From Toleration to Religious Freedom

What do we mean when we talk about ‘toleration’ and ‘religious freedom’? While some Western liberal societies might be described as ‘tolerant’ because they adhere (at least in theory) to the principle of religious freedom, the terms in fact have widely divergent meanings. This is made particularly apparent by consideration of the relationship between the politics of diversity in the past and in the present. Historical perspectives shine a light on the assumptions that underpin present-day understandings of ←2 | 3→these concepts; they also highlight some of the potential problems with their practical application. Yet it is only by working in tandem with the approaches of other disciplines that the historical contextualisation of ‘toleration’ and ‘religious freedom’ can help to untangle present-day uses of the terms. As both this introduction and the chapters in this volume demonstrate, the meanings of ‘toleration’ and ‘religious freedom’ are informed as much by their applications in contemporary law and politics as they are by their historical context. A cogent discussion of how these ideas shape nations, neighbourhoods, and individual lives demands a joint endeavour across disciplines.

Such an approach is not without its challenges. One key difficulty with comparing early modern and contemporary contexts is that the terms ‘toleration’ and ‘persecution’ had very different connotations in early modern minds from how they are understood today. Within the Christian world, most sixteenth- and seventeenth-century Protestants and Catholics adhered to the Augustinian principle that coercion of an erroneous conscience was an act of mercy for the individual, and essential for the temporal and spiritual welfare of the community. This is not to ignore the fact that by the end of the seventeenth century the effectiveness of coercing consciences to cure error was being brought into question. Thinkers such as John Locke and Samuel Pufendorf emphasised reason and morality over doctrine as the basis of stable, peaceful society.¹ However, these ideas were far from mainstream, and even Locke and Pufendorf placed firm limits on the extent of toleration.² The notion of positive liberty in religious matters was in no way current.

In fact, the belief in the necessity of persecution of religious dissidence remained surprisingly persistent across early modern Europe. During Europe’s Reformations, previously uncompromising confessional states were faced with the religious dissent of substantial minorities of their populations. While the initial response of many regimes was outright persecution, this ultimately proved ineffective in wiping out religious difference, and in many cases renewed the zeal of minority groups. Gradually, early modern societies at both local and state level began to operate in ways that were based upon a begrudging and reluctant tolerance of religious difference. However, even evidence of everyday accommodations and an apparent increase in state acceptance of religious diversity across Europe in the late seventeenth and eighteenth centuries is insufficient to suggest that impulses to persecute had disappeared. Conflict, persecution, and immense suffering for many religious minorities continued during this period, even in relatively peaceful communities.³ Arguments for liberty and toleration were frequently developed by religious dissenters, but were simultaneously undermined by suspicions that such groups would show little commitment to tolerance if they themselves gained power.⁴ Early modern approaches to toleration were therefore far from representative of a wholesale commitment to the principle of religious freedom. Toleration was, in most cases, a pragmatic compromise designed to limit the instability caused by continuing religious strife.

An indicative example of this is England’s so-called Toleration Act of 1689. This legislation allowed, for the first time in the country’s history, Protestant Dissenters from the Established Church to worship in their own meeting houses, provided they were registered. In its validation of worship outside of the Established Church, it represented a tacit acceptance that England had become a multi-denominational society. However, ←4 | 5→at its passage, it was a pragmatic piece of legislation, largely a product of the need to find a political settlement in the wake of England’s revolution of 1688–9.⁵ Not only was the Act limited in scope – it did not allow Protestant Dissenters to hold public office, and it excluded Roman Catholics altogether – but it was also ambiguous in implication and silent on a number of key issues, such as education. The result was that this ‘toleration’ continued to be contested for decades afterwards, with many supporters of the Established Church continuing to find social means of excluding Dissenters where the law no longer provided.⁶ Protestant Dissenters were, to a limited extent, tolerated; but England remained to a large degree a confessional state that begrudgingly accepted some difference in matters of faith among a limited group of people. Religious freedom was not on the agenda.

The difference between this early ‘toleration’ and current ideas of religious freedom is even more apparent if we assess the 1689 Act against standards of international human rights law. Rather than a manifestation of religious freedom, the Toleration Act, under any authoritative understanding of the contemporary components of freedom of religion, would be considered to violate the right to religious freedom. It is, for instance, well established under contemporary national and supranational human rights law that religious freedom entails the freedom to hold and manifest a religious belief without discrimination by state authorities.⁷ The Toleration Act would fall foul of this requirement when it allowed Protestant Dissenters to worship according to their beliefs, but denied the same liberty to Roman Catholics. It would also fall foul of the well-established prohibition of ←5 | 6→requiring adherence to a particular religious belief as a condition of access to public office.⁸ While it could be regarded as delivering a measure of toleration, this legislation was evidently not a promotion of religious freedom.

