As a historian of religion, much of my recent work has focused on tracing the genealogy of what we call religious freedom in developments internal to European Christianity. My goal has not been to frame a normative theory of what limit ought to be placed on the freedom of religion—whatever this word is taken to mean—in any contemporary jurisdiction nor (apart from the effect of British colonialism on India) to trace the very different histories of the modernization of cultural traditions in other parts of the world, as these traditions have been shaped by the complex forces of economic development, nationalism, and technologization. My concern has been instead to trace the entanglement, in its origins, of the secular ideology of freedom of religion with theological antecedents, in keeping with Friedrich Nietzsche’s understanding of genealogy as the uncovering of relations between categories that are ostensibly opposed: in this case, religion and secular law. This genealogical work does not depend upon a reification and reinscription of these categories, but rather takes its motivation from their effective separation in our discourse, and the accompanying “communication gap” between lawyers and scholars of religion: two groups to which I happen to belong.
Several of the posts inaugurating this discussion of religious freedom, including Elizabeth Hurd’s and Peter Danchin’s, note that intrinsic to the modern understanding of this concept is the idea that religion is a matter of private conviction rather than of public performance, a matter of belief rather than of ceremonial. This understanding of religion has commonly, and correctly, been traced to tendencies that became dominant during the Reformation, as signaled by the Protestant critique of the Catholic ritual economy of salvation. It has less often been observed, however, that the separation of religion from such external matters was frequently expressed through more ancient Christian ideas, such as the distinction among the natural, civil, and ceremonial portions of the Mosaic Law. The last category had supposedly been abrogated by the Gospel and Christ’s redemptive sacrifice, which ended the sacrifices and other rituals of Judaism, all of which were regarded as no longer necessary for salvation. During the Reformation, many Protestants reinterpreted these ideas, posing again the question of the relationship between the civil and ecclesiastical powers, both within the Israelite kingdom when it existed and, subsequent to the promulgation of the Gospel, within a radically different economy in which, in Paul’s terms, “grace” was opposed to “law.”
Recently, historian Eric Nelson has argued that the notion of a “Hebrew Republic” as a model for thinking about the ideal relationship between Church and State influenced the development of religious toleration. Nelson is right to focus on the importance of such theological debates to modern ideas of polity, and especially of freedom of religion. It is clear that, even at a time when there were few Jews in England, and prior to the Jewish Naturalization Act of 1753, imaginations of the Hebrew Republic were central to the articulation of the idea of religious freedom by many British Protestants. However, this Republic has often served as a negative example, of a time when law and religion were inappropriately commingled, to the detriment of both. The more “spiritual” dispensation of the Gospel represented, at the same time, the birth of a State that was secular in the sense of being clearly divided from the matters of conscience that, as opposed to the externals of Mosaic ceremonial, were now regarded as constituting the essence of religion.
I have become increasingly convinced that what marks this Reformation discourse of secularism and religious freedom as Christian is precisely its use of Judaism as a foil or counterexample, in addition to its transformation of other associated theological distinctions such as Paul’s oppositions between “flesh” and “spirit” or “law” and “grace.” But it is also clear that these transformations did not constitute a simple continuity with what had come before. Indeed, to borrow Charles Taylor’s characterization of the development from Christianity to secularism, this represented something like a “mutation” of tendencies already present. This characterization is apt, as long as we do not take it to imply any standard of orthodoxy: all living organisms are, in a sense, mutations.
During the same period that Taylor identified as central to the transition between Christianity and secularism—namely, Deism—we witness an exacerbation of several tendencies that were bound up with the self-definition of Christianity as against Judaism. I will identify and briefly discuss three such tendencies: internalization, universalization, and the critique of heteronomy.
Internalization is the easiest to grasp, and the most obvious. Indeed, as noted above, the redefinition of religion as “belief” or “conscience” has been widely pointed to as a dominant tendency in the modern treatment of religion. Deists simply took this much further, condemning nearly all ceremonial as irrelevant to the essence of natural religion. While John Toland used the irrelevance of ritual to salvation as an argument for the naturalization of the Jews and the toleration of their peculiar forms of worship, others, such as Thomas Morgan, contended that, as religion had nothing to do with external practices, the idea of an “established religion” (as opposed to an “established Church”) was a contradiction in terms. Although he argued against ecclesiastical oppression, Morgan redefined religion as pure freedom and argued that it could, in principle, never be coerced.
