only in a special case, i.e., one in which intolerance has consequences that are broader than the obstruction of what is disapproved of. Raz's approach makes toleration precarious. First, there are important cases in which liberty is not protected by the consideration of "sweepingness," that is, the point that coercion is a blunt instrument that prevents people from doing innocuous things as well as repugnant ones. A classic toleration issue is censorship: but censorship may be accomplished by a simple and non-"sweeping" denial of access—or even, where publishing or broadcasting or performance is subject to licensing, by nothing more 27. 28. 29. 30.

Raz, "Autonomy, Toleration and the Harm Principle," 174. Ibid., 173. Ibid., 169. Ibid., 163.

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coercive than withdrawal of permission. Second, repugnant uses of autonomy may be open to an objection that Raz's discussion does not answer. It is true that, as he claims, repugnant options do not detract from the autonomy of agents, and in that sense (if not harmful) are a matter of indifference—not instances of "autonomy that matters," as Waldron puts it.31 But the case against tolerating them might be that they detract from autonomy that does matter, the pursuit of valuable options. Perhaps the most famous example of such a case is Rousseau's complaint, in the Letter to d'Akmbert, that when citizens spend their afternoons at the theatre they are neglecting their civic duties: so the theatres should be closed. It is not clear that Raz creates strong enough walls against this kind of illiberalism. We can of course challenge claims such as Rousseau's by pointing out, for example, that history does not support the view that politics and the theatre cannot flourish together. But what reason is there to think that such counterarguments will generally win, so that toleration will generally be the outcome? Raz offers none, and it is hard to think of one. By way of conclusion, I want to set out two general considerations. The first is that while moral pluralism has a lot to say about the conflict between goods, the conflict between good and bad—surely central to the issue of toleration (what should the good do about the bad?)—is tackled only equivocally. Toleration is an important issue wherever people strongly disapprove of others on the basis of first-order views that they hold to be true and must be given reasons not to act coercively on their disapproval—as Milton, Locke, and Mill32 set out to do. But moral pluralism is a second-order view that relativizes conflicting first-order views as legitimately partial but complementary expressions of human choice or interest or need. Hence the dilemma noted above. If it remains a second-order view, it renders admirable a political system in which partial and complementary moralities coexist but has no power to explain how it is that the system's members put up with one another, for they act on their first-order understandings. But if it is to become a citizen's view (and how is that to be achieved, anyway?) it would seem to lead to reconciliation, not to tolerance. 31. Waldron, "Autonomy and Perfectionism," 1141. 32. Berlin's view that Mill was a closet pluralist requires separate treatment: see Four Essays on Liberty, 173—206.

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This leads us back to one of the puzzles of Berlin's "Two Concepts of Liberty," which begins with a strong statement of the essentially conflictual nature of politics: "If men never disagreed about the ends of life, if our ancestors had remained undisturbed in the Garden of Eden, the studies [of social and political theory] could scarcely have been conceived. For these studies spring from, and thrive on, discord."33 But what happens to the subject of these studies when, instead of discord, we end up positing a first-order sense of human variety and of the partial nature of all virtues, including our own? It is true that having a sense of the diversity of human ends is not inconsistent with fighting for one's own: but the understanding that other perspectives quite legitimately exclude one's own makes discord morally problematic.34 This may be a weak objection. It may very well be that the notion of toleration only applies where one person or group disapproves of another to the point of wanting to suppress what they think or do. However, if the objective of toleration is to prevent such suppression, then it is met even more effectively if people lose the desire to do it. So the criticism noted above may be a bit like complaining that someone promised to deliver something by June but let us down by delivering it before May. For this reason, I would place more stress on the second consideration, which is that within the idea of toleration some weight must surely be given to the fact that an idea is someone's, and not just to its relation to other ideas. Suppose a hurtful, anonymous, and unclaimed graffito ("Six million did not die," "Feminists = manhaters," or whatever) appeared in a prominent place. Assume, to avoid extraneous factors, that it is on private property, that the owner doesn't care, and that no zoning regulations apply. Would any important consideration of political morality stand in the way of its removal? Surely not. But if the same statement is made by identifiable persons and put forward as their view, the matter becomes more difficult. I do not mean to commit myself to saying that the graffito should be removed and that the people should be tolerated; either of 33. Ibid., 118. 34. Could one combatively advance one's view, knowing it to be only partial, for the sake of maintaining "discord"? There would be paradoxes here similar to those discussed by Elster in "The Market and the Forum." Even though political participation may lead to political education, we cannot appeal to its educative properties in arguing for it, Elster says, since it will be educative only if participants are seeking something other than education. Likewise, moral pluralism would seem to require discord between people with exclusive moral beliefs—not between moral pluralists.

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those views would be contestable. I simply want to say that the two cases would require different treatment and that moral pluralism—if it takes the diversity of ideas rather than the distinctness of persons as its point of departure—cannot explain why. The basic and very Lockean point here is that when suppression or punishment is an issue, considerations of Tightness and wrongness are no longer decisive. The question of legitimacy has to be raised, for the issue is no longer whether A is right and B is wrong (or some more complicated version of that) but whether or not A can properly correct B. It has to be shown, in other words, not just that what A proposes to do is right but also that A is right to do it. Obviously, whether or not A is right to do it will depend largely on the means that A proposes to use; for this reason, it seems misguided to relegate the topic of coercion, as Raz does, to an altogether secondary realm. For what the topic raises in its acutest form is exactly the question what one person may do to another, right or wrong. That is the issue on which Milton, Locke, and Mill said such powerfully moving things, and it is hard to appreciate the force of what they said unless we bear in mind the drastic nature of one person's attempt to change forcibly, and with full public sanction, the life of another. If that is wrong, it is wrong because of considerations that bear upon relations between people, and not because of a relationship between the ideas that people have. Locke is concerned, as we have seen, to analyze situations of conflict in terms that initially bracket out the parties' claims, in order to establish what one party is entitled to demand of another. In a context of pure reasoning (or "philosophical communication"), it would be irrelevant whether one person or another entertained a reason; only the validity of the reason would matter, regardless of who held it. But in a political context, it becomes crucially important who holds what reason, for that determines which reasons are to be enforced and which overridden. So we need a set of principles that will regulate the demands that people, viewed in abstraction from their beliefs, may make upon one another, and this is provided by a contractual theory that treats people as equal and interchangeable parties who need to agree on the terms of their association. These will have to be terms, moreover, that the parties can agree to submit to mutual interpretation (as required by the idea of "public reason," for example,) since no other interpretation is available. It is Locke's belief that this structure of argument will impose a set of constraints and the conditions for toleration, which will apply in a restrictive way to the real-world and contested beliefs that are then introduced

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beneath this constitutional structure. We may not want all of our commitments to be exposed to mutual interpretation when this carries with it the weight of political authority. The difference is that moral pluralist approaches begin with conflicts among ideas and treat people as bearers of those ideas. Political society is envisaged, it would seem, as a structure of exclusive possibilities among which its members move. Locke's approach, by way of contrast, examines several kinds of relations—between members of a church, between citizens, and between citizens and their rulers— in the light of what entitlements one person would agree to confer upon another. These relations are abstractly defined, with the result that, before particular substantive moral or religious views are brought into play, a scheme of restraints and obligations has already been imposed, one that assigns what can be "allowed" to "a papist or a Lutheran, a presbyterian or an anabaptist... a Jew or a Mahometan."35 Once that has been done, moral pluralism is no longer determinative just because no belief of that kind is any longer determinative. Of course moral pluralism need not claim to provide the only basis for toleration. Indeed, the moral pluralist would want non-moral pluralists, such as Kantians, utilitarians, or Christians, to believe in toleration even though their belief would rest on non-moral pluralist foundations. But how, from a moral pluralist point of view, can we show them those foundations? We seem, once again, to have run into a problem of perspective. Moral pluralism depicts society in a certain way, as a plurality of strong beliefs about how to live. But many or most of those who live in that society hold strong beliefs that lead them to reject this depiction and posit instead a confrontation between true and false beliefs. How do we relate the theorist's metaperspective to the perspectives of citizens in such a way that the politics of the latter will correspond to the expectations of the former? It seems hard to find a response to this problem that does not rest (however lightly) on the "Lockean" exercise of defining a set of entitlements that are defensible without direct appeal to particular conceptions of the good. This is not to claim that such a position is more saleable, only that it is possible to advance it consistently.

