Many Malaysians were disappointed when the Federal Court ruled that apostasy matters should be decided by the Shariah Court and not the Civil Court, and dismissed the application by four Sarawakians for a court order to direct the National Registration Department (NRD) to recognize and register them as Christians. [Re: Federal Court defers to Shariah courts in Sarawak apostasy cases]
Several church leaders have called for peaceful acceptance of the Court judgment as the law should be upheld and peace maintained in our society. Hopefully, Parliament will table amendments to ensure that the law is more just and equitable in matters of religious liberty for all citizens.
We should not miss a more fundamental concern in the Court controversy, that is, religious liberty has become a tenuous legacy for Malaysian democracy with the introduction of new shariah-compliant laws which authorize the state bureaucracy to extend its powers to regulate the private morality and religious activities of its citizens. It has become painfully clear that any intervention by the government inevitably restricts the religious liberty of citizens.
Vigilance is the price of freedom. As such, institutions of civil society must work together with an independent media to ensure that the Civil Court upholds the Constitutional guarantees for fundamental liberties, and that the government will implement internationally recognized protocols to safeguard religious liberty and mutual tolerance in a plural society.
However, social activism in the face of an all-powerful and encroaching state bureaucracy is coherent and sustainable in the long term only if it is motivated by cogent arguments. If wisdom means learning from the past so that we can determine the future for ourselves, then John Locke’s writing on religious liberty should be carefully considered as he provides time-tested philosophical foundations for a limited state bureaucracy that respects the independence of religious institutions and promotes religious liberty.
For Locke, God created man for the purpose of service. But man needs protection for his life, liberty and property, that is, he enjoys natural rights to these goods in order that he may serve society. By the same token he must also extend the same rights and protection to other men who are also required to fulfill their individual vocations. These natural rights are rights claimed on the basis of natural law, that is, God’s law prescribed to all men at creation. Since these rights are natural, they are inherent to every individual. As inalienable, they cannot be transferred or given up or forfeited.
Locke emphasizes that these rights are pre-political and cannot be lost. They are not given by the state, nor can the state take them away. To be sure, the necessity for collective protection of private property and adjudication of social conflict requires a ‘social contract’ to form a civil government. Locke emphasizes in his Second Treatise on Government that state authority, represented by the magistrate, had its origins in the social contract. However, there are limits to what humans can give away as only part of a person’s natural rights is surrendered to the state in the contract. In particular, humans are still required to discharge their pre-political (state of nature) obligations such as neighborly love, honor of truth and belief in God. Nor can humans give power that is not theirs, such as the power to kill oneself since such power belongs to God alone. /1/
In other words, since humans themselves are able to exercise limited powers, they can only transfer limited powers to the state.
The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule. The liberty of man, in society, is to be under no other legislative power, but that established, by consent, in the commonwealth; nor under the dominion of any will, or restraint of any law, but what that legislative shall enact, according to the trust put in it. . . . for a man, not having the power of his own life, cannot, by compact, or his own consent, enslave himself to any one, nor put himself under the absolute, arbitrary power of another, to take away his life, when he pleases. No body can give more power than he has himself; and he that cannot take away his own life, cannot give another power over it./2/
The contrast between Locke and Thomas Hobbes is only too clear. For Hobbes humans in the state of nature exercise unconstrained rights. Consequently they may transfer all rights and power to the state. In contrast, for Locke, since humans have limited powers themselves, they can only transfer limited power to the state. In effect, Locke provides a rationale for a limited state, while Hobbes envisages the state as the embodiment of all human rights transferred to it. Locke’s logic is compelling – His argument that limited human pre-political powers leads to a limited state and relative political and religious freedom for its citizens is encapsulated in his classic work, A Letter Concerning Toleration (1689). The letter provides a framework for peaceful coexistence among citizens with different religious convictions in the aftermath of the destructive Thirty Years War (1618-1648) and the English Civil War (1642-1651).
Locke was also keenly aware of the struggle of the church against the state after the Restoration of the monarchy. Erastianism was then the accepted ideology for the state which wanted control over ecclesiastical matters where the crown controls the cross, and the church is merely a handmaiden of the state.
State bureaucratic control has proven to be destructive for the church when the paternalistic authority of the crown emasculates the power of the clergy and suffocates spiritual initiative from the laity. Furthermore, violence is brought to bear upon any nonconformist or dissenter to royal patronage. They could be fined, have their property seized and even be thrown into prison.
Locke’s Letter was an exercise to defend freedom for the church to manage its internal affairs and to fulfill its spiritual vocation. Since the debate was directed at state religious bureaucracy, Locke naturally argued from premises that were informed by his Christian faith. The Letter gives four reasons for religious tolerance:
First, Locke challenges traditional alliance between the crown and church where common believers and the clergy submits to the crown with its implicit claim to infallibility. However, this hierarchy is unacceptable to Locke on grounds that if human knowledge remains uncertain, it is wrong for the authorities to enforce fallible truth claims and beliefs. Indeed, for Locke humans are equal precisely because each of them possesses the unique capacity to abstract knowledge from experience to form and analyze concepts. This “democratic intellect” (to adopt a felicitous phrase taken from Jeremy Waldron) may be modest, but it is sufficient for humans to apply reason to discover the existence of God and his moral requirements for humankind.
Those things that every man ought sincerely to inquire into himself, and by meditation, study, search, and his own endeavours, attain the knowledge of, cannot be looked upon as the peculiar profession of any sort of men. Princes, indeed, are born superior unto other men in power, but in nature equal. Neither the right, nor the art of ruling, does necessarily carry along with it the certain knowledge of other things; and least of all of the true religion; for if it were so, how could it come to pass that the lords of the earth should differ so vastly as they do in religious matters? /3/
Locke’s caution for epistemological humility springs from his awareness that human intellectual capacity and moral discernment is vulnerable to corruption because of vested interest. Indeed, Locke stresses that the intellectual capacity of ordinary people for attaining religious truth may turn out to be more morally reliable than “these learned disputants, these all-knowing doctors,”
…who found no easier way to that pitch of authority and dominion they have attained, than by amusing the men of business…employing the ingenious and idle in intricate disputes, about unintelligible terms, and holding them perpetually entangled in that endless labyrinth…or give defence to strange and absurd doctrines, as to guard them round about with legions of obscure, doubtful, and undefined words. /4/
Second, Locke argues for toleration as this was the example set by the Apostles. He emphasizes in his Letter Concerning Toleration,
If the Gospel and the apostles may be credited, no man can be a Christian without charity and without that faith which works, not by force, but by love…gathering them [the nations] into His Church, not armed with the sword, or other instruments of force, but prepared with the Gospel of peace and with the exemplary holiness of their conversation. /5/
Religious compulsion enforced through ecclesiastical decrees which are no more than human responses to mediated revelation is inappropriate. Locke looked to public truth arrived at through reason and logic instead of religious authority founded on dogma to provide a secure and sufficient foundation for social order. He sought to limit the power of the state to issues that are “indifferent”, that is, of no great consequence. In short, the state rightly exercises its authority in protection of life and property, but as a fallible human institution it should refrain from regulating, much less imposing religious beliefs.
Third, Locke appeals for religious toleration for pragmatic reasons. On the one hand, the recent history of England has demonstrated that coercion to compulsory uniformity only leads to social unrest. On the other hand, toleration promotes peace and prosperity. In a lengthy passage he argues that matters of faith are beyond the authority of the magistrate and that compulsion towards outward conformity only undermines sincerity which is essential for genuine faith, “the care of souls cannot belong to the civil magistrate, because his power consists only in outward force; but true and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God. And such is the nature of the understanding, that it cannot be compelled to the belief of anything by outward force.”/6/
Fourth, Locke argues for tolerance based on the rights of conscience. It was self-evident to him that genuine faith must be sincere. “It is in vain for an unbeliever to take up the outward show of another man’s profession. Faith only, and inward sincerity, are the things that procure acceptance with God.” That is to say, sincerity must accompany outward profession of truth to become an effective criterion for salvation. Locke therefore asserts that “the care of souls cannot belong to the civil magistrate, because his power consists only in outward force: but true and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God.” /7/ Locke stresses the state should respect the church as a voluntary society of men “joining themselves together of their own accord, in order to the public worshipping of God…No member of a religious society can be tied with any other bonds but what proceed from the certain expectation of eternal life. A church then is a society of members voluntarily uniting to this end.” /8/
For Locke, the right to conscience is the right to do what one judges to be one’s obligations to one’s fellow-citizens in the light of one’s religious commitment. It is granted that conscience may not be infallible, but it is often a trustworthy guide to virtue and altruism. This being the case, the Lockean argument for freedom of conscience should not be taken as an excuse for unfettered individualism. On the contrary, Locke’s argument for freedom is a premise for responsible freedom that was already an essential element of human relationships before the social contract. Obedience to one’s conscience is not an act of withdrawal from society so much as an act of freedom that empowers the believer to take the initiative to serve society.
Robert George explains that religious freedom enables members of society to organize and carry out various welfare works, including health and educational services, which effectively limits the scope of government and the power of the state. “Religion provides authority structures and, where it flourishes and is healthy, is among the key institutions of civil society providing a buffer between the individual and the state.” /9/
To conclude, one of the duties of the Court is to ensure that the state respects its limits in the ordering good society. The Court should be concerned not only with conformity to existing laws, but with upholding the requirements of natural justice from which the law draws its legitimacy and binding moral force. As such, a conscientious court would go beyond technicalities or legality (which is contestable in the recent Sarawak case on apostasy) and affirm the essential qualities of good laws, such as exemplifying right and fair reasoning, defending the common good and respecting the conscience of the individual in matters of religious liberty.
1. See William Batz, “The Historical Anthropology of John Locke,” Journal of the History of Ideas (1974), pp. 663-673.
2. John Locke, Second Treatise on Government, para. 21, 23.
3. John Locke, A Letter Concerning Toleration, published in Two Treatises of Government and A Letter Concerning Toleration, ed. Ian Shapiro (Yale UP, 2009), pp. 229-230.
4. John Locke, An Essay Concerning Human Understanding, Book 3.10.9.
5. Locke, Letter Concerning Toleration, pp. 215, 217.
6. Locke, Letter Concerning Toleration, pp. 218-219.
7. Locke, Letter Concerning Toleration, pp. 232, 219.
8. Locke, Letter Concerning Toleration, pp. 220-221.
9. Robert George, Conscience and its Enemies (ISI Books, 2013), p. 114.