The self-definition of Christianity as a universal dispensation, which went back to Paul’s idea that in Christ there is “neither Jew nor Greek,” also accelerated with the Deist condemnation of anything resembling particularism, including not only the strange ritual laws observed by the Jews but also the miracles and revelations on which these laws were based, which violated natural law. Deists instead grounded natural religion on the eternal, and universal, foundation of human reason. In keeping with this distinction, Matthew Tindal, who argued that Christianity was merely a “republication” of the religion of nature, invoked the bifurcation in antique Gnosticism between the New and Old Testaments, between Christ and the God of the Jews. With this rejection of its Jewish heritage, Christianity could become truly excarnated and realize its full potential for universality.
At the same time, this bid for universalism constituted a rejection of what were, according to Tindal, the “merely positive and arbitrary” ritual laws of Mosaic tradition. What Deists most objected to in these laws was the manner in which they violated human autonomy, which depended on our ability to know and perform the moral law. Anathema to this notion of autonomy, and therefore abhorrent to Deists, was the idea of a God who could command us against reason and instinct, of a Yahweh who demanded blood sacrifices and promulgated his statutes as arbitrary fiat. Carl Schmitt was right to point to radical Protestantism and Deism as moments of exclusion of both the miracle and the sovereign “exception”; however, in so doing, he was defending the prerogatives of the God of the Hebrew Bible, at least as understood by Deists.
A number of these ideas were taken up and systematized by Immanuel Kant, who defined Enlightenment in opposition to heteronomy, or the acceptance of external authority. Kant’s thorough identification of religion with both reason and the internal sense of duty, led him, in his Religion within the Limits of Reason Alone, to label Judaism as “really not a religion at all but merely a union of a number of people…under purely political laws…[that] are directed to absolutely nothing but outer observance.”
The redefinition of religion as freedom of conscience simultaneously “liberated” religion from control by the State and rendered this freedom nugatory. Indeed, the same collapsing of religion into conscience or a purely internal condition, which led Thomas Morgan to argue for the impossibility of an “established religion,” is entirely compatible with any degree of enslavement of the body, now shorn of any spiritual value. That this is true is shown by Thomas Hobbes’ use of very similar arguments in the name of an absolute sovereignty in which the ecclesiastical power has been collapsed into the civil. I therefore think Peter Danchin is right to invoke Michel Foucault’s description of Kant’s kingdom of ends as a “contract of rational despotism with free reason.”
In this we arguably see one of the distinguishing features of modernity that cannot be explained on grounds internal to the theological debates that form part of the genealogy of religious freedom. Instead, there is the possibility of reading these trajectories I have outlined—toward internalization, universalism, and autonomy of conscience—as epiphenomenal to the rise of bureaucracy or the Panopticon. While the line between inner and outer, private and public, is inherently unstable, it is in these extreme theological formulations of religion as utterly incorporeal that we witness the construction of religion as precisely that object which cannot come into conflict with the State. In other words, this redefinition of religion represented a strategy for conflict avoidance, in the sense that it served the pragmatic objective of avoiding the possibility of intersection and friction between Church and State, and that it was flexible (or slippery) enough to be deployed differently, according to convenience, in different contexts.
Although these theological debates ended long ago, we are arguably still witnessing their aftermath. The Smith case (on peyote) discussed by Winnifred Sullivan in her post highlighted an “endgame” very similar to that outlined by Morgan or Hobbes: the point at which religion vanishes from the perspective of civil society or ceases as an independent power. The push-back against Smith signals a rejection of this (dis)solution of the problem of religion. At the same time, the inadequacies of this solution, as applied to other cultures that do not share the same set of theological presuppositions nor the same trajectory of modernization, have become increasingly apparent. Where we go from here is a question that cannot be answered by genealogy.
Tags: belief, Christianity, church and state, Employment Division v. Smith, Friedrich Nietzsche, genealogy, Immanuel Kant, law and religion, Protestantism, religious freedom, religious toleration, secularism