35. Locke, Works, 6:111.

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To side with Locke against Proast is to take the side of a critical political theory against the authority of the given. Locke wants to attach legitimacy to a state that can be justified in relation to other states that might potentially exist, starting from a political tabula rasa. In order to do so, he raises the question why we should have a state at all, or why "commonwealth" (as he puts it) should replace "neighbourhood." Since the very reasons why we should have a state severely limit what any state can legitimately do, certain kinds of state are ruled out. Proast, for his part, is simply not interested in exploring this avenue of justification. Instead, he is prepared to argue from what is constitutionally required by the state that we have. "You own yourself of the Church of England," he says to Locke, "and consequently you own the National Religion now in England, to be the true Religion; for that is her religion. And therefore if you believe there is but one true Religion; there is no help for it, but you must suppose, with me, that the National Religion now in England, back'd with the Publick Authority of the Law, is the onely true Religion."1 This is quite unsatisfactory even on its own terms. First of all, it seems to suppose that "the National Religion" can be incontestably identified and defined, and that the range of importantly different views about its comprehensiveness can be set aside. Second, it makes "true Religion" the hostage of whatever authority has the final say about it, in this case the Crown, as head of the Church. Locke exploits this point with some malice, noting that for all his defence of authority, Proast is clearly dismayed by the tolerationist policies of the post-i688 regime. A fuller version of Proast's position, however, would have to take into account his i. Proast, Letters Concerning Toleration (2), 11.

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apparent view of the headship of the Church as constitutionally limited and of toleration as not "lawful."2 It is deeply paradoxical that Proast, in the post-revolutionary period, should uphold the authority of a church and a state that had fallen into the wrong hands. But let us bear down upon Locke's political theory; let us suppose that we must set aside all appeal to what is constituted, and justify the legitimate state by means of a contractualist argument. Locke holds that if we do so we can justify only a liberal state, one that is constrained both in its scope and its legitimacy. All this is entailed in the notion of "internal limits," mentioned above. But there remains the important counterargument that Locke does not go far enough. Once we deny the authority of the given and adopt a critical politics, must we not go wherever the critical politics takes us? If we refuse to, have we not ceased to be critical? And if we value criticism, should not our overriding goal be to create institutions that sharpen and refine public debate, in order to generate a "public philosophy" that would consist of the best moral arguments that public debate over public issues could lead to? Thus, Locke may defeat Proast, but in doing so he may set in motion forces that sweep his position away and take us far beyond "toleration." Moreover, the still-more-critical theory that Locke's position may invite seems to have an important edge over his own, in two respects. First, Locke needs a critically based way of setting limits to the scope of political power, or of accepting some kinds of justifying reasons for policies while excluding others. But once you have set criticism in motion, can any such distinction be guaranteed to withstand it? It would rest, let us assume, on moral reasons; but the aim of criticism is itself to find the best moral reasons possible, and we cannot know in advance that, once found, they will not supersede distinctions that previously seemed convincing. Second, the still-more-critical approach is surely as close to selfvalidating as a political theory ever gets. It need appeal only to the value of criticism, and so it requires of us no more than acceptance of the very activity in which we are engaged, i.e., political argument. Locke, on the other hand, requires acceptance of substantive principles—those of a law of nature—in order to get his approach started. Like his successors in the liberal tradition, he therefore faces the problem of having to persuade people attached to a range of substantive principles to accept the paramountcy of a liberal one. 2. See Champion, The Pillars of Priestcraft Shaken, for a discussion of Anglican views.

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These and other arguments make up an important body of current thinking that would relegate the very notion of toleration to the past. It was a notion that sought protectively to rule some things off the state's agenda, claiming the support of principles that were said to transcend the perspectives of faction or party. But now, it is argued, political theory must now embrace a more democratic definition of the state's agenda, and what that agenda consists of will be determined, deliberatively, by citizens. Their decision will reflect the clash of actual beliefs, not the hypothetical beliefs of people in some fictitious state of nature or original position. There is no metapolitical or Archimedean point from which agendas can be defined; hence the right to be protected is transformed into the right to assert one's views, rationally, in a process through which a political community's best collective judgment will be reached. The right to be tolerated is superseded by the right to deliberate. This is a composite picture that may, in its entirety, find no adherents, but I sketch it as a way of suggesting that toleration is a precarious value when strong notions of democracy are in the air. Since this chapter cannot take on the whole composite position, I will focus on notions of displacement—that is, on versions of the idea that arguments that may once have supported toleration must now, by evolution, transform themselves. Such a view is implicit in several texts that I shall examine in this chapter, but it is quite explicit in an important paper by Amy Gutmann and Dennis Thompson, which seeks to transform Locke's theory of toleration into a "Lockean" theory of democracy.3 By calling it "Lockean" they mean to imply not that Locke would have held it but that it follows from his best arguments. The starting point for the proposed radicalization of Locke is the non-sceptical nature of his case for toleration. One can imagine a case for toleration based on a premise that the truth cannot be known about some disputed matters. Since it cannot be known, the state should remain neutral, and it demonstrates neutrality by not acting to resolve the dispute, tolerating both sides. We have already looked at some of the shortcomings of such a case. Gutmann and Thompson rightly dissociate Locke from such an approach, stressing instead his "premise of validity"; that is, his view that "although there may be no way at any particular 3. Gutmann and Thompson, "Moral Conflict and Political Consensus."

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time to persuade even reasonable people to follow the true religion, it may be the case that there is a true or valid religion, consistent with, if not knowable by, reason."4 It is not scepticism but truth seeking that underlies toleration. Moreover, truth seeking, by its very nature, cannot be accomplished by coercive means but must be a matter of persuasion by evidence and argument. In addition to his "premise of validity," then, Locke has "a premise of rational deliberation."5 This premise plays the important role of distinguishing deliberative democracy from a rival version of strong democracy, the "politics of difference" version (as it may be called), which likewise rejects the liberals' Archimedean point but takes the further step of denying that there is a shared rationality within the political process itself. Against such views, the premise of rational deliberation entails the idea of openness to argued conclusions. In Locke's case for toleration these two premises serve to preclude certain issues—religious issues—from the public agenda. But, Gutmann and Thompson contend, we must also examine how they serve to accommodate issues that have already reached the agenda. There are at least two reasons for doing so. First, intuition suggests that it may be something specific to religious issues that makes their preclusion attractive— perhaps the necessarily individual and non-shared nature of salvation. We would certainly hesitate to extend the case to all issues of a morally divisive kind, and even if we wanted to we could not, for in some important matters preclusion amounts to taking a moral position just as much as legislation does. Second, the case for attending more closely to "accommodation" gathers weight from Locke's apparently inadequate (and certainly cursory) treatment of public decision making. The practice of majority rule (in ordinary legislation) is introduced by Locke in the second treatise of government, with only the slightest of explanations, and its consistency with his doctrine of individual liberty has sometimes been questioned. It is "necessary," he says, if the people are to express a single view. But this is apparently a thought-fragment that bears no clear relation to his theory of individual rights; the more radical Locke proposed by Gutmann and Thompson would have a theory of democracy that was more robustly tied to his general political and ethical theory. This proposal depends upon agreeing to take a step that looks plausible but requires examination, the step from individual to collective 4. Ibid., 127. 5. Ibid., 128, emphasis in original.

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deliberation. For Locke, "faith follows rational persuasion: it is not an act of will that a person chooses to bring into conformity with the dictates of authority." And: "The secular analogue... holds that democratically formed, collective moral judgments by society must be a matter of deliberation: citizens should choose, deliberately, the principles of public morality."6 This does not seem to be the most likely secular analogue of Locke's doctrine of religious belief. The most likely would surely involve a straightforward substitution of secular for religious belief in an account of moral decision. We want people to make their moral decisions on the basis of sincere and considered moral judgments. And whatever our account of collective judgments is going to be like, we want it to make room for the conscientious judgments of individuals who form less than a majority, as in the religious case. This would be more difficult, of course, if collective judgment itself had become the analogue of conscience, assuming not only legitimacy in the political sense but Tightness in the moral sense too. But that is an argument from consequences, and it tells us nothing about why the analogy fails. What are the broadest reasons that Locke himself provides? In the Essay, considerations about the nature of language are brought to bear upon the difference between private and public deliberation. In his chapter "Of the Imperfection of Words," Locke distinguishes between two uses of language: in recording our own thoughts, and in communicating them to others. The first he regards as relatively straightforward: when "as it were, we talk to ourselves, any Words will serve our turn."7 But the communicative use of words is more uncertain because of the lack of agreed reference. In civil communication ("such... as may serve for the upholding common Conversation and Commerce, about the ordinary Affairs and Conveniencies of civil Life"), no great precision of language is needed; but in the philosophical use of words ("such an use of them, as may serve to convey the precise Notions of Things"), the limits of language are troublesome.8 Particularly troublesome are words that name "mixed Modes," or complex ideas that assemble together more primitive ideas in a way that has no basis or standard in "Nature." "Murther" and "Sacriledge" are examples: "There be many of the parts of those Complex Ideas, which are not visible in the Action it self, the intention of the Mind, or the relation 6. Ibid., 128. 7. Locke, Essay Concerning Human Understanding, Bk. 3, chap. 9, 476. 8. Ibid., 476.

