Realizing Religious Liberty: “Stateness” or Competition?

16th February 2019 Off By binary
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Hans Eicholz

Initially Johnson and Koyama appear to be presenting a succinct, even compact, theory of historical development. The opening question leads one to believe that their theory is about the emergence of liberal states. To my mind, however, that framework does not quite fit.

In point of fact, they seem also to want to make a more specific claim: That the early modern state is the very source of the principle of religious liberty itself.But this claim too, is a bit confusing. Do they mean as an idea, or as a principle of law? Much of my confusion stems from the kind of explanation they have chosen to give.

What our authors have presented is a repackaging of what in German was called eine Stufenlehre,or a stadial theory, with all of the attendant problems these theories entail for historical causation. Under the mistaken impression that they have identified certain specific causal relations through the identification of the distinctions of specific kinds of rules, they have actually provided only descriptions of large aggregate events. And each step in this process of change has unfortunately encouraged insufficient attention to the complexity of the relationship of thought to action. That has, in turn, churned up all the classic chicken and egg problems that such ideas involve, whether we are speaking of the systems of G.W.F. Hegel, Friedrich List, Karl Marx, or the early ideas of Douglass North.

But make no mistake. I like Johnson and Koyama’s descriptions. Their typology of rules is vital for making important qualitative distinctions in the interpretation of human actions. I very much agree with their aim to caution all liberals of either classical or libertarian inclination not to treat the importance of a powerful state so cavalierly as to think they can make do without one. “Liberalism,” they want us to recognize, “is fragile and highly vulnerable in the absence of powerful states.” I accept this up to a point.

But from their typology of rules, we do not obtain an explanation for change, and from the need for government, we do not get a prescription for policy. Now, it may well be that in my rather quick overview of their book length treatment, I have missed where they offered a theory of historical change, or a means for evaluating public policy choices. They certainly have not done so in this essay, and I remain dubious that it can be done in any definitive sort of way while keeping to their framework.

For starters, what exactly does powerful mean? Many, I suppose, might be tempted to assert that it entails a claim of arbitrary will; that is to say, the authority to do whatever the sovereign wants. Such power over the lives of others, however, would not be the sort of state any liberal or libertarian would endorse.Might they mean what the American Founders meant when they spoke of “energy in government”? By this, they would stress efficiency in the exercise of specifically enumerated and limited powers. It is then a question of the kind of government, and not so much about its being strong or weak. If some liberals confuse these terms, they should not.

The real problem, however, is to be found in the treatment of status and contract as legal indications of trust. Henry Sumner Maine’s typology of status versus contract is a very handy way of classifying the differences among ideas about what is and is not acceptable behavior. What explains this shift in attitudes?

Koyama and Johnson’s answer amounts to a restatement of the question: “In our argument it was not that the Wars of Religion simply exhausted confessional and doctrinal disputes. Rather there was a transformation at the institutional level. The leading European states shifted away from identity rules towards more general rules.”

Ok. But what prompted this shift? All throughout their more extensive treatment, it is in fact the processes of competition, among princes, prelates, cities and, yes, eventually, what we now call states and, ultimately, nation states. Is it more accurate to say then that it is “The State” that gives us the full articulation of the principle of religious liberty in question, or is it the process of competition that drove states to do so? I would make a case for the process in this instance.

History is, of course, always a dynamic relation between thoughts and actions. Institutions are themselves the products of the articulation of various ends and means, what Ludwig Lachmann (1971) aptly called the “nodal points” of coordination. To understand either thoughts or the forms of action, you need to slice into the hermeneutical circle at some point in order to interpret the relationships involved. This is the nature of all feedback loops. Our authors recognize this in part, observing that “The emergence of religious freedom in the West was not the product of ideas alone.” I am not aware of any serious historian who would assert such an extreme claim, but they then go on to favor just one part of the circle: the primacy of the institution of the modern nation state: “It was only in the 19th century,” they assert, “that some measure of religious freedom was attained in Europe.”

Some measure? Do they not mean, some degree? And what could this be?

Tolere we are told is not really freedom. It is putting up with something with which you disagree. Freedom, on the other hand, is the positive affirmation of your right to practice what you wish; or in other words, “the idea that we have no right to judge or condemn individuals for their lifestyle choices.” Really?

If condemning means use of the state, then yes I agree, but if it is the right to judge, then no, I do not. We still tolerate those with whom we disagree, we just do not attack them. Something of the positive has crept into their notion of rights. Real religious freedom always has, and always will, retain the right to judge for oneself and one’s religious community.

Consequently, if it is true that the earlier forms of governance, from ancient Rome forward, sometimes observed more, and sometimes observed less tolerance, then it is not clear why the modern state must be privileged in this regard. And if the idea of religious freedom can be shown, as they have noted, to precede the early modern state (“there were many statements in favor of religious liberalism despite an intensification of religious persecution and violence”), then the origins of the principle must in fact be rooted in even earlier processes. And this is borne out by their own evidence.

That some states (e.g. Spain, and England under the Stuarts) did not observe the principle, and others like France under the premiership of Louis Henri, Duke of Bourbon, even reversed themselves, indicates that it was not the characteristic of “stateness” per se, but the processes of constitutional thinking that were more especially involved—processes of both thought and action.

Douglass North’s early works, which appear to predominate in our authors’ longer treatment, do indeed, at times, seem to favor institutional structures over mere thought. His later work, however, did not (See especially Understanding the Process of Economic Change 2005). Above all, North emphasized the important dynamic of competitive processes in the shaping of ideas in the West. This move was not taken out of thin air. He rather expanded on some older ideas.

Among those taking up the competitive argument very early on were Hume (1742) and Kant (1784). James Madison also recognized the importance of a multiplicity of competing faiths among the colonies in early America as the basis for American recognition of political constitutional freedom. Likewise Max Weber, in his more developed reflections published posthumously as the General Economic History (1920), observed the critical importance of the competitive element in the economic and political relations of Europe. And it was this that Randall Collins expanded upon in his Weberian Sociological Theory (36, 1986). It was also a central theme in the histories of E. L. Jones (1981), Harold Berman (1983, 2003) and Hendrik Spruyt. The latter’s book, The Sovereign State and Its Competitors (1994), is particularly relevant here, because Spruyt drew specific attention to the importance of the league cities.

Koyama and Johnson themselves have noted, in their longer treatment, the interesting case of the city of Hamburg, one of the great Hansa cities. It was especially “favorable to Jewish settlement,” they noted. Being open, as the merchant senators of the city were, “to international trade” (300, 2018), Hamburg welcomed moral strangers. Granted, the city-states were ultimately replaced by the nation-state, but they were responding to the same competitive process to which the later nation-states were also subject.

To conclude then, I would contend that it was the processes involved in the context of decentralized authorities, and the ensuing competition among them, that paved the way for the widening of toleration and eventually the formation of constitutional republican forms of modern governance.

The point is not to disagree with the importance of well-constituted political regimes. It is however misleading to say that it was the nation-state, full stop, which gave us religious liberty. It was rather the processes of competition that forced open the various monopolies of power.

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