Some Jewish reflections on Locke's Letter Concerning Toleration.

One of the most provocative insights from the flood of punditry that followed the September 11th attacks came in October 2001 from Andrew Sullivan. Writing in the New York Times Magazine, Sullivan suggested that the Muslim world has not reached the same understanding as the West about the need for church and state to be separate because it has had no historical experience parallel to the bitter religious wars that racked Europe in the 16th and 17th centuries. Sullivan further opined that Islam was entering such a period now, in which moderates were being pitted against reactionaries, with the West serving as a convenient target for the latter to score points in what is, essentially, an intramural struggle.

I make no claim here about the correctness of Sullivan's analysis, either of the supposed innocence of the West as bystander, or of the current state of Islam, or of the supposed lack of prior religious infighting in the Muslim world. (For example, shouldn't the bitter split between Sunnis and Shi'ites count?) Nor, for that matter, is it so clear that the West is even now entirely free from religious intolerance. Nevertheless, Sullivan draws our attention to how remarkably well-entrenched the West's value of religious toleration has become, not only relative to the Muslim world, but even relative to the West's own bloody history. Sullivan concluded his article by pointing to John Locke's A Letter Concerning Toleration (1685) as a watershed in Western history. It is of course a perennial chestnut, whether ideas produce events or events produce ideas. All the same, the present historical juncture does seem a propitious time to return to Locke's Letter, full of appreciation for the triumph it represents over one of humankind's self-destructive tendencies.

What I propose to do here is take a look at the Letter from the somewhat equivocal vantage point of Judaism. I call this vantage point equivocal, first, because in one sense Judaism is part of the Western world which has, for the most part, accepted the value of religious toleration Locke argues for, yet in another sense Judaism rests outside the Christian frame of reference from which Locke writes. Second, Jews have surely benefited from the attitude of toleration Locke propounds, possibly more than any other single group. Yet Locke's arguments, in particular his assumptions about religion, might still leave Jews uncomfortable. If the Letter reflects a way of thinking Jews do not find congenial, might we have reason to be uneasy about our place in the Western societies whose value of toleration traces its historical genesis to Locke's world and indeed to this very text? By the same token, centuries after Locke urged toleration of minorities, we find ourselves in the surprising position--quite inconceivable in Locke's time and for a long time afterwards as well--of being the political majority in Israel. How well do Locke's arguments apply to the Israeli situation? Despite their origin in Christian modes of thinking, do these arguments nevertheless suggest the need for rethinking the political role of religion in Israel?

I will first recount the argument of the Letter itself, noting along the way points at which Jewish readers might raise their eyebrows. I will then discuss the reaction of one very significant Jewish reader of Locke, Moses Mendelssohn. Mendelssohn, in his Jerusalem (1783), attempts to redefine the distinction between church and state in what he takes to be, on the one hand, a more Enlightened and, on the other hand, a more Judaic way. In the end, however, Mendelssohn's system fails, and this sends us back to Locke with renewed appreciation: in the last analysis, the strength of Locke's conception is not its vision of religion but its vision of the state. I will close with some reflections on where this examination of the Letter leaves us with regard to church-state separation in America and in Israel.

I

Nowadays, Locke is best known philosophically for his work in political science (Two Treatises on Government, 1689) and epistemology (Ideas, 1690); he is also an important figure in philosophy of education (Some Thoughts Concerning Education, 1695). But Locke himself considered toleration the most important issue of his time, and his work on toleration to be his most important contribution. Not only was A Letter Concerning Toleration his first publication, but he returned to the issue, in response to objections, to publish a Second Letter (1690) and a Third (1692), and he was at work on a Fourth Letter when he died (1704).

The Letter is brief (about 50 pages in most editions), but it is packed with good arguments. (1) The 17th century was obsessed with religious issues and differences, and Locke, sharp as a tack, nimbly skewers whatever arguments counter to his were in the air at the time. Full philosophical analysis of Locke's argument is beyond my scope here; readers are referred to the excellent and growing secondary literature on Locke. (2) What I will do is rehearse the argument roughly in the order in which Locke presents it, stepping aside now and then to record points at which a Jewish reader might look askance at Locke's claims and approach.

Locke does seem to know a little bit about Judaism. Jews had been living openly in England since 1655, when Locke was 23 (and probably earlier, if hints like the Shakespearean character Shylock mean anything). Locke mentions explicitly that Jews do not baptize (36), and notes that although the time and place of worship do not matter in Christianity, they do matter in Judaism (38). (3) He also discusses at length the point that ancient Israel was a theocracy in which idolatry was not just heresy but tantamount to treason (42-44).

It is clear throughout, however, that Locke is addressing himself solely to Christians. The Letter begins with the point that religious persecution, like any imperious use of power, is un-Christian by the light of the Gospel itself. Though it might seem clear to many that persecution is indecent for pagan and monotheist alike, this line of attack--a virtual ad hominem charging many of those involved in politics in Locke's day with rank hypocrisy--was quite a red flag at the time. At once, however, a Jew must wonder: What if one's religion is less focused on turning the other cheek? What if one's religious hero is not Jesus, but Moses, Joshua, Pinhas, or Elijah (let alone Mohammed)? Locke returned in the Second, Third, and Fourth Letters to an argument based on the internal inconsistency of Christians wielding force on behalf of Christianity in a very un-Christ-like way. It is surely understandable, since the vast majority of the population, as well as all the political players, and especially the royal family, were Christian, that Locke would address them alone. (4) But it does limit the Letter's audience right away.

The same happens once Locke begins his argument proper. Locke asserts that the issue of church and state can be settled only by distinguishing the proper realms of each. He gives three arguments why the state's force must not interfere with the operations of the church: (1) care of one's soul belongs only to oneself, not to the magistrate; (2) the magistrate's power consists in outward force, whereas true religion is a matter of inward persuasion; and (3) the diversity of religion among the nations means that, if one were required to follow the religion of one's prince, and there is only one way to God, all those born in the "wrong" countries would be out of luck with regard to salvation, and that hardly seems fair. Since Locke accepts that there's only one way to God--a contentious point to which we will return--it follows that it would be unfair to force people to follow the religion of the prince whose rule they chance to be born under (17-20).

This last point was another red flag in the discourse of the day. Pointing to the diversity of nations and their religions seemed to Locke's contemporaries to smack of relativism, and defense from this charge (leveled most assiduously by the Oxford chaplain Jonas Proast) is the other great theme of the Second, Third, and Fourth Letters. To a Jewish reader, however, it has always been obvious that there is a diversity of religious belief and observance in the world, and almost as obvious that this seems to be part of God's plan. Later in the Letter Locke pushes the point that "If there were several ways [to God], there would not be so much as a pretense left for compulsion" (30). Locke employs a contrary-to-fact subjunctive here--of course there's only one way, we Christians know; we simply disagree about what it is. Jews know, however, that there are multiple ways to God, that there must be the seventy nations in order for there to be the Jewish nation, and that Judaism is only for members of the covenant. (5) Jewish particularism, so battered in the liberal press these days, is in fact a great guarantor of toleration of difference: Jews do not expect others to be like them. And Israel's exemplary record with regard to guaranteeing freedom of religion for its non-Jewish citizens seems to me to bear this out. (6)

At any rate, this third argument is a sideshow in the original Letter; it is the first two that dominate. Over and over Locke points out that, even if the state were to compel religious observance of whatever sort it thought correct, it would never be able to compel belief of the kind that religion calls for. It could of course censor all religions contrary to its own favored one, and promote education in its own favored one, to the point that children would know no other, and grow up believing sincerely in that one. (7) However, though such belief might well be sincere, it would not be genuine; to be genuine it must be genuinely chosen, with full understanding and with full knowledge of alternatives. Faith, then, is not faith without genuine belief. (8) For example, while the law can compel immersion in water, it can never convince someone that baptism will save his/her soul. Locke makes this point both early--"(F)aith is not faith without believing" (18)--and late--"(I)f truth makes not her way into the understanding by her own light, she will be but the weaker for any borrowed force violence can add to her" (46). Since true belief cannot be achieved by compulsion, such compulsion is wrong, and wrong in two senses: On the one hand, the perpetrator of religious compulsion is behaving irrationally, since the desired goal simply cannot be achieved in this way. (9) And on the other hand, the victim of such compulsion is treated unjustly, since no good purpose can possibly result from it.

Jews, as historic victims of such force, must applaud these two arguments. However, the conception of religion at work here does not mesh easily with that of Judaism. Care of one's soul is not entirely a private matter in Judaism, in at least two respects: (1) The individual needs the community (i.e. a minyan, a prayer quorum) to fulfill certain liturgical mitzvot (commandments); and, (2) in the ancient conception at least, the community needs the individual to toe the line--since the community is being judged as a corporate whole, everyone's benefit (rain in its due season, etc.) depends on everyone's moral and religious probity. And while inward persuasion surely matters in Judaism (more about this below), Judaism envisions a fluid back-and-forth between the inner and the outer: Inner kavvanah (intention) ensures proper performance of external mitzvot, at the same time that performance of external mitzvot produces in the practitioner the proper inner state. (10)

Locke, trying to be thorough, goes on to restate the issue from the standpoint of the church. This leads to a certain repetitiveness in the Letter, again we meet the argument that religion is a matter of conscience, not force, and thus is inappropriate for civil penalties. But this standpoint too leads Locke to make statements which grate against Jewish ears. For example, Locke defines the purpose of the church as salvation (20). While some Jews do have express hopes about an afterlife they believe they will earn by being good Jews, many do not; eschatology is not a doctrinal litmus test for being Jewish (or even for belonging to any of Judaism's various streams). And on anyone's definition, being a good Jew is more a matter of behavior than belief. Similarly, Locke defines a church as a voluntary association and goes on to assert: "Nobody is born a member of any church; otherwise the religion of parents would descend unto children by the same right of inheritance as their temporal estates, and everyone would hold his faith by the same tenure he does his lands, than which nothing can be imagined more absurd" (20). But of course, one can be born Jewish, and in fact the vast majority of Jews are Jews by birth. The analogy with landholding is almost bizarre: Jews hold their Judaism with a lot more firmness than they do land--the latter can be confiscated and its tenants evicted, as Jews often have been, but they leave as Jews all the same. Even conversion does not close the door permanently, in line with the dictum, yisrael v'hoteh, yisrael hu ("a Jew who sins is still Jew"). Note Locke's use of the word "faith" here as well; earlier too, Locke argued that religion was a matter of inward persuasion by saying "faith is not faith without believing" (18). That faith requires belief is not foreign to Judaism, but Locke's focus on this as the essence of religion is. (11)

Having described the matter from the dual standpoints of the state and the church, Locke goes on to define how far the duty of toleration extends. In this context he writes, "If any man err from the right way, it is his own misfortune, no injury to thee; nor therefore art thou to punish him in the things of this life because thou supposest he will be miserable in that which is to come" (24). This is a fine "zinger" to direct at a Christian engaged in persecution of those believed to be unsaved. However, as already noted, Judaism is, if not entirely focused on "this" world, surely more so than is Christianity. At the same time, we have also noted already the Biblical idea that the community bears God's scrutiny as a whole. If the sins of a few, even a single person, might keep the rains from the entire polity, it seems the agent of the polity would be justified in enforcing proper behavior. The magistrate who did not do so would be derelict of duty.