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of holy Things, which make a part of Murther, or Sacriledge, have no necessary connexion with the outward and visible Action of him that commits either."9 Locke continues: "They have their union and combination only from the Understanding which unites them under one name: but uniting them without any Rule, or Pattern, it cannot be, but that the signification of the Name, that stands for such voluntary Collections, should be often various in the Minds of different Men, who have scarce any standing Rule to regulate themselves, and their Notions by, in such arbitrary Ideas."* ° There is no authority, then, whose rulings would enable us to settle upon an agreed understanding of what mixed modes entail. We have already seen the analogy with the account of the state of nature in the second treatise. Locke reinforces this analogy by writing of our "liberty" to use the names of mixed modes as "we think fit," and of the "inconvenience" that thus arises—again echoing his account of the pre-civil state, also one of "liberty" and "inconvenience." But the linguistic state of nature is permanent: no standing rule will ever curb our liberty or remedy the inconvenience. The political state of nature is terminated by agreement; but in the linguistic state of nature dispute extends even to what it is that is agreed: 'Tis true, common Use, that is the Rule of Propriety, may be supposed here to afford some aid, to settle the signification of Language; and it cannot be denied, but that in some measure it does. Common use regulates the meaning of Words pretty well for common Conversation; but no body having an Authority to establish the precise signification of Words, nor determine to what Ideas any one shall annex them, common Use is not sufficient to adjust them to philosophical Discourses; there being scarce any Name, of any very complex Idea, (to say nothing of others,) which in common Use, has not a great latitude, and which keeping within the bounds of Propriety, may not be made the sign of far different Ideas. Besides, the rule and measure of Propriety it self being no where established, it is often a matter of dispute, whether this or that way of using a Word, be propriety of Speech, or no.J J

So we can suppose that there is a background agreement about the use of words, but it is not determinate enough to resolve differences (it 9. Ibid., 478-79.

10. Ibid., 479.

11. Ibid., 479, emphasis in original.

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is open-textured), and it is differently understood (it is essentially contestable). It is useless, then, to appeal to it for a resolution. Locke, unlike Hobbes, does not entertain the possibility of an authoritarian resolution—that is, of accepting an authority whose rulings would be accepted just because they were its rulings. Possible though this may be, it would clearly be disanalogous to Locke's political solution, which is legitimate not just because it imposes unity but because it reflects a (conceptually) prior agreed unity, arising from shared interests, against which political authorities are measured. Locke is evidently more optimistic about finding convergences of interest than he is about finding convergences in the use of words and agreement about the ideas they name. This may be contrasted with the considerable optimism of the proposed "Lockean" or democratic position. Gutmann and Thompson take the hard case of dispute over abortion and attempt to show that a sincere effort to find publicly assemble principles should create some common ground between the two sides, rather than leave them in blank enmity. They make use of the ingenious and much-cited example (contrived by Judith Jarvis Thomson) of the person who wakes up in a hospital bed to find that, without her consent, another person, suffering from kidney failure, has been plugged in to her circulatory system, a situation that is to continue for nine months. If we think that she would be justified in unplugging the kidney patient, it would follow that we ought to permit abortions in the case of forcible pregnancy. "This example should convince even people who perceive the fetus to be a full-fledged person that it is not obviously unjust for women who become pregnant through no fault of their own... to be legally free to obtain abortions."12 This claims too much for public philosophy. The idea of a public standpoint is essential as a regulative idea, so to speak, in public discourse; it is essential that people should assert only what, in their best judgment, can be defended publicly without recourse to any special privileged claim or intuition or revelation. But that does not mean that everyone must reach the same conclusions. The public standpoint is, by its very nature, a horizon that we cannot occupy, and while everyone can argue with reference to it, no one can move into it and give us itsjudgment. One can find the kidney-patient example overwhelmingly convincing and back one's viewpoint with publicly assertible reasons, but 12. Gutmann and Thompson, "Moral Conflict and Political Consensus," 140, emphasis added.

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other people's ideas about the mixed mode "abortion" may be differently framed and combined. Suppose some people hold reasons that make them distinguish between killing and letting die? Suppose some people hold beliefs that would require them not to unplug the kidney patient? And what about different understandings of "life"? Because of this, only in a limited sense can it be claimed that "citizens put their moral beliefs to the test of public deliberation."13 Their moral beliefs are "tested" in that stress is placed upon them, but nothing moral follows from their success or failure at the bar of public opinion. For we have to distinguish between two outcomes: the outcome for each participant, measuring his or her beliefs against the best reasons that deliberation makes available; and the outcome produced by whatever decision-making procedure the society has adopted, such as a majority vote, for resolving contested issues. For those on the losing end of the second outcome, it cannot be described as a "test" of the beliefs entering into debate. It is something external and authoritative. Only by falsely aggregating all the participants' experience into one experience can we see in this process a "secular analogue" of the requirement that each must be internally moved, or see in democratic choice an analogue of individual commitment. This thought may lead us to a more sympathetic reading of Locke's perfunctory remark about majority rule: it is, ultimately, just (untheorizable) "force," it cannot be transformed into reason, and all we can do is palliate its mode and its scope so that the affront to the outvoted is minimized. In the movie The Caine Mutiny, Captain Queeg tells a junior officer, "I never lose an argument on board my own ship." This is funny, and importantly so, because it plays upon two senses of what it might mean to lose an argument. There is losing it from the objective point of view that we assume in the very practice of talking about good and bad arguments, a practice that implies that, even though we should be open to the criticism that we have not applied the standard correctly, there is a standard. There is also losing it in what might be called the social or institutional sense—being declared the loser in terms of whatever formal or informal method of scoring or evaluation is accepted in a given community. In the officers' mess on a warship Captain Queeg never loses in this second sense, but his remark gains effect because it is the first sense that initially comes to mind. Exactly the same consideration applies to democratic authority: it can only claim the authority of the institutional 13. Ibid., 143.

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winner. Substantially the same point is made by W. B. Gallic in the course of his argument for "Essentially Contested Concepts": we can imagine a game in which "championship" is determined by shifting majority responses to the ebb and flow of the teams' skills, but nothing will prevent the currently outnumbered or (one might say) outenthused minority from declaring its own team to be "the true champions."14 A process of public (i.e., open) deliberation is one that carries with it no locus of decision. Since the object is to find "Truths, which the Mind may rest upon, and be satisfied with,"15 there obviously cannot be an authoritative determination of the result, for if there were, its findings might conflict with what satisfies the mind. A process of public (i.e., political) deliberation, on the other hand, necessarily does carry with it a locus of decision, for in its absence the process would be futile. We need to keep these two senses of "public" determination distinct. The distinction between Kantian and Lockean views of "public reason," discussed earlier, may be relevant here; likewise Locke's distinction between civil and philosophical language, which denies to the former claims that may be made on behalf of the latter. It would be easier to distinguish between the two senses of public determination if two quite separate processes were involved. Suppose that we had a system in which there had to be a public debate; that in this debate moral reasons were asserted and compared; that everyone had an obligation to identify the best reasons as sincerely as they could; and that the issue was then resolved by flipping a coin. The distinction would be only a little less clear in the case of a system that required that the public debate should take place as before, and that a king should then decide the issue, taking account of the public debate in doing so; it would be important to distinguish between the constitutional limit on sovereignty (the requirement that the king should listen to the debate) and the actual location of sovereignty, in the king's decision. And there are still two distinguishable processes when, as in the deliberative ideal, the same people engage in the debate and take part in making the decision, by voting. The second and third of these hypothetical regimes are certainly more rational than the first, in which no one has the incentive to engage seriously in debate because the debate has no intelligible relation 14. Gallic, "Essentially Contested Concepts," 171. 15. Locke, Essay Concerning Human Understanding, Bk. 3, chap. 9, 476.

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to the outcome. The third may be more rational than the second if we assume the greater reliability of larger numbers of people. But the third, like the second, depends for its appeal only on contingencies. Just as in the regime of consultative kingship, public debate is best envisaged as a kind of constitutional safeguard that renders less probable the mistaken use of sovereign power. But if that is so, then we are on moral terrain that is familiar to the liberal. All kinds of devices, including those classically favoured by liberals, belong on our list of things that are useful in restraining sovereign power; and if political deliberation, too, is to be on that list, then it is open to assessments of comparative importance and to trade-offs, in the light of empirical judgments. It may be more or less important to open issues to deliberation rather than protect differences by means of rights, depending on how effective we think our deliberative processes are. The only way to escape this conclusion would be to make the majority's view definitive, rather than declaratory, of the best moral reasons. We would have to claim that it is not because it is probable that majorities will find the best reasons but because it is an analytic truth that deliberation produces the best, i.e., the deliberatively sanctioned, result. It is the best result because it is the deliberated result, not because we think deliberation will disclose something identifiable as the best result independently of the deliberative process itself. This move is unattractive, however, for unless people agree to replace their own deliberative processes with collective deliberation, they will not agree to equate "the best" with "the deliberated." So there is something of a dilemma here, one horn reducing deliberation to the same level as traditional liberal safeguards, the other elevating it quite implausibly. Perhaps it is no surprise, therefore, to find equivocation. Bernard Manin offers the following: Some values are more likely than others to win the approval of an audience of reasonable people. It is impossible to demonstrate their soundness; they can only be justified. A decision or norm is not either true or false. But we are nevertheless not reduced to pure arbitrariness, because a norm can be more or less justified. The relative force of its justification can only be measured by the amplitude and the intensity of the approval it arouses in an audience of reasonable people.16 Now, even if norms were demonstrably true it would not follow that the right conclusion would win, because it might not occur to any participant 16. Manin, "On Legitimacy and Political Deliberation," 353-54, emphasis in original.

