Mission impossible: Settling the just bounds between church and state

Journal/Book: Columbia Law Rev. 1997; 97: Sch Law, 435 West 116TH St, New York, NY 10027. Columbia Univ. 2255-2333.

Abstract: The modern contours of the debate concerning the relationship between church and state were established in 1688 by Locke in A Letter Concerning Toleration, and discussion of the issue has not advanced one millimeter beyond Locke's treatment even though over three hundred years have passed. Locke begins by identifying the problem: Every church is orthodox to itself and in the certain event that quarrels break out between competing orthodoxies, there is no one on earth capable of adjudicating between them. It is on the basis of the same insight that Hobbes proposes to provide order and stability artificially by setting up a sovereign whom all agree to obey on the guarantee that he will protect each man from his fellow. Locke, however, goes in another direction, the one ultimately taken by Anglo-American liberalism: the direction of tolerance. The problem is that were tolerance always the rule, government would be barred from restricting behavior that it found wrong and disruptive so long as those who engaged in that behavior could plausibly claim that they were moved to it by religious faith. Locke responds to this difficulty by refusing to extend tolerance to doctrines which ''manifestly undermine the foundations of society, and are therefore condemned by the judgment of all mankind.'' The contradiction is obvious: If every church is orthodox to itself; the category ''the judgment of all mankind'' is empty because it presupposes the common ground or shared point of view denied by the announcement that every church is orthodox to itself Indeed, if there were something called the judgment of all mankind, there would be no need of a liberal framework within which competing orthodoxies vied for political supremacy; any clash would simply be referred to the judgment of all mankind and the resolution it directed would be accepted by all mankind which, after all, would only be agreeing with itself Despite its obvious illegitimacy, however, this originary Lockean move is made over and over again by every liberal theorist including those who write today.

Note: Article Fish S, Duke Univ, Durham,NC 27706 USA

Keyword(s): MORAL CONFLICT; EDUCATION

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