Locke eventually does confront the issue of what he calls "practical" religious opinions, i.e. those that influence behavior here and now, as opposed to the "speculative" (i.e. eschatological) ones on which he has focused most of his attention thus far (46). And here there finally emerges the idea which underlies Locke's entire conception of the separation of church and state.

Locke has earlier argued that a person who breaks the law to perform a religious act should be treated as any lawbreaker would; by the same token, if a religion directs its adherents to do something permitted by the law, the un-truth of the religion is not an excuse for the magistrate to punish the doer of the deed. Locke gives the potent example of animal sacrifice: If it be permissible to kill a lamb for food, it cannot be impermissible to kill it for sacrifice to the gods, even if such a practice is regrettably unenlightened. Likewise, the impermissibility of killing an infant is not mitigated by the purpose of such killing being religious (39). The law, that is, governs physical behavior only, and this the magistrate may and should regulate. Belief, however, is not responsive to force and penalties, and in these matters the state must restrain itself.

But the category of practical opinions raises the possibility that the illegal or immoral actions have come from religious beliefs. Must the state tolerate the teaching of actions which it forbids? Confronted with this, the strongest test of his division of the roles of church and state, Locke at last deploys his strongest argument, one which can be seen to underlie his other arguments and indeed his vision of church-state separation as a whole:

      Every man has an immortal soul capable of eternal happiness or
    misery, whose happiness depend(s) upon his believing and doing those
    things in this life which are necessary to the obtaining of God's
    favor.... [The weight of eternity means] first, that the observance
    of these things is the highest obligation that lies upon mankind,
    and ... (s)econdly, that seeing one man does not violate the right
    of another by his erroneous opinions .... the care of each man's
    salvation belongs only to himself. (46)

This makes it sound not only as if each individual has a right of free exercise of religion against the state, but also that the needs of religion, in whose balance pan lies eternity itself, outweigh those of the state. "But," continues Locke, "... men have also their temporal lives here upon earth; the state whereof being frail and fleeting, and the duration uncertain, they have need of several outward conveniences to the support thereof" (47). The body's needs require cooperation between citizens and so give rise to the state; Locke goes on to give here in brief form the essence of the political philosophy which finds full expression in the Second Treatise. The very genesis of the state, Locke argues, presents it with its limits at the same time--it is to be devoted only to the procuring and protecting of temporal goods for its citizens (48). The magistrate should not tolerate religions which undermine society, but these are rare, says Locke (50); it is only oppression which turns them against society in the first place (52-55). Nor should the magistrate tolerate religions which have allegiance to another country (51). (12) Finally, the magistrate must not tolerate atheists; since they are unable to take oaths, their trustworthiness as citizens will always be in doubt (52).

Thus by the end it is clear that the entire Letter--both the specific arguments Locke brings concerning the contrast between the outward coercion of the state and the inward persuasion of the church, as well as the broad vision of church and state restricted to their spheres--rests on a rigid distinction between body and soul. The strength of the separation between church and state is to be precisely as strong as the distinction between soul and body. The source of this distinction is, on the philosophical side, Descartes, and on the religious side, centuries-old Christian doctrine; both have their source, ultimately, in Plato's arguments in the Phaedo. But the distinguished lineage of this distinction does not make it any more palatable to Jews, whose teachings regarding the soul do not separate it so strictly from the body. Examples of this in the tradition are myriad; I'll bring just two here, both from the tractate Sanhedrin of the Babylonian Talmud. One is the pithy statement that the soul is the root and the body is the branch (110b); this shares with the Christian conception the notion of the soul's hidden-ness without differentiating soul and body as different metaphysical substances. The other is the famous story of the king who hires as guards for his orchard a lame man and a blind man. They manage to steal fruit for themselves by the blind man carrying the lame on his shoulders. When the king accuses them, the one says, "How could I walk?" and the other, "How could I see?" So the king puts the one back on the other's shoulders and judges them as a unit. So too, God restores the soul to the body on Judgment Day and judges them as a unit (91a-b). A distinction between body and soul is thus present in Judaism, but the emphasis is on their integration in the whole person rather than their essential separation with a view towards the eternal afterlife.

In sum, the wall of separation between church and state for which Locke argues in the Letter is based on a prior philosophical distinction between soul and body which suits Christianity more than it does Judaism. It is at this point that the equivocal position of Judaism vis-a-vis Locke becomes apparent. This text cemented the protection of minority religions in England and formed the basis for our own First Amendment (ratified almost exactly a century after the original publication of the Letter), and there should be no problem with Jews enjoying the protection Locke's argument affords without sharing its philosophical underpinning. However, there are still two avenues for concern. On the one hand, our suspicions about the philosophical distinction can grow into full-fledged worries about the stability of the wall. Body-soul dualism, along with the rest of the Cartesian philosophical paradigm, has been under philosophical attack in the last two centuries. Since we too have our own doubts about it, how can we count on it? There are grounds for concern about the strength of the wall even in the Letter itself. Locke concludes the main body of the Letter by saying that each citizen should enjoy the same rights of practice, dress, and assembly (55). But the attitudes underlying this profession of egalitarianism emerge clearly on the next page:

      Thus if solemn assemblies, observations of festivals, public
    worship be permitted to any one sort of professors, all these things
    ought to be permitted to the Presbyterians, Independents,
    Anabaptists, Arminians, Quakers, and others, with the same liberty.
    Nay, if we may openly speak the truth, and as becomes one man to
    another, neither pagan nor Mahometan nor Jew ought to be excluded
    from the civil rights of the commonwealth because of his religion
    .... Shall we suffer a pagan to deal and trade with us, and shall we
    not suffer him to pray unto and worship God? If we allow the Jews to
    have private houses and dwellings amongst us, why should we not
    allow them to have synagogues? Is their doctrine more false, their
    worship more abominable, or is the civil peace more endangered by
    their meeting in public than in their private houses? But if these
    things may be granted to Jews and pagans, surely the condition of
    any Christians ought not to be worse than theirs in a Christian
    commonwealth. (56-57)

That Locke considers our religion "false" and "abominable" is off-putting, but is after all his right. What really makes this passage troubling is the assumption that, even after the granting of full religious toleration, England remains a Christian commonwealth. The protection provided for religious minorities by Locke's wall thus appears a fragile thing. And I assume no one who listens to political discourse in America today would maintain that a declaration someday that America too is a Christian commonwealth is at all far-fetched.

However, the worry is not just that toleration might vanish, but that its practice, arising from Anglican roots, might press other religions, including Judaism, into its image. So the other side of the question is: Can Jews live their religious lives comfortably on the "church" side of the separation? (13) Locke's image of religion is of people coming together for an hour on Sunday morning to affirm the things they believe about the afterlife and then parting for the rest of the week. Is this a functional model of Judaism? Michael Walzer notes that religions protected by the First Amendment have tended to become "protestantize(d)" in America. (14) That is, they have tended to shape themselves to fit the space of the freedom they're guaranteed. I would argue that there's a lot more to the difference between old-world Judaism and new-world Judaism than just the First Amendment. But still, has Locke's toleration re-made other religions in its own image? Maybe the holism of Jewish religious life--connected with the holism of body and soul--is impossible in America. Maybe we must all move to Israel in order to live fully as Jews.

There are thus two worries: first, that the wall between church and state will not hold up, leading to minority religions being uprooted altogether; second, that the wall will stunt the growth of religions which do not resemble the ones Locke has in mind. In the next section of this paper, I will examine the argument of a Jewish thinker who responds to Locke by emphasizing the holism of Judaism, yet desires at the same time to live an emancipated life in the Diaspora, and who thus attempts to define a relation between church and state which will allow space for that holism: Moses Mendelssohn.

II

Mendelssohn was the giant of the Jewish Enlightenment in Germany, a philosopher of such prominence and gifts that one of his essays beat out one of Kant's for a prize in an academic competition. His position as the best known Jewish intellectual of his time put him at the forefront of the contemporary effort to attain political emancipation as well. In this light, it is an especial mark of Locke's historical significance that when Mendelssohn seeks to define his own position on the relation between church and state in Jerusalem (1783), published almost exactly a hundred years after the Letter (a century, by the way, during which the Wahhabi movement of Islam got its start), he presents his position as a response to Locke. (15) While Locke advocates a rigid distinction between church and state, Mendelssohn in the first half of Jerusalem sees these two institutions working together to promote public virtue. But when, in the second half of Jerusalem, Mendelssohn seeks to find space for religious difference, he winds up coming back to Locke's arguments.

Mendelssohn criticizes Locke's bifurcation of civic life into distinct realms of religious and governmental authority on three grounds. (16) One is that religion need not be individual: "[Locke's] opponents ask, what prevents us from promoting our eternal happiness collectively too? ... If men can promote their eternal salvation by public measures, duty as well as reason would demand that they band together for this purpose" (16). This, as we have noted, is traditional Jewish communitarianism--we face God's judgment as a group, not (or at least not solely) as individuals.

Second, "it is neither correct nor in man's best interest to distinguish so sharply between the temporal and the eternal. Eternity, in principle, can never be man's portion; his 'eternity' is merely an infinitely prolonged temporality" (17). This criticism, I take it, is based less on metaphysical philosophy than on philosophical anthropology--to be human, according to Mendelssohn, is to be wholly temporal. Locke utilized a Christian-derived conception of the human as a temporary fusion of inherently separate substances, one of which is inherently eternal; Mendelssohn's understanding of what it is to be human finds body and soul, the temporal and the eternal, inseparable. Mendelssohn immediately reassures his readers that he does believe in immortality and an afterlife, citing the rabbinic analogy that this life is merely a vestibule. But he then adds a third criticism of Locke's bifurcations: "Nevertheless, we must be careful not to establish an antithesis between this life and the one to come or to persuade people that their true welfare in this life and their eternal bliss in the life to come are unrelated--that their temporal and their eternal well-being are two different things and that it is possible to pursue the one while neglecting the other" (17). People need not mortify their bodies to succor their souls, nor neglect their religious lives while cultivating their communities in the here and now. Locke's strict division between church and state, as noted above, is incongruent with the Jewish conception of a more holistic person and a more this-worldly orientation.

Having concluded his criticisms of Locke, Mendelssohn proceeds to give his own vision of religion and state as utterly intertwined. It is necessary to recognize, he argues, that our duties to ourselves and to God are linked with our duties to others, and that our common welfare encompasses both present and future, both the spiritual and the material.