England’s Toleration Act of 1689 is but one of numerous limited, ambiguous, or impermanent pieces of ‘toleration’ legislation across early modern Europe.⁹ It is, however, of particular relevance to this volume, because its misplacement in an Anglo-centric genealogy of modern-day ideological acceptance of religious diversity has been critical to the tacit conflation of the concepts of toleration and religious freedom in both historical scholarship and political thought.¹⁰ Early twentieth-century scholarship on this subject was frequently underpinned by a narrative of progress from the bloody religious conflicts of the sixteenth- and seventeenth-centuries towards ‘Enlightened’ toleration in the eighteenth-century.¹¹ Such accounts have subsequently been challenged in the discipline of history by scholars of medieval and eighteenth-century Europe, who respectively highlighted elements of toleration in late medieval society and the continuation of persecution in the eighteenth century.¹² Nevertheless, recent work by scholars ←6 | 7→of political thought has observed that understandings of current concepts of liberty still frequently suffer by a ‘misleading placement’ of concepts of positive liberty in the early modern period.¹³ The result is an ongoing tension between contemporary and historical perspectives on toleration and religious freedom. This disciplinary mismatch inhibits a full understanding of the ideological basis and potential pitfalls of how these concepts are applied today.

This problem has been exacerbated by the fact that, in some instances, historians have themselves been guilty of conflating terms – such as ‘liberty of conscience’ and ‘religious liberty’ – that in contemporary legal discourse, as explained below, are understood to have separate meanings. While historians’ uses of such terms are appropriate for the early modern context, such conflation extends further the possibility of confusion in any exploration of the relationship between toleration in the past, and religious freedom in the present. For this reason, it is important for historians (and indeed political theorists) to be aware of the contemporary legal distinctions between toleration, freedom of religion, and freedom of conscience. Many constitutional documents and international human rights treaties recognise freedom of religion, but this is not always paired with the legal recognition of freedom of conscience.¹⁴ It may be thought that the way the law expresses ←7 | 8→toleration towards the diversity of religious and non-religious beliefs in a national and supra-national context is by granting a right to freedom of conscience and religion. This conceptualisation is, however, a mistake. In legal and philosophical thought, toleration, freedom of conscience, and religious freedom are not synonymous nor aspects of the same concept. Rather, they relate and may conflict in a number of complex ways. There thus exists a discrepancy between the quotidian application of supposed rights and their precise legal formulation. The nature of such discrepancy is as useful for historians to understand as it is for contemporary political theorists, because it underpinned the ‘ecumenism of everyday relations’ and ‘tolerance of practical rationality’ that structured religious coexistence in early modern Europe.¹⁵

Law, politics, and history thus provide a range of responses to the same concepts. There is both conflict and common ground between them. In many ways, contemporary legal analysis accords with the conclusions of historians – that toleration and religious freedom are not the same thing. The concept of toleration sits very uneasily with a central commitment of contemporary discourse on freedom of religion: that of state neutrality towards the truth or reasonableness of religious beliefs. Legal and political theorists generally agree that toleration entails putting up with beliefs and/or practices that one may disapprove of. Yossi Nehushtan accordingly says: ‘People make adverse judgements about others. These judgements may provide reasons to harm or offend the other. Yet the tolerant person has reasons – any type of reasons – not to act in certain ways that may harm or offend another.’¹⁶ It is then a prerequisite of toleration that one first holds an adverse judgement about certain beliefs or practices before refraining ←8 | 9→from imposing a disadvantage (e. g. causing harm) to the person holding those beliefs or engaging in those practices.

The above is the form of toleration observable across early modern Europe – a begrudging allowance of beliefs otherwise considered fundamentally undesirable – but it does not fit twenty-first-century principles of religious freedom. Today, if toleration were to be considered synonymous with religious freedom, it would suggest that in order to tolerate a particular religious belief, the law necessarily ought to formulate an adverse judgement towards those beliefs. Yet this conflicts with a cardinal prohibition of religious freedom: it is not for the state to engage in theological disputes of what, if any, religious beliefs are valid, true, or reasonable. The European Court of Human Rights has repeatedly asserted that ‘the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed’.¹⁷ The same stance has been taken by law courts in the UK, the USA, and Canada.¹⁸ Such judgements underline the impossibility of a legal attitude of toleration towards the plurality of religious beliefs that exist in liberal democracies.¹⁹ It follows that, in contemporary discourse as in historical scholarship, the concepts of toleration and religious freedom are foes rather than natural bedfellows.

More problematic, however, for any historical comparison of the legal aspects of toleration and religious freedom are differences in historical and present understandings of conscience. The propensity of historians to treat the term ‘freedom of conscience’ as if it were pertinent solely to matters of religion is problematic for any comparison with contemporary life. This tendency is entirely understandable in that it reflects the historical context: medieval concepts of conscience held that it represented the ‘vestigial ←9 | 10→presence of God’, and therefore allowed humans some rudimentary moral capacity; sixteenth- and seventeenth-century interpretations of conscience contested this approach in a variety of ways but maintained the association of conscience with the spiritual realm.²⁰ For early modern thinkers, conscience was fundamentally associated with God. In that sense, liberty in religious matters and liberty of conscience were inseparable, and it makes sense for historians to treat them as such.

This is not, however, the case in contemporary legal analysis. While in some cases the concepts of freedom of religion and freedom of conscience converge, in others they differ and even conflict. In many jurisdictions, religious freedom, rather than being interchangeable with freedom of conscience, is part of it. Accordingly, in analysing the legal meaning of freedom of conscience and religion in the Canadian Charter of Rights and Freedoms, the Canadian Supreme Court held: