Freedom of conscience as a right
You have the human right to say what you think and to worship who you want, even if others find your religion or your ideas objectionable. In this article you can read where that right comes from.
The previous episode discussed the arguments for freedom of conscience, as formulated in the 16th and 17th centuries by thinkers such as Coornhert, Williams, Locke and Bayle. When it came to religious coercion for the sake of peace, morality, salvation, conscience, or the protection of the true faith, the arguments were gradually swept aside.
At a certain point, the arguments for freedom of conscience, religion in particular, were pretty much complete. But if one were stuck with a king who didn't want to know about it, what else could one do? Well, draw a trump card: describe freedom of conscience as a human right, which even the king could not avoid. In this article we look at how that reasoning came about.
The role of John Locke is central to this. Because according to Locke, kings were sovereign, but they could not escape two things: natural law and the social contract.
This social contract meant that kings could only rule with the (tacit) consent of their subjects. As king you can go a long way, you may think you can get away with anything, but at a certain point the tide turns and the people revolt. And then you have to be careful, because before you know it you will end up on the scaffold. So there are limits to what the people will accept, you are always dependent on them to a certain extent. The contractual element lies in the deal that has been implicitly concluded: the people delegate rights to the king. And in return, the king must put his best foot forward, or at least serve the general interest. It is a breach of contract if the king seriously fails to do this, and the people can reclaim their rights.
The social contract therefore assumes that people have rights. Most thinkers believed that people have these rights by nature. The king had to take natural law into account. And we're not just talking about the laws of nature, the way the cosmos works. It is obvious that the king is limited in this respect. No matter how powerful, kings cannot perform magic. But we are also talking about moral laws: things that we are naturally allowed or not allowed to do. This abstract concept was already known to the Romans, who called it ius gentium.
The existence of moral natural law, a divine commandment, was undisputed. Everyone at the time thought it existed. And kings who did not comply, lost their legitimacy: they were tyrants. But the content of natural rights had always remained vague. In this article, you will read how Locke attempted to reason out its contents. Locke was so successful in this that we can trace our current human rights to his reasoning. Although, according to Locke, the room for freedom of conscience was still very limited, as we will see.
As I have stated before: without his image of God, Locke's reasoning does not hold water. For a better substantiation of freedom of conscience as a natural right, we must look for a theory that also holds up if we disregard the will of a supreme being. And then we arrive at the natural law theory of Baruch Spinoza, which we will discuss in detail later.
Let us start at the beginning, because Locke's right to freedom of conscience did not come out of the blue.
Freedom of conscience as a natural right
As far as I know, the first time that the argument of an individual natural right to freedom of conscience was used, was in 1579. In an anonymous pamphlet, Calvinists claimed against the Habsburg regime the right to practise their religion freely in the southern Netherlands as well. Freedom of conscience is a natural right, the pamphlet stated. Anyone who violates that right is a tyrant who no longer owes obedience.
Two years later, in 1581, the States General of the Netherlands renounced their king in the Plakkaat van Verlatinghe, Placard of Abandonment. The basis was a whole host of reasons. The main basis related to tyranny, and concerned natural law. The reasoning was as follows. The king is appointed by God for the sake of the subjects. But when the king treats his subjects as slaves, oppresses them, overtaxes them, or robs them of ancient freedoms and privileges, he is a tyrant. Then his subjects are free to no longer recognise him as monarch if they:
(...) have no other means to preserve and protect their own, their wives, children and descendants and their innate freedom (for which, according to the law of nature, they owe good and blood).
— States General of the United Netherlands, Plakkaat van Verlatinghe, 1581
Three elements stand out here:
The people can depose tyrants.
The people have innate freedom.
According to natural law, subjects must defend that freedom tooth and nail.
That (1) the people do not owe tyrants obedience and may defend themselves against them was already recognised in the Middle Ages. Tomasso of Aquino, Marsilio of Padua and Martin Luther were already unequivocal about this. The 14th century scholastic John Wyclif is even known to have said that our conscience commands us not to obey a prince who commits mortal sins.
We may defend ourselves against tyrants; they may be deposed of.
Tomasso of Aquino, Marsilius of Padua, Luther, Duplessis-Mornay
There is more to say about (2) the innate freedom of the people and (3) our natural right to defend that freedom.