      Unless we fulfill our obligations, we can expect happiness neither
    here nor hereafter, neither on earth nor in heaven. But, for the
    fulfillment of our obligations, two things are required in turn:
    action and conviction. 'Action' is the realization of what duty
    demands; 'conviction' ensures that our actions spring from proper
    and correct motives.... (I)t is the task of society to promote both
    vigorously through the collective efforts of all. (18)

The distinction between action and conviction seems to mirror Locke's distinction between external actions and internal conscience. And sure enough Mendelssohn agrees with Locke that the state "is concerned solely with men's actions [and thus] can achieve [its ends] by outward compulsion, making it at the same time possible for my neighbor to satisfy his needs" (32-33). The difference comes with regard to the church. For Locke, the church is concerned solely with religious beliefs and worship; Locke's vision of religious life is of like-minded gentlemen gathering for an hour on Sunday morning to affirm their beliefs in common. Mendelssohn's vision is of the Orthodox Judaism in which he was raised: a set of practices which inform life seven days a week. Thus he sees the teachings of religion as closely related to the proscriptions of civil law. In fact, claims Mendelssohn, religion imposes no duties at variance with those of reason; "religion merely gives solemn sanction to them" (34). Since surely it would be a healthier society, and a more virtuous citizenry, if the laws were obeyed out of conviction rather than fear of punishment, it is in society's interest to teach virtue itself. Mendelssohn recognizes that this sort of teaching is the church's province. He thus proposes that the church's primary function be to teach moral truths which will make good citizens.

So far, so good: The church's moral role has been affirmed distinct from that of government. However, the church has no money to pay these moral teachers, for Mendelssohn has argued that "God neither needs our assistance nor does He ask any service of us; [as a result] the church has no claim upon our property and possessions" (34). Thus the church should hold no property of its own nor enter into any contracts which would make it a player in civil society. "The sole right of the church is to admonish and to teach ... nor has the church the right to reward or punish actions" (34-35). Mendelssohn here is even stricter than Locke, who surely imagined the church keeping its properties and its income. To Mendelssohn, such holdings would put the church into civil society and corrupt its purpose:

      Civil actions are the concern of the state; genuine religious
    actions, by their very nature, will not be affected by the use of
    force or the temptation of bribes. They must flow freely from an
    impulse of the soul. (35)

So the church will have no money, but will provide teachers of civic virtue. How then will these be paid? Mendelssohn insists that "religion and remuneration, teaching virtue and expecting payment, preaching the fear of God and accepting wages are mutually exclusive" (35). He concedes, though, that people are entitled to compensation for their time. Since the church itself has no money, the salaries of the clergy will be paid by--the state.

Here the reaction of a Jewish reader must be: Is he crazy? We were hoping for freedom of religion, and we got official state clergy. Surely if the state is paying, there will soon be conformity of religious belief with whatever the state wants it to be. At this point, Locke's rigid distinctions look good.

One thing to say in Mendelssohn's defense is that "religion" here means Enlightenment Deism, the view that there is a Creator who placed us in the world in order to be good and eventually get our reward. Mendelssohn thinks of this religion as universally true, so there is no need to protect it, nor to allow for any other sort of religious teaching. Since there is only this one truth, it is the only one the state could possibly pay for, so there is no harm in having the state pay clergy salaries. Thus any absolutism the state might impose on the clergy is no different from the absolute truth of the Deism Mendelssohn already assumes. While we might disagree with Deism, we must concede Mendelssohn's consistency.

The second, more important thing to say in Mendelssohn's defense, however, is that there's more to the story. In the second half of Jerusalem Mendelssohn shows his full hand. Judaism will not, on this scheme, be controlled by the state, because Judaism has a different status than Enlightenment Deism--it is a practice, not a set of beliefs. In a crucial passage, Mendelssohn asserts, "Judaism does not claim to possess the exclusive revelation of eternal truths that are indispensable to salvation" (68). Such, after all, were the conflicting claims of religion as Locke conceived of them, claims exclusive of each other, whose inability to be adjudicated required Locke to fence them off from public life. Judaism, says Mendelssohn,

      ... does not claim to be a 'revealed religion,' as this term is
    commonly understood.... Revealed religion is one thing, revealed
    legislation, another. The voice that was heard at Sinai on that
    great day did not proclaim, 'I am the Eternal, your God, the
    necessary autonomous Being, omnipotent and omniscient, who rewards
    men in a future life according to their deeds.' This is the
    universal religion of mankind, not Judaism; and this kind of
    universal religion--without which man can become neither virtuous
    nor happy--was not and, in fact, could not have been revealed at
    Sinai. For who could have needed the sound of thunder and the blast
    of trumpets to become convinced of the validity of these eternal
    verities? (68-69)

We might quibble that this supposedly trans-cultural Enlightenment Deism in fact imports Greek philosophical and Christian religious ideas. But to do so would be to miss Mendelssohn's point. The importance of this passage is that Judaism turns out to be legislation, not religion. Thus the vision of the first half of Jerusalem, in which state and religion move hand in glove--the glove having no money or autonomy--turns out not to apply to Judaism. Judaism, as a revealed legislation, will have its freedom by not competing with the true religion, Enlightenment Deism.

This argument goes a long way towards assuaging our above worries that Judaism, as a this-worldly practice, does not fit the model of religion assumed by Locke. If Mendelssohn would like to reserve the name "religion" for universalistic belief, while thinking of Judaism as a particularistic practice, we might shrug our shoulders and go along. After all, what matters the name if we have civic space to continue our ancient traditions in peace?

However, this solution lasts barely longer than a page. While criticizing Locke in the first half of Jerusalem, Mendelssohn shared a vision of life in which action and conviction go together. Now, in the second half of Jerusalem, just a page after the previous quote, he locates this holism proudly within Judaism itself:

      Although the Divine Book which we received through Moses is
    essentially a book of laws, containing ordinances, rules of conduct,
    and prescriptions, it also includes, as is well known, an
    inexhaustible treasure of rational truths and religious precept.
    They are so inseparably intertwined with the laws as to form an
    indivisible whole. All laws refer to, or are based upon, eternal
    verities, or remind us of them, or induce us to ponder them. Hence
    our rabbis rightfully said that 'Laws are related to doctrines as
    the body is to the soul.' (70-71, emphases added)

Barely a page after finding space for Judaism to co-exist with Deism, Mendelssohn has closed that space right up again. For if the truths and the laws form an integral whole, the state need not tolerate them if it disagrees with them, since it retains undisputed authority over what actions are permissible. Mendelssohn has just given away the store.