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to put forward the right argument for it, and even if someone did it still might not win. The same is neither more nor less true of a deliberative situation in which only (relative) "justifiability" is possible. Politically speaking, the issue of truth is a red herring here in that large questions about whether or not it exists tell us nothing about what to ascribe to the outcome of a political procedure. Likewise, even if demonstration were possible, and even if it were carried out in the course of deliberation, the right conclusion might not be adopted, because the demonstration might not be understood. Is this equally true of justification? That is hard to say. Let us suppose that from an Olympian point of view there are relatively better justifications, falling short of decisive demonstration but plainly better than other justificatory attempts. Would these arguments, if made, win out? When Manin says that the force of a justification is "measured" by the approval of others, it looks as though its force is its objective force, for only things that are independent of each other can serve as measures. But in the previous paragraph he says, "One tries only to persuade," so it may be that the force of an argument is its intended force, or is the same as its persuasiveness, in which case the more forceful aguments win but not necessarily the better ones. However, all this may or may not be overturned by the stipulation about "reasonable people." If that is meant only to exclude wholly irrational people who can't even engage in a reasoning process, then it makes no difference. But if it is meant to include only people who can tell good or better reasons from bad or worse ones, then it restores the stronger sense of claiming that the "more convincing" arguments win. So there are really two possibilities. One is that the most persuasive arguments will win, not the objectively better ones, but that there is some independent reason for adopting as public policy what more people find persuasive. The other is that a majority of reasonable people are quite likely to find the better arguments persuasive. The first alternative seems quite unattractive. What is the point of all this deliberation if in the end it is the glib who win? Perhaps deliberation will make it less likely that the glib will win, but that claim edges us towards the second alternative—the system is justified to the extent that it makes the better arguments win. But that means that we cannot identify the majority's decision as the best decision, or tell those who are outvoted that it is deliberation that has led to the outcome. It has merely preceded it.

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If a certain kind of collective life is valued by analogy with a certain kind of individual life, then obviously it must not be allowed to make impossible the kind of individual life from which it derives its reflected value— Locke's life of "reasoned freedom," or the self-chosen life admired by Mill. So we would want collective decisions, however they are made, not to obstruct individuals in examining their own lives by depriving them of information, for example, or of knowledge of alternatives that potentially have meaning for them. We would need to protect "reusability."17 If the public philosophy were to speak, for example, in favour of a subdued sexual lifestyle, it could not in addition try to deprive people of the awareness that there are other conceptions of sexual life, of the knowledge and means of contraception, or of privacy, even though doing so would make the publicly preferred lifestyle much easier to pursue. Moreover, if individuals need the resources to be able to revise their lifestyles, the analogy further dictates that public decisions need to be revisable. We would require the public philosophy not only to leave individuals with the means to assess their own lives but also to enable the polity to reassess its own decision; it would have to permit, perhaps even provide resources for, an opposition, it would have to provide an education encouraging the powers of criticism, it would have to ensure that there was a free press if the market did not provide one. So much initially follows from the fact that the case for the collectively examined collective life is parasitic on the case for the individually examined individual life in that, if there were nothing to be said for the latter, it is hard to see what could be said for the former. What makes a deliberated outcome legitimate is not the bare fact that a majority voted for it but the deliberative nature of the process that preceded the result. But the analogy between the individual and collective cases can, it appears, be used for the opposite purpose. All our beliefs are potentially revisable, but that does not normally impede commitment: if it did, all commitment would become impossible.18 People get married knowing full well that their feelings about their partners may change and that they may come to regret the paths they did not take: they have to act on their best judgment then, not on judgments they fear they might make later. "It is not unreasonable for a person to accept that marriage is a 17. See Kymlicka, Liberalism, Community and Culture, chapter 2. 18. See Moore, "Liberalism and the Ideal of the Good Life," for a strong statement of this view.

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risky proposition and still believe in marriage"; surely it follows that "it is not unreasonable for a person to base her political decision on her considered moral beliefs even though she is aware that her present moral views might change in the future."19 By analogy with the individual case, what follows is not liberalism, or the preclusion of things from the agenda, but "democracy," or the requirement that there should be opportunities for a public to collectively revise its considered beliefs. So liberals are guilty of applying an "unexplained differential treatment" to private and public decisions, requiring us to see our judgments about the latter as "mere beliefs" with only provisional validity.20 The parallel with Stephen's critique of Mill is clear: "Governments ought to take the responsibility of acting upon such principles, religious, political, and moral, as they may from time to time regard as most likely to be true, and this they cannot do without exercising a very considerable degree of coercion."21 This line of criticism is a powerful one, for as Locke and Mill and others have insisted, we can hardly take away from people their right to think that what they think is right. But it is a criticism that seems to press hard upon argument by analogy, at the cost of ignoring some important differences between the individual and collective levels. First, if I immerse myself in Zen Buddhism for a couple of years, decide it's not for me, and then rid my house of Zen books and artefacts, nothing irrevocable has been done. In society at large, bookstores, libraries, clubs, etc. still keep the option open for me, and if I change my mind again I can replace what I discarded. But if a political society collectively turns its back on religion, or Marxism, or capitalism, the case is different, since it is within its power to make the change, if not entirely irrevocable, enormously hard to revoke. Books can be pulped, history rewritten, technologies eliminated, streets renamed. Second, if the analogy is holding good, the collective decision, to have moral weight, must have been made in an informed and deliberate way. It only counts as a good one if individuals, in their role as citizens, have relevant choices open to them. It counts for nothing if citizens are duped or sheltered or brainwashed—-just as a person's private decisions would have no moral weight if they were the result of such things. So a polity's capacity to impose any degree of closure on itself is limited by the need to preserve openness to 19. Ibid., 679. 20. Ibid., 680. 21. Stephen, Liberty, Equality, Fraternity, 87.

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its members. And this, as noted above, requires something resembling liberal restraints, for democratic reasons. Note that this argument is not rights-based, in the sense of taking individual needs as prior to any public decisions, but process-based, in the sense of grounding (some) rights in what a genuinely democratic polity requires. Does this mean that in a "public" context beliefs are not taken quite seriously, or are treated as "mere beliefs" with only provisional validity, whereas in the "private" context people's beliefs are taken seriously as their best approach yet to truth? This does not seem to follow. As the argument was set out above, "private" and "public" beliefs held exactly the same status, and the disanalogy arose from a simple structural fact: persons are contained within polities, polities are not contained within persons. Even accepting an analogy between personal and political decisions, that consideration imposes different standards upon what counts as a legitimate decision in the two cases, for the latter cannot undermine the conditions for the legitimacy of the former, without undermining the conditions for its own. This discussion may seem to have taken us rather far from the LockeProast controversy. If the ideal of a deliberative polity is thought by some to issue from Locke's political theory, it is not, of course, advanced by Locke, and it certainly has nothing to do with the political theory of Proast's critique. But curiously, what Locke's political theory says to deliberative democracy is identical in two important ways to what Locke has to say to Proast. First, there is the issue of communicability. If a society is to be self-governing, its members must appeal to standards that others can understand and interpret in convergent ways. An individual writing a work of political thought cannot impose on the world his own understanding of its practical meaning: that is Locke's critique of Proast. Nor, however, can theorists of deliberation identify the deliberated result with the rational result: like Proast, they confuse a regulative idea with one that is politically available. Second, there is the even more basic issue of plurality/A polity does not have the same features as a single mind, and its decisions cannot be treated as analogous to those of a mind. Notions like "judgment" apply only by extension to its acts, which are like an individual's acts in limited ways but are not the same, simply because the relation of individuals to aspects or components of themselves cannot be a model for relations among distinct persons. There is an interesting sense in which a person,

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like a polity, is multiple; but the analogy quickly runs out, if only because there has to be a distinction between what I can do to other persons and what I can do to my own thoughts—both factually and morally speaking. Even if the mind is plural, its parts have access to each other in ways that are not available to distinct people, whose access to one another is inhibited by limited communication, strategic positioning, the requirements of self-respect, and deception (one-way or reciprocal). Such things apply to the internal relations of the self only by ingenious extension.22 In the first section of this chapter the unusual strength of the deliberative ideal was noted. It finds its starting point in the activity of political theory itself, and while it can say little to people who see no point in theorizing politics, it seems reasonable to excuse it from having to do so. It is enough that it grounds itself in the value of what we are already doing, that is, publicly offering and exchanging views about the politically legitimate and illegitimate; no critical theory can be called on to do more than that. But I think Locke can make the same claim, and that it is supported by the whole character of his exchange with Proast. He calls upon Proast to provide "proofs and arguments," which, we may assume, must be thought good even by those who do not support Proast's policies. As Peter Nicholson points out in his essay on the later letters, Locke goes to extraordinary and occasionally tedious lengths to bring his differences with Proast fully to light, letting no point pass unanswered and even printing passages from his own and Proast's work in parallel columns.23 Moreover, the publicity condition enters the argument on Locke's side in yet another way. In his final and rather unenlightening critique, Proast takes refuge in the claim that "Full Assurance" in the truth of one's religion is evidence of its truth.24 He calls this full assurance a "third sort" of belief, intermediate between knowledge and opinion, but this hopeless claim cannot disguise the fact that he is resting his case on what amounts to supreme self-confidence. It is not difficult for Locke, in his unfinished fourth letter, to brush this supposed "third sort" of belief aside: "If the degrees of firmness in persuasion make different sorts of 22. See Elster, The Multiple Self, 30-31: "We ought not to take the notion of 'several selves' very literally. In general, we are dealing with exactly one person—neither more nor less. That person may have some cognitive coordination problems, and some motivational conflicts, but it is tejob to sort them out. They do not sort themselves out in an inner arena where several homunculi struggle to get the upper hand." 23. Nicholson, "Locke's Later Letters on Toleration," 182-83. 24. Proast, Letters Concerning Toleration (3), 6.