The first authors who were thinking about this were in the circles around Wilhelm of Orange: the Calvinist nobleman Philippe de Marnix and the Antwerp patrician Jacob van Wesembeeck. Van Wesembeeck wrote in 1569 about “the natural, innate freedom, which humanity values above all else and does not allow itself to be taken away.” Van Wesembeeck left open whether this was about individual freedom or a political, collective understanding of freedom. It seems that the text of the Placard of abandonment refers to a political concept of freedom, the freedom of a people, while Van Wesembeeck rather had innate, individual freedom in mind. The latter is more important for freedom of conscience, while the former is more about political self-determination.
People have a natural, innate right to freedom.
Van Wesembeeck
Well, Van Wesembeeck could well have had that opinion, but it's about substantiating it, and he didn't really do that. The first serious attempt came from the Frisian lawyer Aggaeus van Albada in 1581. A principle of natural law, he stated, is that you should not do to others what you do not want to be done to yourself, the golden rule. If you want freedom of conscience yourself, you must also grant it to others.
The Golden Rule is natural law, and it also applies to freedom of conscience.
Castellio, Albada, Walwyn
Moreover, he stated, faith and conscience are a personal gift from God, over which others have no power.
Faith and conscience are a personal gift from God, over which others have no power.
Albada, Coornhert, Walwyn
But freedom of conscience is a risky commodity. On the one hand there was the will to declare conscience free, on the other hand they did not want to give room to immoral ideas, and you also had to consider restrictions in the national interest. We see thinkers struggling with it around 1600.
Let’s cross the Channel. On the other side, in England, a rebellious, self-confident citizenry emerged in the early 17th century that stood up for its rights. While traditionally the king had been seen as a ruler appointed by God himself, that image began to erode. The king, who was also a human being, sat there not because God had decreed it that way, but because the people needed such an official. At least as long as the sovereign performed his duty properly.
Every Englishman is born free, the Leveller John Lilburne argued in 1645. A sovereign or cleric who wants to restrict the freedom of the Englishman must have very good reasons for doing so, he added. God has given us the fallible ability to judge for ourselves and to learn from mistakes, wrote John Milton in 1644. Governments and clergy who unnecessarily limit us in this, hinder our journey of discovery of the truth. Kings have no authority to act in matters of conscience, wrote Roger Williams in 1644.
As before in the Netherlands, they were brave attempts, but goals were only scored with a fully developed theory of rights. And then you soon end up with John Locke (1632-1704).
We derive our rights from God's rights
I have written elsewhere before about John Locke as the prophet of human rights. His theory about it is in his Second treatise of government (1689).
The state of nature has a law of nature to govern it, which obliges every one. (…)
Being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions. For men being:
all the workmanship of one omnipotent, and infinitely wise maker;
all the servants of one sovereign master, sent into the world by his order, and about his business;
they are his property, whose workmanship they are, made to last during his, not one another’s pleasure (…_
— John Locke, Second treatise of government (1689)
Locke believed that it is the government's job to protect natural law. As far as Locke was concerned, natural law consisted of the protection of life, liberty and property.
Nobody may harm each other’s life, liberty, or property,
because we are the property of our Maker.
Locke
Locke's theory convinced many people, but not because his theory was so strong; it was quite muddled. This was partly because he had an eye for the political interests of his wealthy employer. That is why property and possessions played such a major role. Moreover, he had to be careful not to antagonise the Anglican Church. Hence his defensive attitude towards Jonas Proast, while, like Bayle, he could have been much more challenging. Locke could not say everything he thought, and he talked his audience down.
Locke based his theory on property, as I described earlier. We are God's property, so everyone should keep their mitts off that, including the state. We, the earth, as well as ourselves, are owned by God. No one may infringe on that right, not even ourselves. The government must also respect that right and must act when citizens mutually respect each other's rights. You have been given life by God, you can do whatever you want with it, you have that right. You have the freedom to direct your life as you see fit, as long as you adhere to natural law.
God is the creator, so we are God's property. But we are also our own owner. Do we then own it together? And why is the creator the owner forever? As if you remain the owner of your children, even though they are already adults.
It is also confusing that property is actually rare in nature. Property is primarily a human institution, which only gained significance during the agricultural revolution. In nature, property is primarily the right of the strongest. In nature, you have property if you are the strongest, if you are granted it by the strongest, if you hide it, or if no one is interested in your stuff. If not, you will lose your meal or your nest. That is not how Locke intended his theory; for him it was precisely about protection against the rights of the strongest.