Mendelssohn apparently does not realize that he has just given away the store, because he promptly goes on to explain proudly how the various religious laws which the Gentiles find primitive, corporeal, silly, etc., actually are symbols of higher truths and principles. But what he is now arguing for is an autonomous way of life which could quite easily be at variance with the state. Carried along by his enthusiasm for the ancient synthesis, he concludes his discussion of it by saying, "State and religion in this original constitution were not united but identical, not joined together but one and the same" (99). This is stirring stuff, but how then can the Prussian authorities of 1783 possibly tolerate this religion? It would be like tolerating the establishment of foreign rule on its soil.

Sure enough, Mendelssohn suddenly remembers that he is a guest in Germany, and suddenly realizes that he should be pleading humbly for tolerance, not glorying in a self-sufficient synthesis of thought and legislation. The Jews of Germany, as guests, are not self-sufficient--they need the toleration of the authorities to persist; they desire political emancipation to take part fully in society. Mendelssohn set out in Jerusalem to argue for that emancipation, for Jewish participation in society as equals. Instead, he has described a hidden shadow government. The rest of Jerusalem, then, consists of Mendelssohn scrambling desperately to argue for toleration and emancipation on any grounds he can.

The last pages of the book, to me, have a strong air of pathos. Mendelssohn is three years from death, and he seems somehow to know that. (For that matter, the Jews of Germany are 150 years from extermination, and I can't read those last pages without having that in mind as well.) Mendelssohn knows that he has the ear of the powerful in his society, that this is his last, best chance to change minds. And yet he has boxed himself into a corner. He proudly disdained Locke's firewalls in favor of a holism which, indeed, is truer to Judaism's kind of religion than Locke's Christianity. But now he needs something, anything, to get toleration. So he turns to--Locke's internal consistency argument asking Christians to behave like Christ himself:

      Carefully analyzed, all [Jesus] said and did is in complete
    harmony with Scripture as well as with [rabbinic] tradition....
    [Thus] you, my brothers and fellowmen, who are followers of the
    teachings of Jesus, how can you blame us for doing what the founder
    of your religion himself has done and sanctioned by his authority?
    Can you seriously believe that you cannot reciprocate our love as
    citizens and associate yourselves with us for civic purposes as long
    as we are outwardly distinguished from you by our ceremonial law, do
    not eat with you, or do not marry you? As far as we can see, the
    founder of your religion himself would not have done these things,
    or have permitted us to do them either. (106)

Next he appeals to--the need for conscience in religion: "We cannot forsake the law in good conscience--and without a conscience of what use would fellow citizens be to you?" (107). Next he raises the issue of--the diversity of nations:

      [You may ask,] 'But how, then, can the prophecy be fulfilled that
    some day there will be only one shepherd and one flock?'
      Dear brothers, you are well-meaning. But do not let yourselves be
    deceived! To belong to this omnipresent shepherd, it is not
    necessary for the entire flock to graze on one pasture or to enter
    and leave the master's house through just one door. (107)

And finally, after fighting off the idea of a synthesis of all faiths in a universal creed--which we thought Mendelssohn himself was advocating in the first half of Jerusalem--he concludes by saying:

    [A] union of faiths is not tolerance. It is the very opposite. For
    the sake of your happiness and ours, do not use your powerful
    prestige to give the force of law to some eternal truth that is
    immaterial to civic well-being; do not transform some religious
    doctrine to which the state should be indifferent into a statute of
    the land! Concentrate on what men should or should not do.... (109)

In other words, in the end all Mendelssohn has to fall back on is Locke's argument about government limiting itself to the purposes for which it was founded: establish and defend "civic well-being," concentrate on what men should or should not do, and be "indifferent" to matters of belief. Mendelssohn closes by bringing together the Christian consistency argument together with the distinct purposes argument--he cites the New Testament (!) about rendering unto Caesar what is Caesar's and unto God what is God's (110). The last words in the book, are simply un-argued exhortations: "Love truth! Love peace!" In the end, that's all Mendelssohn has to go on. In the face of political trends 150 years later, it proved a slender reed indeed.

What is the lesson of this morality play? Mendelssohn disdained Locke's formulation because he found the religious vision inconsonant with his own. But he came back to Locke's arguments because, in the end, the strength of Locke's conception is not the vision of religion but the vision of government. In the final section, I will offer some more Jewish reflections--now mine, not Mendelssohn's--on how this insight helps us conceive of the relation between church and state in America and in Israel.

III

I have depicted American Jews as valuing the holism of Judaism while at the same time appreciating the protection of the First Amendment. If Mendelssohn's formulation won't work, do we have anything more to go on? Or are we left depending on the kindness of Anglicans?