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persuasion, there are not only three, but three hundred sorts of persuasion."25 In other words, rather than a category of cognition, we have a subjective experience with myriad gradations. This, again and finally, reveals that what Proast is offering is not a public argument at all but an appeal to inner conviction. It also demonstrates the extent to which Locke can appeal to the commitments implicit in deliberation itself. In both form and content his case against Proast is modelled on an underlying idea of a self-governing society whose members owe it to one another to deal on the basis of reasons that can be revealed. But of course, Locke's polity is not a "deliberative democracy" even if ultimately it rests on the status of humans as self-governing creatures. Belief in self-government does not have to issue in classical republicanism. As John Dunn writes: "Political virtue does not necessarily require an activist disposition. But it does require, in the last instance, a genuine commitment to the public good and a preparedness to make sacrifices on its behalf."26 Locke's belief in self-government may rule out an "activist" disposition. As the argument for toleration shows, what polities can do is restricted by a prior list of entitlements and exclusions, not "democratically" constructed but drawn from a hypothetical situation that imposes unanimity as the decision-rule: "no man" can be supposed to authorize a state to persecute him. However, returning to an argument briefly introduced above, one wonders how different a "deliberative" polity can be, if it is to retain its appeal or even its coherence. The deliberated outcome carries weight if it is the rationally deliberated outcome, and certain conditions have to obtain for it to be rational. Joshua Cohen confronts this issue head on.27 More than a populist ideal, or the idea that people should get what (most of them) want, the deliberative ideal is one that relates to collective choice, requiring that the "preferences and convictions" that go into public decisions pass tests of justifiability, to which freedom of expression is a prerequisite. So it presupposes some political rights. But even more than that is argued. It is not just political expression that has to be protected: the whole realm of belief formation is important to the deliberative ideal, and so freedom of expression in general is an implied value. "Forms of expression that do not address isues of policy may well

25. Locke, Works, 6:559. 26. Dunn, " 'Trust' in the Politics of John Locke," 52. 27. Cohen, "Deliberation and Democratic Legitimacy.'

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bear on the formation of the interests, aims, and ideals that citizens bring to public deliberation."28 Here one may wonder about the difference between prior and presupposed conditions. For Locke, there is a set of prior conditions, termed the law of nature, that forms the moral background to political society, though it requires political interpretation itself. For Cohen, there is a set of presupposed conditions that we discover as implications of the deliberative idea. The difference requires exploration by those who find it important. Moreover, one may well become uncertain about which is the liberal position here, and which the democratic. Starting from "an independent and expressly political ideal"29 of democracy, Cohen arrives at a defence of political rights that expands into a defence of a much broader set of rights protecting personal freedom. Starting from a set of natural rights, on the other hand, Locke arrives at a majoritarian polity empowered to interpret the law of nature, a theory of toleration that excludes Catholics and atheists because the public's interest supervenes over theirs, and a position that one interpreter calls "moral intolerance"—Locke calls for the magistrate to "restrain and suppress" both "corrupt manners" and "the debaucheries of life."30 But we need to focus on the underlying issue, not on textual difference. The underlying issue is whether or not some things should be taken off the agenda that democratic majorities are to rule upon, and if so, what the general reasons for removing them are. What was stressed above was Locke's belief in (to parody Habermas) an imperfect speech situation. Politics has to be communicative because it has to be grounded in shared conventions, there being no natural coordination. But conventions must take account of the limits of civil communication, which cannot reliably achieve the sort of transparency that we can achieve when we "talk to ourselves." The authoritarian goes wrong, Locke judges, in thinking that what states require of us can be received as we receive our own thoughts, not as bare external demands emanating from the will, partiality, and interpretation of others. Curiously, theorists of democratic deliberation tend towards the same mistake; perhaps not so curiously in that if there are general reasons for reserving some things from authority, then these apply in the case of democratic authority too.

28. Ibid., 30. 29. Ibid., 20. 30. Goldie, "John Locke, Jonas Proast," 167.

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There are grounds, then, for resisting the idea that Locke's reasons for tolerant preclusion transform themselves into reasons for deliberative democracy, or else for supposing that deliberative democracy will have to contain sufficient principles of preclusion of its own. But whatever general case one can see for closing the political agenda, it is impossible to feel entirely comfortable with it. Stephen Holmes's paper on "gag rules" is by and large a sympathetic account of various reasons for precluding issues from politics, but one can hardly finish it without sharing the unease that Holmes himself admits to. It was a good thing to preclude denominational religion and impose a tolerance of difference. But was the preclusion of slavery a good thing? Can we, Holmes asks, satisfactorily explain the moral difference between issues that we want on the agenda and those that we want off it? "We can neither dispense with gag rules nor allay the guilty consciences they inevitably produce."31 Moreover, we must take account of the fact that to preclude an issue is very often to settle it, in effect, one way or the other—a point that may bear especially upon liberals, for the preclusion of issues resolves them in the libertarian direction that they are thought to favour. As Nagel puts it: "Those who argue against the restriction of pornography or homosexuality or contraception on the ground that the state should not attempt to enforce contested personal standards of morality often don't think there is anything wrong" with those practices, leading their critics to complain that all the appeal to impartial standards of state neutrality is just a sham.32 This complaint can be contested in a number of ways. First of all, it seems to imply, quite wrongly, that people who hold the political beliefs of liberal toleration cannot also have personal commitments that would be furthered by restrictive legislation. It implies, for example, that there are no liberal Catholics, or liberal vegetarians who, if they were not liberals, would impose compulsory abstention from eating meat, if they could. Second, the complaint seems to assume that liberty is the liberal's primary value; that, from a liberal point of view, the more liberty one has the better; and that restricting the state's agenda produces more liberty. This series of claims invites a major and complex discussion that I shall cut off at this point by noting that the first premise is dubious.33 Ultimately, though, it would be better to admit that there are cases in 31. Holmes, "Gag Rules," 58. 32. Nagel, "Moral Conflict and Political Legitimacy," 216-17. 33. See Dworkin, "Liberalism," for the view that equality, not liberty, is the basic value.

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which the critics are right and the liberals' appeal to principles of tolerance produces the outcome that they happen to prefer. What can they say to this? All they can do, I think, is try to make a persuasive case for the special character of state coercion. When a society is deeply divided about the Tightness of a practice, whether it is tolerated or prohibited a wrong will have been done in someone's eyes: the two policies are symmetrical in their offensiveness. But in another respect they are not symmetrical, for a state can tolerate a practice without endorsing its Tightness, while it cannot prohibit it without endorsing its wrongness. The public endorsement of the wrongness of something is an additional harm suffered by those who do not think it wrong. It is an authoritative condemnation of someone's life or belief, made on behalf of political society as a whole and ultimately sanctioned by coercion. As Locke complains to Proast, it puts an end to the discursive relationship—a relationship that anyone who believes in human equality must favour. So if our ideal is to model political relations upon human discourse, it may require us, by its own logic, to value toleration rather than to declare it superseded; for the limits of discourse set limits to what politics can do.

Conclusion: What Is Living and What Is Dead in the Exchange between Locke and Proast ? The title of this chapter is adapted (immediately, at any rate) from a paper by John Dunn that provides a compact and moving assessment of the interest—at once powerful and limited—that Locke's political writings still carry. The paper consists of an extended apology for an "illconsidered" sentence in Dunn's earlier book, The Political Thought of John Locke. It reads: "I simply cannot conceive of constructing an analysis of any issue in contemporary political theory around the affirmation or negation of anything which Locke says about political matters."1 The sentence emerged, Dunn writes, from an effort to persuade the reader that Locke's writings belonged to a context that was "in some respects culturally exceedingly alien,"2 and to make the point that fragments of his thinking could not be thoughtlessly stripped away from the whole and put to use for purposes of our own, in contexts of our own. This, however, led to a needless denial that various Lockean themes still have powerful interest. In particular, Locke brings a certain bleak but compelling realism to political thought, a realism about the limits to what political association can do and the dangers it faces. (Bleak realism would seem to be an important feature of the Lockean case for toleration; you cannot expect to see a polity as expressive of who you are, and so you will want to put constraints on what is claimed for politics.) There must be many infinitely more ill-considered sentences in political theory that have yet to be so scrupulously qualified. Ill-considered or not, moreover, the sentence speaks to a question of general importance: do any of our concerns hinge on whether the assertions made in historical 1. Dunn, "What is Living and What is Dead in the Political Theory of John Locke," 9. 2. Ibid.