This is even more poignant if we abandon Locke's image of God as creator and leave the question of creation open, or replace the idea of God with nature or the cosmos, or if you think that God left us to our fate after creation. Who is our owner then? Can the cosmos be your owner, or is that a nonsensical idea? And does God even care what we do to her creation? How do we know that God has a will, a purpose, and how can we know it?
Locke's theory is only valid if you at least assume that nature has a purpose for us. But there are no good indications for this. Rather, nature is a series of causes and effects; we have never been able to determine a course.
Apart from that, freedom of conscience was not high on Locke's agenda. Although man is free by nature, the monarch had to maintain order in the interest of the country. And he was allowed to go quite far in that regard. Only when it concerned his own salvation, his religious conscience, did the monarch have to step aside. For the rest, Locke was fine with silencing the people in the interest of the country. You could think whatever you wanted, but that didn't mean you could say everything you thought out loud.
Freedom of conscience was therefore not in good hands with Locke. Let us see whether we would be better off turning to Spinoza.
Spinoza and the laws of nature
Many volumes have been written about Baruch Spinoza's (1632–1677) view of God, but for the sake of simplicity let us just say that Spinoza equated God and nature. That image of God made him highly controversial in his time.
His Portuguese-Jewish family, originally d'Espinosa, had settled in the Netherlands in the early 17th century and traded in olive oil, nuts and Mediterranean fruits in Amsterdam. When Baruch's father became ill, his two young sons Baruch and Gabriel took over the business. But Baruch mainly kept his nose in the books, and when a few shiploads of merchandise were lost, the family business got into trouble. Due to his unorthodox views and an unclear business conflict, he was expelled from his own Jewish community in Amsterdam.
After his repudiation, Spinoza left Amsterdam and made a living as a lens grinder in and around The Hague. He had a small, international circle of scholarly admirers, but open appreciation for his insights was risky, especially because of his view of God. In 1670 his Tractatus theologico-politicus was published anonymously. Although that work was still relatively innocent, it was banned in the Republic four years later. His life's work, the impressive Ethica, was only published after his death. Spinozism was a dangerous taboo that only gradually evaporated a hundred years after his death. It was better not to be openly associated with that. Among philosophers, he was nevertheless a pivotal figure in the so-called radical enlightenment, which was mapped out at the beginning of this century by the historian Jonathan Israel.
While earlier natural law thinkers, including Hobbes, Grotius, and Pufendorf, all assumed teleology, compatibility with God's will, Spinoza's natural law theory was descriptive and compatible with a nature consisting merely of causes, mechanisms, and effects. Natural law consisted of a reasoned, provable description of the state of nature. Consider, for example, the Pythagorean theorem, gravity, and the functioning of the human brain.
When Spinoza talked about natural rights, he did not mean what should or should not be allowed, but the natural course of things, effects that follow causes in a fixed pattern. Nature doesn't need anyone's permission, it just does what it does. In this sense, a right is nothing more than the natural order of things.
This raises the question of what a right is according to current standards. Let me summarise what I wrote about this earlier.
If you have a right, you can do something. You don't have to, you can. Doing something can also include thinking, saying, receiving, or keeping something. You never have a right on your own; there is always someone else involved. If you are the only earthling, you may well believe that you have the right to freedom of expression. But there is no one who can listen to you, and there is also no one who can silence you or help you express your opinion. Your right to free speech is meaningless if no one else is there.
The other person has an obligation to you, if you have a right. That obligation may consist of doing something or not doing something. If you have the right to breathe, no one else should stop you from breathing. But the other person also has to help you if you are suffocating. Someone's right therefore creates another's obligation to do something or to refrain from doing something. But it does not apply the other way around: someone's duty does not automatically create someone else's right.
In that sense, Spinoza's definition of a right is odd. According to Spinoza, you don't need anyone else for a right: if something is possible, it is a right. You can walk, so that's your right, until someone or something stops you. Spinoza is also not only talking about people when he talks about rights, but also about natural objects. If a stone can fall, the stone has the right to do so. The moral element of a right is also missing, and because there is no other person, there is also no duty. Things just happen.
Where I talk about rights below, I mean rights as Spinoza meant them: the ability to do something.
All people are subject to the same natural laws. It would be exciting if a handful of people could travel time, or turn themselves into a squirrel, but that's not the case, as far as we know.
As long as we observe the laws of nature, we can all do whatever we want. We can jump, read an article, or threaten the mayor. In that sense you can call everything we can do a right.
It is true that we are all subject to the same natural laws, but that does not mean that we can all do exactly the same things. One can jump higher than the other. In that sense, we do not all have the same rights. Big fish eat small fish, that's just how nature works. According to Spinoza you can say that big fish have more rights than small fish.