The first thing to say is that America is crucially different from 18th century Prussia (and, for that matter, 17th century England) in that here Jews are not guests. (17) Jews have been present in the land which became America since long before the founding of the United States, and, despite intolerance and exclusion of various degrees and kinds, have participated in the life of the nation at all times and in all ways. Thus we need not plead to belong as Mendelssohn must--we do belong. What goes along with this is that, despite the appearance that Jewish holism is impossible under a regime of church-state separation which stems from an Anglican vision, in fact Jews are full participants in the ongoing discussion about what the line between church and state should be. We are not passive; our vision is in view along with others, and our influence is reflected in the way the issue plays out in contemporary discourse. When we are confronted with an excess of religious holism--such as Judge Roy Moore's placement of the Ten Commandments in the Alabama Supreme Court building not long ago, or President Bush's ongoing attempt to secure federal funding for faith-based charities--we can both recognize its appeal and point out its inappropriateness in a nation where, in effect, everyone is a minority. (18)

In addition, Locke's is not the only possible argument for toleration. Walzer identifies five attitudes toward toleration--resignation, indifference, stoicism, curiosity, and enthusiasm--each of which could underwrite a distinct argument for the practice of separation of church and state. (19) Times change, and the uses of political principles can change too, beyond the limitations of their genesis. Today's practice of toleration in America seems to me primarily prudential and reciprocal. We may often consider other people's religious practice--or lack of it--as bad for them, but we let them be in the hopes that they will let us be, and in the interests of civil peace. If anything, Judaism can provide a model here of how a religion can perpetuate itself, as Judaism has for 25 centuries, without political hegemony.

In short, though the religious space we're guaranteed is Protestant-shaped, it is in fact adaptable to a more holistic form of religion, so long as that religion stays within the confines of civil law. In Walzer's formulation, and in my worries, Judaism is the passive object of the verb "protestantize." But it can also be an active, dynamic subject, adapting itself to conditions as it always has, glad that in America, as it happens, conditions are unusually good. To continue the metaphor, we can contribute to the discussion about where the wall should be located, both to secure its existence and to allow ourselves the space to grow as we see fit.

To be sure, this will require some sacrifice of holism; for example, we must forgo (pace the Lubavitchers) public lighting of Hanukah menorot. And so we must ask: What if one could live a life fully in accord with the holism Judaism had in Biblical times, of which Mendelssohn is so proud? Surely that would be appealing, even compelling. Shouldn't we all move to Israel in order to participate in that vision, leaving the modern-day Anglicans to their own devices?

The problem is that religious toleration is a requirement even in Israel. For there Jews are in charge, and yet find themselves asking whether they must be tolerant of others. In America, where effectively no one is a majority, toleration is a matter of prudence; in Israel it's a matter of justice. As I noted above, I think Israel has an exemplary record with regard to the religious freedom of the non-Jews under its sovereignty. (20) Such toleration follows easily from the notion of the covenant--we don't expect anyone else to be Jewish.

But what of toleration of Jewish diversity in Israel? There are, to be sure, sources of support for toleration within the tradition. One that's often given is the famous comment, elu v'elu divrei Elohim hayyim ("these and these [are both] the words of the living God"). (21) However, the specific context in which that line appears is a Halakhic dispute, and the argument could be made that the principle of elu v'elu must be limited to that context--we tolerate disagreements within the Halakhic tradition, but those outside the tradition are still in the wrong. (22) So that by itself won't guarantee tolerance of Jewish difference.

What will? I return to the morality play enacted by Jerusalem. Mendelssohn began by haughtily dismissing the diminished role Locke allows religion; he ended by pleading in Locke's own terms that government should stick to its purposes. What do we learn from this? Locke presents his argument as turning on the idea that conscience is necessary for religion, and thus the civil sanctions which government can bring against non-believers are out of place. In line with this, we wondered above whether a view of religion incompatible with Locke's would undermine the principle of separation. We thought, in short, that it was Locke's view of religion which powered his argument. What we learn from the collapse of Mendelssohn's attempt to establish a more holistic view, however, is that the real strength of Locke's conception is not his view of religion, but his view of government. That is, though the Letter goes on and on about conscience, the real key to Locke's view is contained in the brief argument that government is meant for the satisfaction of the citizens' bodily needs (47-48). (23) Teleology--the invocation of purpose--has a bad philosophical name these days, but perhaps in political philosophy it remains necessary. While it may make no sense to say that the evolutionary purpose of the thumb is to grasp tools, it does make sense to say that people come together and remain in political societies for the purpose of their physical and material flourishing, not in order to enforce religious conformity. Though the religious purpose of the Jewish nation may be more than this, the political purpose of the state of Israel is not. (24)

Though it emerges on this analysis as secondary in importance, Locke's argument based on the role of conscience in religion is still instructive for Israel. After all, the Israeli situation is in fact directly parallel to Locke's historical context, where the immediate issue is toleration of difference within Christianity (in fact within Protestantism alone). Locke's first argument for separation, concerning the indispensability of conscience, can be found in Jewish sources too. One doesn't really get credit for a mitzvah unless one does it autonomously, with full knowledge and kavvanah. Locke's second argument, distinguishing what's properly the purview of the civil magistrate and what's reserved for religion, should have force as well. We must distinguish within Jewish law those parts relevant to civil order and those not. Thus, for example, the Sixth Commandment should indeed yield a civil law against murder, but the Fourth Commandment should not yield Sabbath police. That this line needs constant vigilance and redefinition does not argue for its non-existence.

There is, to be sure, a strain of Judaism that would reject the conscience argument. This line of thought holds that proper performance of mitzvot alone, regardless of kavvanah, by all Jews, will bring the Messiah. There is in some contemporary Jews, too, a romantic longing for the holism of ancient Israel, in which religious and civil law were one and the same. However, I would like to argue that most of Judaism as we now understand and practice it was in fact developed in the Talmudic period, long after political sovereignty had been lost. At that time and in that context, voluntary compliance was all there was. To now impose rules developed in an apolitical context as civil law would constitute abuse of those rules as well as of those subject to them. By the same token, to argue that kavvanah is irrelevant today, as it was when Biblical law was the law of the land, is to miss out on the real genius of rabbinic legislation, which makes possible meaningful spirituality via voluntary compliance with Halakhah. Performance of mitzvot out of fear of civil sanctions is not what will bring the Messiah.