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texts, which necessarily reflect the concerns of others, were right or wrong? Obviously, I have presupposed one answer to that question in treating what is at issue between Locke and Proast as important for, sometimes the same as, the issues of later discussions of toleration. For the most part, what has been said must stand or fall on the basis of its own inherent interest: either light has been shed, or it has not. But the question of method demands some explicit attention. Dunn points out that the claim presented in his earlier book may take relatively strong or weak versions. The stronger version would deny all possibility of communication between contexts, treating each context as a wholly self-enclosed world with its own unique criteria of meaning. The weaker version would merely (but still significantly) remind us that we cannot assume that any particular statement or piece of argumentation can be treated as independent of context, or that its relation to its own context will not turn out to foreclose upon its use in others.3 For reasons that will emerge later, I reject the strong version. I entirely accept the weak version; hence I accept that any claims made about Locke's or Proast's meaning are subject to contextualization and thus, perhaps, to invalidation by that means. This, of course, places the onus of contextualizing proof upon critics, and the case for doing so rests upon the (to me) intrinsic desirability of assuming that some acquaintance with other minds is possible, even if we have to give up our claims in the face of counterevidence. Dunn's principal concern is to convey to readers "that Locke was a Christian thinker," that "his thinking in its entirety was shaped and dominated by a picture of the earthly setting of human life as a created order, an order designed by an omnipotent, omniscient and also, mercifully, benevolent deity."4 Although this clearly is the most basic fact about Locke, it is not, as far as his theory of toleration is concerned, ultimately essential to understanding what the theory entails. For one thing, as argued above, Locke's theory for the most part tries to settle itself upon intermediate grounds other than those of ultimate and personal commitment. When he claims, for example, that legal compulsion cannot govern belief, or that constitutional principles must be ones that can be understood in non-perverse ways, or that "civil communication" falls short of the standards of ideal discourse, he is appealing to features of the political condition that must be taken account of by practical reasoning, 3. Ibid., 10. 4. Ibid., 10-11.

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regardless of the starting point from which one enters that realm of discourse. If such considerations turn out to determine what is politically "right," then Locke is in (or at least close to) the camp of those who separate the right from the "good," and his own (indisputably Christian) notion of the good is effectively distanced from his politics. This, of course, invites the objection that what he takes to be right is basically governed by what he takes to be good (and indeed that the whole distinction between the right and the good is really just a way of expressing a particular view of the good, i.e., a Protestant, individualist, and liberal one). But here the second consideration comes into play. We might perhaps accept that in Locke's case the view of life and of ultimate ends that underpins his notion of political right has a particular theological cast. But we can still ask whether the theology is a necessary condition of the politics, or only a sufficient one. Elsewhere in this book it has sometimes been argued, and sometimes assumed, that what Locke needs is a basic case for human equality. Locke himself derives such a case theologically, from the notion of divine workmanship: "Men being all the workmanship of one omnipotent and infinitely wise Maker... that are his property whose workmanship they are, made to last during his, not another's, pleasure; and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us that may authorize us to destroy another, as if we were made for one another's uses as the inferior ranks of creatures are for ours."5 From this idea of equality, as we have seen, Locke derives a theory of toleration that depends upon giving other people's views a weight equal to one's own and not making demands that others, who might make contrary demands based upon their beliefs, cannot possibly understand. I do not see, however, why the chain of argumentation that Locke constructs is valid only if his particular starting point is valid. In part, no doubt, as a consequence of views such as Locke's, the idea of equality has entered modern political thought as a basic moral conception. There are other, non-theological, ways of defending it; and arguments requiring equality as their starting point may share a family resemblance even if there are different ways of getting them going.6 Throughout this book I have focused on ways of arguing rather than on the foundations of argument, and this is bound to seem odd to those who think that foundations are somehow more important. But it is not 5. Locke, Two Treatises (2), sec. 6, 271. 6. See Simmons, The Lockean Theory of Rights, 36-46.

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only at their foundations that ideas can meet. The entire political tradition known as "liberalism" is itself a good example. Locke is a Christian, Mill an agnostic; Locke is a contractualist, Mill a utilitarian who rejects the idea of a social contract; Rawls rejects utilitarianism as inherently illiberal and returns to a kind of contract that is different from Locke's; and there are critics of Rawls who reject his approach vigorously while reaching very similar political conclusions that also share something with Mill's and Locke's. Overlapping arguments, actual borrowings or influences, and parallel concerns—these all establish common ground, though their origins might be found in different historical, conceptual, and personal situations. It is the conceptual situation that Dunn appeals to in claiming that some important features of Locke's thinking are "dead," or not available for use in their original sense or form. Two elements in this obituary are relevant here: one is the claim that Locke's theory of toleration becomes untenable when separated from the framework of assumptions that sustained it, and the other is the claim that Locke's contractualism—which, it was claimed above, is woven into the theory of toleration—rests on supports that have become obsolete. Let us examine these views in turn. Although many people still believe that human beings are bearers of rights, the prevalence of rights discourse does not of itself uphold what Locke believed. He did not believe that humans had rights because they were human; he believed that they had rights because they were the creatures of God, and that the duties entailed in respecting those rights were owed to God rather than to the creature. So he gives "short and brutal shrift" to atheists who reject and desecrate his whole framework of religious assumptions, thus demonstrating, according to Dunn, that he has not "the least regard for the rights of human beings as such."7 But this statement involves a certain telescoping of issues; several levels of Locke's thinking are being run together when perhaps they do not reinforce one another at all. There is the issue of who is the "owner" of rights and who the beneficiary. It is beyond dispute that God is the owner of Lockean rights, but it is less clear what the issue of ownership entails from the beneficiaries' point of view. J. S. Mill thought that the duty entailed in rights observance was owed to humanity: the ultimate ground of rights is their value in securing human progress, and the benefit that individuals derive from that ground is incidental. But although 7. Dunn, "What is Living," 15.

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it is incidental, it is hardly dispensable, for human progress could not be furthered unless individuals received the benefit protected by that end, even though their enjoyment of the benefit is not the grounding reason. Why would a similar logic not apply in Locke's case? While the ultimate point about rights might be a matter of duty to God, it does not follow that obligations to other human beings are dispensable, any more than the parallel point would follow in the context of a secular political theory such as Mill's. Something can be non-ultimate but still essential. Locke's treatment of atheists is among the most problematic parts of his case. Why are atheists, unlike others, not protected by the consideration that people cannot help holding the beliefs that they do hold? Why, despite the powerful motivating force that Locke ascribes to public opinion,8 can he not take it as sufficient guarantee of the atheists' good behaviour? If, as Locke predicts, the practical and political effects of intolerance towards dissenting Christians would be to drive them underground and into hypocrisy, thus, in effect, worsening the risks of insecurity, why would the effect of intolerance towards atheists be any different? The whole issue is deeply unsatisfactory in Locke's hands and I make no attempt to defend it. Nonetheless, it is not clear that Locke deprives atheists of rights altogether. What rights they have depends upon what duties other people think they have towards atheists, not upon the duties atheists think they have. Nothing in Locke suggests that atheists could be slaughtered at will, or used for medical experiments. They too are of God's making, though they refuse to acknowledge it, and something surely flows from that even if they are unfit to be members of civil society. We just don't know what Locke thought about this—or what he thought "not tolerating" atheists entailed, exactly—and conclusions based upon inference are contestable. Nor is it at all clear that Locke argues only for "tolerating varieties of Christian belief and practice" and thus distances his case completely from the needs of a religiously plural culture.9 The 1689 letter is quite explicit: "If we may openly speak the truth, and as becomes one man to another, neither pagan, nor Mahometan, nor Jew, ought to be excluded 8. See especially Locke, Essay Concerning Human Understanding, Bk. 2, chap. 28, sec. 10, 353-54. for "The Law of Opinion or Reputation." For the view that atheists can be good citizens because they will be restrained by public opinion, see Bayle's Philosophical Commentary. 9. Dunn, "What is Living," 19. That restriction is indicated in the letter's first sentence, but it refers to the question that Locke says he has been asked, not to the answer that he gives.