There is no such thing as natural good and bad, because nature has no benchmark to measure that against. But according to Spinoza, what we do can all be traced back to one fundamental drive: that of self-preservation. We call good what contributes to this; we consider bad what harms our self-preservation. The big fish does not eat other fish because it is such a vicious animal, but because it wants to live. We should not make the human use of reason greater than it is: we use our reason for our drive for self-preservation.
The purpose of the state is freedom
Let's summarise. Nature has no purpose, but is a series of causes and effects. A right is the ability to do something. You cannot attach a moral judgement to that. The closest thing to morality is our drive for self-preservation: what contributes to this can be seen as good.
But Spinoza also said:
The State’s purpose (is) to bring it about that they don’t risk anything by fully using their mental and physical powers, they use their reason freely, they don’t contend with one another in hatred, anger or deception, and they don’t deal unfairly with one another. So the purpose of the State is really freedom.
— Baruch Spinoza, Tractatus theologico-politicus (1670)
How did he arrive at that?
Thomas Hobbes had described the state as a community in which everyone gets in each other's way because of our individual freedom. Without imposed order it becomes a mess. Only a powerful sovereign, a “strong man,” is in a position to enforce harmony and cooperation.
We need an overarching power that represents the common interest and knows how to keep the peace, Spinoza agreed with Hobbes. Because unfortunately people are short-sighted, irrational and selfish. Mutual cooperation, peace and harmony aren’t a given. Tackling that problem requires coercion, which the state has every right to do.
The state is therefore given all the rights of all its residents, in order to effectively serve the public interest. In theory, the state is supreme: it can dispose of freedom, property, religious expressions, and lives. The power of the state is therefore unlimited, at least almost. The limit lies with what is still possible by nature: the state has no control over rights that citizens cannot transfer.
But what a state can do is not the same as what a state should do. A sensible state only uses these rights sparingly: in a good state, citizens have as much autonomy as possible.
Because just as people strive for self-preservation, so does the state as a collective. A state in which all citizens are starving has a lower chance of self-preservation than a state in which everyone has good food to eat. The state must strive for maximum freedom for all, where lives flourish, a peaceful and harmonious community, free from concerns about self-preservation.
Because where Spinoza wrote that freedom is the goal, he meant positive freedom, a paternalistic attitude. Spinoza's concept of freedom must be interpreted broadly. According to Spinoza, someone who acts selfishly and short-sighted cannot really be called free. You are only free when you act rationally in the interests of both yourself and the interests of the community. And the ideal state is par excellence the body in which those interests are united. Reticence will not achieve our goal: a harmonious community in which lives flourish. This also requires coercion. Sometimes you have to force people to be free.
But it does not necessarily have to be done through coercion: we can also mobilise cooperation by making people feel co-responsible for the interests of the community, through citizen participation and administrative transparency. Democracy had advantages and disadvantages, but on balance Spinoza seemed to say that an authoritarian democracy was the least bad form of government.
Freedom of conscience according to Spinoza
I already wrote that, according to Spinoza, the state owns all the rights of the citizens, except those that the citizens cannot transfer. Almost all of our rights can be taken away from us. Our money, our possessions, our freedom, even our life itself. In this sense, the state can exercise unlimited power. But there is one right that even the greatest tyrant cannot touch: our will and our reason, the opinions and feelings we have. No one can take that away from us. People naturally think like a fish naturally swims. You can suppress what people say, but not what they think.
There is only one natural right: the freedom of thought.
Spinoza
Spinoza was not so naive as to think that tyrannical governments will shy away from indoctrination and manipulation. You can't make people stop thinking, but you can influence their thoughts. He didn't elaborate on that further.
What people think, they usually say. If you want to effectively suppress what people say, you can only do so with a lot of effort. You have to deploy spies, institute censorship, and even then you cannot prevent what people whisper to each other. It is therefore better to give people as much space as possible to say what they think. Usually what people say doesn't do much harm.
Everyone must therefore be able to speak freely, including about state affairs. In principle, there is a lot to be said for free speech. It promotes creativity and dynamism in a society. Spinoza gave 17th-century Amsterdam as an example of how freedom of expression can work out well. As long as you remain reasonable, there is nothing to worry about. In fact: that deserves all the praise. Only as soon as you undermine the authority of the state, or morality, should you be called to order. If someone says in a reasonable tone that the state's policy should be different, and in the meantime does nothing illegal, he does not deserve punishment but the gratitude of the state as an exemplary citizen. Only if he stirs up unrest against the government or undermines it, should the government take action against him.