I began with Andrew Sullivan's call for an Islamic Locke; I close with the hope that there will never be a need for a Jewish one.

Notes

1. References will be to the Library of Liberal Arts edition of the Letter, edited by Patrick Romanell, (Indianapolis: Bobbs Merrill), 1950, and will be given in the text.

2. A good place to start is the collection John Locke, A Letter Concerning Toleration in Focus, ed. John Horton & Susan Mendus, (New York: Routledge), 1991, several essays of which will be cited below.

3. It's not clear what he's referring to as place--possibly the orientation of prayer towards the Temple, possibly the idea of Jerusalem's being a holy city. He may also be thinking of the proscriptions in Deuteronomy of any sacrifice outside of the Temple.

4. See Cranston, Maurice, "John Locke and the Case for Toleration," in Horton & Mendus, 82.

5. It's true that the second half of the Aleinu hymn pines for the day when all peoples are monotheistic, but that's a far cry from hoping all peoples accept Halakhah. It's also true that, according to Zechariah 14:16, one of the markers of the arrival of messianic times will be that all the nations celebrate Sukkot, but this seems to me to say more about Sukkot than universalism--of all the Jewish holidays, Sukkot, the celebration of the harvest, is the least particularistic.

6. To be sure, the record is not so good for other forms of treatment of non-Jews in Israel, but this sort of discrimination is ethnic/political and not religious. I will address toleration of difference within Judaism below.

7. Waldron, Jeremy, "Locke: Toleration and the Rationality of Persecution," in Horton & Mendus, 116-118.

8. Mendus, Susan, "Locke: Toleration, Morality, and Rationality," in Horton & Mendus, 152-153.

9. Waldron, 103-105.

10. I'm thinking here of what Maimonides says in Mishneh Torah, Hilkhot De'ot, about how the mitzvot produce proper belief states in the practitioner.

11. I live in a small town in Maine where there are few Jews but much curiosity about Judaism, and I am often invited to classes and church groups to tell about my "faith." But I always begin by explaining patiently that, although Jews surely do have beliefs of various sorts, Judaism itself is not well-described as a faith, but rather as a tradition or a practice. Locke's limitation of religion to faith leaves Judaism in a somewhat ambiguous position.

12. Locke surely means Roman Catholicism here, but he nobly forbears to mention it specifically, thus graciously giving English Catholics the benefit of the doubt; such forbearance and grace were unusual in Anglican mentions of Catholicism at this time, including Locke's own earlier writings.

13. The same might hold for Locke's political philosophy, also so influential for the founding documents and institutions of the United States. A key part of the Second Treatise is a defense of property rights; indeed the whole construction can be seen as set up to protect those rights. Does this affect us now? People say there's too much money in politics, and usually they mean campaign finance. But maybe our political system's obsession with money goes all the way down? Locke's interpretation of the social contract as an agreement to a system of protecting property rights gives rise to a different system of government than does Rousseau's interpretation of the social contract as a joining together of individuals to become part of a higher social unit. The situation is similar, it seems to me, with church and state: The founding conception of the principle can be expected to continue to influence the practice stemming from the principle. If Locke's argument concerning the separation of church and state assumes a certain kind of religiosity, a certain conception of the distinction between body and soul, and so on, can those who do not share those assumptions be comfortable with it?

14. Walzer, Michael, On Toleration, (New Haven: Yale), 1997, 67.

15. Mendelssohn, Moses, Jerusalem, trans. Alfred Jospe, (New York: Schocken Books), 1969. Page references will be given in the text.

16. Mendelssohn introduces his discussion of Locke with an apparent zinger: "(I)f words could have talked the restless minds of his age out of their intolerance, the good Locke himself would not have found it necessary to go into exile quite so frequently" (16). However, not only should a Jew take care before being snippy about someone else's having to go into exile, but Locke could also point out that, having finally written the Letter in 1685 in Holland, during his second bout of exile, he in fact never had to go into exile again.

17. I am grateful here for discussion of this matter with an adult education group at Temple Beth El, Portland, ME, March, 2002

18. See Walzer, 89.

19. Walzer, 10-11.

20. As Walzer points out (40-43), the tolerance of non-Jews in Israel is closer to the Ottoman millet system (for obvious historical reasons) than to Western forms of tolerance based on individual rights.

21. Babylonian Talmud, Erubin 13b.

22. I first encountered this argument from Rabbi Ya'akov Rosenberg.

23. It could be argued, then, that, despite Locke's attempts to defend it with the Second, Third, and Fourth Letters, the Letter would not have succeeded in its purpose had not Locke explained this conception of government more fully in the Second Treatise, and it is there that the original Letter finds its best defense.

24. There is a lesson to be learned from the controversy over head-scarves in France. Proponents of the ban see themselves as defending a French identity which stands apart from religion. But this seems, by the lights of Locke and other social contract theorists, an inappropriate use of government. Governments are not instituted in order to defend cultural identities but to provide material protection; cultural identity is then able to grow naturally and in peace. To define "Frenchness" as bareheaded-ness, and to invoke governmental authority to enforce it, is to belittle both.

The author wishes to thank Lenn Goodman for encouragement and for a venue to present his thoughts about Locke--at the the Academy of Jewish Philosophy session at the American Philosophical Association (Eastern Division) conference, Washington, DC, December 2003--and Robert K. Morrison for research assistance.