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from the civil rights of the commonwealth, because of his religion."10 Elsewhere, of course, serving as proxies for Catholics, the "Mahometans" are excluded but not "because of [their] religion," i.e., their beliefs and practices: it is because they owe obedience to an authority other than the state and are thus, according to Locke, a political liability. In his first critique of Locke, Proast expresses astonishment at the "largeness" of his toleration, and in the second letter Locke defends his original claim without concession. This is not to say that Locke is an early theorist of the multifaith or multicultural society. The toleration he extends is set against the background of the assumed superiority of Christianity: while we tolerate pagans, Mahometans, and Jews, "we pray every day for their conversion."11 Such solicitude could be oppressive but Locke could hardly have thought otherwise, and it is unclear what role he thought the state could or should take in promoting Christian belief in general, as opposed to the denominational commitments that he thinks it should avoid. So while he is no pluralist, the basic components of his theory are not tied to the toleration of one kind of Christian by another; there is nothing, that is, to show that the theory could not be adapted to accommodate religious pluralism. In other respects, the theory of toleration might exhaust its resources in a context of greater religious or cultural heterogeneity. In a more heterogeneous society, for example, competing claims to the use of public space lead groups to make demands upon one another, not through the mediation of the state. But once again, Locke's is very much a theory of the limits of state action in that it belongs within a larger political theory of the conditions for self-government and draws attention to the special character of public coercion. To the extent that groups still want to call upon the state to support their aspirations for the use of shared space, we are still within a Lockean frame of reference, though one may well feel that the argument is stretched to its limit. Then too, a seventeenthcentury theory cannot be expected to fit our own circumstances in all respects. I am claiming only that, despite all necessary allowances for changed political and social circumstances, nothing in Locke's basic position essentially excludes pluralism. Nor is it clear that the only right protected by Locke's theory of toleration is the right to worship. Admittedly, his theory is very far from protecting "freedom of expression," and a good many of his considerations 10. Locke, Works, 6:52. 11. Ibid., 62.

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involve the specific requirements of worship, especially the need for sincerity: one does not naturally think of a right to freedom of expression as covering only sincere expression, after all. Alongside Locke's (limited) religious tolerance is a fairly intrusive moral prudery, as evidenced, for example, by his support for Societies for the Reformation of Manners. But toleration is one thing, freedom of expression another. The former is limited in scope by the specific objectives of the theory, while the latter treats freedom itself as a good. What has just been said of Locke could also be said of Mill. Mill defended "liberty of thought and discussion," but he provides little (if any) protection to "expression" in general; pornography, for example, which is neither thought nor discussion, probably falls outside "the principle of liberty."12 Moreover, Mill envisages a category of "violation of good manners" which amounts to an offence against others and is apparently prohibited as a harm.13 So if Locke is irrelevant, Mill is too, and both for reasons that have nothing much to do with being a Christian. They have to do with the fact that the field of toleration has a structure and limits; it is not coextensive with "freedom." Further, while some of Locke's arguments relate specifically to the nature of worship, others do not; and while mixed cases are hard to classify, it appears that Locke did not wish to classify his own as a religious case. He repeatedly makes parallels between the case of religious belief and other, non-religious, cases. For example: "The care therefore of every man's soul belongs unto himself, and is to be left unto himself. But what if he neglect the care of his soul? I answer, what if he neglect the care of his health, or his estate; which things are nearlier related to the government of the magistrate than the other? Will the magistrate provide by an express law that such an one shall not become poor or sick?"14 If the case for toleration rested only upon the specific requirements of (effective) worship, why would Locke have introduced such parallels? They make sense only if we suppose that the reasons for limiting the state's role in the religious sphere have—to state the point modestly—at least something in common with general reasons for its limitation such as those referred to in his contractualist argument, with its theory about what states are and what they can do.

12. Vernon, "Beyond the Harm Principle.' 13. Mill, On Liberty, 153. 14. Locke, Works, 6:23.

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The Career of Toleration

But that theory is itself problematic, as we have seen. For one thing, it too rests ultimately upon a moral structure containing elements that are no longer (readily) available to public discourse: natural law, natural rights, and divine purpose. For another thing, belief in the contractual origins of civil society has lost whatever plausibility it had; but if we substitute an idea of hypothetical consent, we are really appealing to some other standard altogether, i.e., whatever standard we think hypothetically that people would adopt.15 Locke's theory of toleration does not solve these problems. It does not undertake the whole task of framing a theory of political obligation, though it is strongly connected with such a theory. It does, however, display a way of thinking and arguing that may put his contractualism in a different light. Suppose we take the idea of a contract as a basic model for conventional human relationships, as Locke takes political society to be. We can then ask whether the claims one person makes upon another, and the implied claims embedded in real or proposed institutions, are consistent with the model. Understood in this way, contractualism would refer neither to an event in the past nor to a once-and-for-all hypothetical test of legitimacy but would become a basic method of political argument that could be put to use in assessing laws or policies. That method is characteristic of Locke's approach to Proast: he asks whether the claims implied in his policy could be adopted by both parties as the basis of a contract that they could both make and keep. In other words, the method becomes a device for enforcing discursive equality. Proast is quite simply unable to grasp the point of Locke's demand that he should make a case for persecution "without supposing all along your church in the right, and your religion the true."16 Proast comments: "As to this... condition, I confess I do not see how you can oblige me to it. For if my Church be in the right; and my Religion be the true; why may I all along not suppose it to be so?" He adds that the only possible basis for Locke's demand is a secret belief that the truth of all religions is equally certain, or uncertain.17 Proast takes the "supposition" in question to be an internal one—one's own view of one's own belief,— and thus expresses surprise at Locke's demand: how can I not suppose that what I believe to be true is true? Locke, on the other hand, is obviously thinking of the "supposition" as a public premise, or as one capable 15. Dunn, "What is Living," 20-21. 16. Locke, Works, 6:111. 17. Proast, Letters Concerning Toleration (2), 46-47.

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of providing a basis for a discourse about claims. When he says that Proast cannot "suppose" his religion to be true, he does not mean he cannot think it is true, but that the supposition "can no more be allowed to you in this case... than it can be to a papist or a Lutheran, a presbyterian or an anabaptist; nay, no more to you, than it can be allowed to a Jew or a Mahometan."18 It is, in short, discursively useless in a context in which beliefs are disputed and the relations among those who hold them need to be settled. Proast consistently mistakes this for a claim about epistemology, because his model does not take seriously the conditions imposed by human plurality and thus makes no distinction between discourse and self-reflection. Locke's approach differs, it was earlier claimed, from the familiar test of moral "generalization" in that it tries to take account of the interpretative use of a principle by others. It also differs from what is generally called hypothetical consent and does not pose the problem that Dunn sees in that notion. It is quite true that when we ask what people would hypothetically consent to—as a way of testing the legitimacy of something—we have to have in mind the standards of (what we take to be) a reasonable person. So what exactly does the idea of consent add, since one might just as well appeal directly to those standards?19 But this is not a device that requires an interpersonal context at all. One might just as well ask what one person would hypothetically consent to, while Locke's question is about claims or principles capable of forming the basis of a publicly sustainable agreement—hence the suitability of "contract" as an underlying model. In this sense, then, Locke's contractualism, in the form it tends to take in the later letters on toleration, may still be living. If the ultimate theological and moral grounds on which it used to rest are no longer there, we can quite readily imagine alternative ways of launching the argument, using materials already provided by Locke in his account of the basic conditions of political reasoning. But what of Proast in all this? An exchange is dead if one party to it is definitively obsolete, even if the other is obsolete only in part. Certainly there are moments, reading Proast, when Dunn's remark about the "culturally alien" applies with full force. The approval of compulsory surgery for kidney stone patients comes to mind again. One may also be

18. Locke, Works 6:111. 19. See Hanna Pitkin, "Obligation and Consent.'

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struck by Proast's belief that it is illegal for French people to go to mass (since going to mass is a sin, and sin cannot be lawful). 20 On the other hand, passages that not so long ago might have seemed safely obsolete have recovered their relevance. When Proast says, for example, that the state must act to protect God's honour against people with false beliefs,21 and that we must not allow the practice of "indignities and abominations" among us,22 he is echoed by those who want to recriminalize blasphemy (or, in the British case, enforce and extend an existing law).23 When he defends the Church against the implications of a Lockean scheme of rights, his position has something in common with later attempts to defend shared institutions against the corrosion of individualism, and to set against the Lockean tenet that individuals cannot choose their thoughts the rival tenet that groups of people, affronted by others' exercise of rights, cannot choose their feelings.2^ Politically, of course, there is a great difference between a national church struggling to maintain its hegemony, and religious minorities struggling for security against a dominant culture. The boot is on the other foot: what was once claimed, in the teeth of liberal criticism, by a social and religious establishment is now claimed by groups who see themselves as victims of a hegemonic liberalism. What the two positions have in common, however, in opposition to a theory of rights drawn from an abstract conception of political association, is the claim to argue directly from the integrity of one's own experience, without passing through the filter of contractualism or some other proceduralist device. If God is hurt, and we are hurt for Him, then that is an experience deserving political and moral weight. It is that experience that others must respond to, not to some generalized attributes of its bearer considered in the light of a political theory that gives only marginal weight to shared, substantive identities. In this we have a possible basis for a notion of politics that is very different from that discussed in the previous chapter. The earlier notion, with its Enlightenment roots, proposed a deliberative process that would generate results with validity quite independent of the particular standpoints of participants. In contrast, we now have an idea of politics as the confrontation of differences, 20. Proast, Letters Concerning Toleration (2), 44. 21. Ibid, ( i ) , 16; ibid. (2), 2, 3, 55. 22. Ibid. (2), 4. 23. See Webster, Brief History of Blasphemy, especially 126-49. For a critical view, see Weidon, Sacred Cows, and for a full-length historical discussion of the topic, Levy, Blasphemy. 24. Dunn, "What is Living," 20.