But while free speech was self-evident to Spinoza, he was less enthusiastic about religious freedom. Everyone could of course believe whatever they wanted, but Spinoza was critical of religious communities. Power must remain concentrated in the state, he believed. A powerful church organisation can get in the way of the state, and power structures must be as clear as possible. One should not divide the rights of citizens between two bodies. It was therefore preferable to have a general church with close ties to the state and as few controversial dogmas as possible. Let the church focus above all on justice and love for our neighbours; that is good for people and morals. The more general and open-minded the church, the lower the risk of sectarianism. Sectarianism was mainly fueled by theological potentates. On the surface you saw religious nitpicking, but actually it was a disguised struggle for power. He would therefore prefer to ban all sectarian congregations.
What do we learn from this?
Philosophically, Spinoza was crystal clear. Man's only natural right is his thoughts, his opinions. That is the one ability we cannot take away from a person. That, in my opinion, is the best answer to the natural law theory of Locke and his followers.
That states by nature should not touch people’s freedom, property and life is untrue. It's possible, so it's allowed. Whether it is wise, is another matter. Spinoza's view on the second question was informative, but he certainly did not have the final say. As a political thinker, he was also a child of his time. In a separate series of articles we will later discuss the meaning of the concept of freedom.
Freedom of conscience is good, I hope that you agree on that. But is there a natural right to freedom of conscience? Yes, but it is limited.
First of all, our opinions and feelings can be influenced. By people around us, by things we hear or read. And states also have that option, at best through education and information, and at worst through indoctrination, censorship and manipulation.
Second, a right to freedom of conscience means little if we cannot talk about our thoughts. There is a close connection between what we think and what we say. One can hardly stop people from saying what they think. Yet it is regularly tried, with moderate success. Is that an infringement of a natural right? When states start spying, if they manage to browse through diary entries, listen to bed secrets and whispers, so to speak. To be honest, I haven't quite figured that out yet.
In any case: Spinoza's clean approach to natural rights has not risen to prominence. He was probably too far ahead of his time. Locke's inventiveness, on the other hand, paid off, a century after his writings.
The French Déclaration des droits de l'homme et du citoyen of 1789 referred to both natural human rights and the social contract. Articles 10 and 11 stated:
No one may be disquieted for his opinions, even religious ones, provided that their manifestation does not trouble the public order established by the law. The free communication of thoughts and of opinions is one of the most precious rights of man: any citizen thus may speak, write, print freely, except to respond to the abuse of this liberty, in the cases determined by the law.
Two years later, in 1791, the United States adopted a First Amendment to the Constitution, which read:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
But time had of course not stood still between Locke's Second Treatise of Government of 1689 and the creation of these constitutional texts. In the century that followed, far-reaching freedom of expression would be advocated. A separate series will follow later about the secular limits of free speech, censorship, the harm principle, hate speech, and much more, with a starring role for John Milton and Baron D'Holbach, among others.
We have now slowly entered the secular age, and thus the end of this series on Toleration and Christianity. In the next episode I will end the series using the concept of modernity. Because, surprise, you can reconstruct this entire series in retrospect as a very long run-up to the period of modernity in which we still live.
For further reading
Baruch Spinoza, Tractatus theologico-politicus (1670), also available online in English
Baruch Spinoza, Tractatus politicus (1677), also available online in English
John Locke, Second treatise of government (1689)
John Locke, Epistola de tolerantia (1689), also available online in English as A letter concerning toleration
Martin van Gelderen, The political thought of the Dutch revolt 1555–1590 (1992)
Nicolette Mout, Plakkaat van verlatinge (2018)
Jonathan Israel, Radical enlightenment. Philosophy and the making of modernity 1650–1750 (2001)
Jonathan Israel, Spinoza, life and legacy (2023)
Theo Verbeek, Spinoza on natural rights, in: André Santos Campos (red.), Spinoza and law (2015)
Gary Herbert, A philosophical history of rights (2002)
Susan Mendus, Toleration and the limits of liberalism (1989)
Justin Steinberg, Spinoza’s political philosophy, Stanford Encyclopedia of Philosophy (2022)
This was the twentieth newsletter in a long series on Toleration and Christianity. An overview of all articles in this series can be found in the overview article Toleration in the history of Christianity.
The next episode will conclude this series.