Conclusion

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wherein each bearer of difference is to be taken integrally and as a selfdefining agent.25 So the appeals to procedural criteria on the one hand and to substantive identity on the other still stand in opposition to each other. Perhaps, as some believe, that is the end of the matter as far as theory goes; the only remaining question is which side will win? The story with which we began seems to make this point: Locke's friends win, blocking Proast's grievance against his college and making him wait another nine years for his derisory compensation. Then Queen Anne comes to the throne, the High Church cause revives, and Proast, sensing victory in the air, breaks a twelve-year silence to write yet another pamphlet. The LockeProast exchange itself could be said to lend force to the claim that the issue defies reasoned resolution, and that it will be given no more than political resolution by whoever has power. The aim of this discussion has been to display the relevance of the issue between Locke and Proast, not to resolve it. But it seems safe enough to say that a reasoned resolution depends upon a convergence from two directions. First, theories of rights may be exploited for whatever accommodation they can offer to the claims of shared identity. Clearly, not all group claims are essentially hostile to rights. Some may be seen as concretizations of shared individual rights arising from the fact that different circumstances may demand differential treatment if rights are to be evenly protected. While nothing in Locke touches it directly, this is not a project that demands the wholesale abandonment of basic Lockean premises. Second, in a non-segregated world in which space must be shared between groups whose ideals would shape it quite differently, "difference" claimants may find it advantageous to discover shared ground with other such claimants, and to recognize that integrity does not necessarily entail insularity. It is here that a methodological issue touched on above may also become a political issue. If we take the view that particular experiences of the world are wholly self-enclosed and unique, we make the problem of shared space insoluble. It becomes less insoluble to the extent that we recognize shared or generalizable or analogical features among experiences, so that one can at least conceive of some basis for coexistence. The claim to live in a wholly self-enclosed world is in any case barely plausible. Proast wants to make such a claim against Locke—if you claim to be of the Church then you must be of its doctrine—but actual historical 25. See for example Young, Justice and the Politics of Difference.

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The Career of Toleration

institutions are not as readily definable as ideologues claim. Typically, there are competing strains, changes of direction, conceptual tensions, paradoxes and ambiguities, so that to say "You own yourself of the Church of England; and consequently you own the National Religion now in England, to be the true Religion" is to say nothing meaningful at all, given that it was the understanding of that religion that was in question.26 The life of institutions and the life of ideas are interwoven, but it does not follow that the life of an institution can be defined by the life of an idea. We do not lead fully consistent lives, we can find some common ground with others who live different lives, and toleration may be possible (if it is) because consistency is an ideal rather than a fact of human life.

26. See Dworkin, "Foundations of Liberal Equality," 31-34, for a criticism of (the later) Rawls for relying on an appeal to the community's convictions: "We can only decide which principles are latent when we already have in hand some conception of justice whose categorical force we can defend in some other-way" (34, emphasis in original).

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Index

Abrams, Philip, 26, 43, 54-58 Ashcraft, Richard, 611.7, &~9 Atheists, toleration of, 89, 140, 146-47 Augustine, St, 19 Barlow, Thomas, 19, 26 Beiner, Ronald, 99 Berlin, Isaiah, 108, 109-11, 112-13, 12On.32, 121 Blasphemy, 152 Catholics, toleration of, 8-9, 89, 140, 148 Coercion, nature of, 41, 98, 119, 122, 142, 148 Cohen, Joshua, 139-40 Comte, Auguste, 100-02 Conscience, 85-86 Contractualism, 21, 24, 32-33, 35, 65, 70, 9°' 93-94. ^49-5° Coser, Lewis, 117 Cranston, Maurice, 6n.7, 53-54 Difference, politics of, 127, 152-54 Dunn, John, 47^49, 139, 143-54 Dworkin, Gerald, 40, 41, 43, 52-53, 63-64 Dworkin, Ronald, 42n.27,141^33,154^26 Elster,Jon, 22-23, i2in.34, 138^22 Ends and means, 41, 79 Finch, Leopold, 10-12 Gallic, W.B., 108, 132

Generalization test, in ethics, 40-41, 67, 72,75,81, 151 Goldie, Mark, 4, 98, 140^30 Grant, Ruth, 50^56, 51 Gutmann, Amy, 126-30 Habermas, Jurgen, 140 Herder, Johann Gottfried, 109 Hobbes, Thomas, 25 Holmes, Stephen, 73n.2, 88n.i, 141 Hurka, Thomas, 113—14 Identity, politics of, 14-15, 152-53 Indifferent things, 9, 25-26, 57, 92 Jeames, Thomas, 10 Kant, Immanuel, 35-38, 41, 51, 75, 132 Liberalism, 4, 14, 40-43, 68, 88, 146: and epistemology, 56, 65-66, 96; and freedom, no, 112, 141; and religion, 99, 105 Locke, John: on consent, 23, 40; and democracy, 39, 127, 131; on judgment, 14, 50-51, 60, 65, 66, 68, 137; and language, 43-44, 51,122, 128-30, 140, 144; on legitimacy, 8, 15, 31, 32, 47, 63, 64, 87; on natural law, 39, 46, 50, 125, 150; on the nature of belief, 17-34, ^7> 144; on orthodoxy, 30, 43, 65; on partiality, 33-34, 50, 55, 56, 58, 140; on reason, 35, 46, 60-61, 69, 90-91; on

164

Index

"tempers," 26-27, 48-49, 92-93; and trust, 24, 46-47, 51; works by: Epistola de Tolerantia, 6, 27—29; Essay Concerning Human Understanding, 17, 2411.27, 27, 33. 43. 53. 58. 62, 128, 132, 147; Reasonableness of Christianity, 2411.26, 104; Report to the Board of Trade, 82; Thoughts on Education, 26; Two Tracts, 17, 25, 250.30, 260.33, 54—58; Two Treatises, 330.51, 38-39. 58. 66, 69, 90, 127 Machiavelli, Niccolo, 109 Manin, Bernard, 133-34 Mill,John Stuart: on belief, 101-02; on choice, 93; and Comte, 100—03; on con~ tractualism, 90; on diversity, 92-93; on political morality, 89-90; and Protestantism, 99-102; on the religion of humanity, 99-102 Milton, John, 3, 99, 102, 120 Montesquieu, Baron de, 109 Nagel, Thomas, 32, 41-42, 43, 47, 68n.38, 141 Nicholson, Peter, 4, 54, 138 Non-neutral principles, 40-41, 43 Pascal, Blaise, 29, 74-75, 101 Passmore.John, 27, 28nn.38, 39, 29 Paternalism, 6, 55, 81, 94-95 Perfectionism, 70, 96-97, 105 Person, analogy with polity, 68, 116-17, 128,135-38 Plurality, idea of, 69, 91-93, 109-11, 137-38 Political morality, 5, 48, 89-91 Proast, Jonas: on belief, 138; on blasphemy, 152; career of, 3, 9—14; "Declaration of liberty of conscience," 13; on government, 31, 94, 97; on law, 13, 125, 152; and "moderate persecution," 13, 18, 23, 29, 75-76, 78, 84; and scepticism,

52-53. 59. 97-98. 15°> and "true religion," 13, 22, 43, 47, 59, 84, 124, 150 Protestantism, 93, 99—100, 102—04, 145 Rawlsjohn, 35, 37-39, 48, 52, 61, 63, 65, 68,69 Raz, Joseph: on autonomy, 112-15, 11920; on coercion, 119; moral pluralism, his definition of, 111; on toleration, 115-20; on virtue, 116-17 Rights, idea of, 5, 50, 59-60, 67, 86, 90, 137,146-47, 152-53 Rousseau, Jean-Jacques, 120 Rushdie, Salman, 99 Sancroft, Archbishop, i o-11 Schauer, Frederick, 74 Schouls, Peter, 25^28, 104 Simmel, Georg, 117 Stephen, James Fitzjames: on law, 72, 98; on legislators, 94; neutrality, his critique of, 96, 99; on paternalism, 95; on perfectionism, 97; on scepticism, 98 Taylor, Charles, 50, 118 Tenison, Archbishop, 12 Thompson, Dennis, 126-30 Thomson, Judith Jarvis, 130 Tillotson, Archbishop, 12 Toleration, concept of, 53, 71-72, 89-90, H5 Toleration Act (1689), 7, 45 Vico, Giambattista, 109 Waldron, Jeremy, 3—4, 19, 2on.i4, 21, 24, 2 n 7 -37. 28-29, 30-31, 620.27,65nn-33, 35 Webster, Richard, 99, 152^23 Williams, Beniard, 28-29 Wolin, Sheldon, 50 Wootton, David, 4, 7-8, 320.49