1. Audre Lorde, Sister Outsider (Trumansburg, NY: Crossing Press, 1984), 115 and 111. The epigraphs are from “Age, Race, Class and Sex: Women Redefining Difference” and “The Master's Tools Will Never Dismantle the Master's House,” respectively.

2. John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), esp. chap. 4, sections 33-35, and “Justice as Fairness: Political Not Metaphysical,”Philosophy and Public Affairs 14 (Summer 1985), 308-322; Michael Walzer, Spheres of Justice (New York: Basic Books, 1983) and “Liberalism and the Art of Separation,”Political Theory 12 (August 1984), 315-330; Richard Rorty, “On Ethnocentrism: A Reply to Clifford Geertz,”Michigan Quarterly Review 25 (Summer 1986), 525-534.

3. There are, of course, notable exceptions. See, for example, the collection of essays by Herbert Marcuse, Barrington Moore, and Robert Paul Wolff in A Critique of Pure Tolerance (Boston: Beacon, 1965). More recently, Thomas L. Dumm has argued that toleration might be seen as linked to confinement in Quaker practice and thus connected to the disciplining of social subjects; see his Democracy and Punishment (Madison: University of Wisconsin Press, 1987).

4. The classic example here is the question of tolerating the intolerant, addressed by Rawls in A Theory of Justice, section 35; but see also the essays in A Critique of Pure Tolerance.

5. Rawls, “Justice as Fairness,” 225, see also 228-231, 249. The exemplary status accorded religious toleration by liberal theory is, of course, not a recent accretion. It is figured in a similar fashion by John Stuart Mill in the first chapter of On Liberty.

6. Rawls, A Theory of Justice, 206.

7. Ibid., 205-206.

8. John Locke, published by Philip Abrams (ed.) as Two Tracts on Government (Cambridge: Cambridge University Press, 1967), hereafter noted as Tracts. For an indication of the range of interpretations advanced to explain their relation to Locke's later work, the following may be useful: Richard I. Aaron, John Locke (Oxford: Clarendon Press, 1937), 3-5; John W. Gough, John Locke's Political Philosophy (Oxford: Clarendon Press, 1950), chap. VII; and W. Von Leyden, John Locke: Essays on the Law of Nature (Oxford: Clarendon Press, 1954), 21-30.

9. More recent critical discussion has begun to engage this issue through an emphasis on the secular rather than religious character of the various treatments of toleration in Locke's texts. See Robert P. Kraynek, “John Locke: From Absolutism to Toleration,”American Political Science Review 74 (March 1980), 53-69; George Windstrup, “Freedom and Authority: The Ancient Faith of Locke's Letter on Toleration,”Review of Politics 44 (April 1982), 242-265; and Sanford Kessler, “John Locke's Legacy of Religious Freedom,”Polity 17 (Spring 1985), 484-503.

10. The phrase is taken from Herschel Baker's work treating the demise of the medieval `axiom of knowledge' in the early modern period, Wars of Truth: Studies in the Decay of Christian Humanism (Gloucester, MA: Peter Smith, 1969).

11. The criterion that Locke forwards in the Tracts on this point is vague: the magistrate is to determine such things for “decency and order,” notions the indeterminacy of which Locke readily conceded to “depend wholly upon the opinions and fancies of men” (Tracts, 146).

12. See John Locke, A Letter Concerning Toleration (Indianapolis and New York: Bobbs-Merrill, 1955), hereafter noted as Letter. The line that Locke draws here (see esp. 50-52) manages to exclude Catholics from toleration by virtue of their allegiance to a `foreign prince,' that is, the Pope, as well as for that church's insistence on the right to excommunicate political rulers. (Elizabeth I had, in fact, been excommunicated by Pope Pius V, who also relieved her subjects from the duty of allegiance to her.)

13. The term received wide circulation, but provided the title for Edward Bagshaw's pamphlet of 1660 (The Great Question Concerning Things Indifferent in Religious Worship), which rested principally on Scriptural arguments to defend the principle of `liberty of conscience' as the ground for toleration. Locke's English Tract is a detailed refutation of Bagshaw's essay. For a general overview of what was at issue in this dispute, see Philip Abrams's introductory essays prefaced to his edition of the Tracts, esp. 17-25 and 36-49, as well as his bibliography on the topic included as Appendix II (b), 250-254.

14. Again, see Abrams's introductory essays, 36. On the range of shared assumptions between Locke and Bagshaw, see 17-18.

15. Tracts, p. 227. Civil power in this view might reiterate the commands and prohibitions of a higher law, as was understood to be the case for laws regarding theft; but this did not impose a new obligation so much as reinforce an existing one (p. 223).

16. Tracts, 214.

17. Ibid., 217.

18. Tracts, in “Letter to S. H.” printed by Abrams as Appendix I (a), 243.

19. Tracts, 229.

20. Ibid., 138. This position is reiterated in Locke's Essay Concerning Human Understanding, I, chap. 3, no. 8.

21. Tracts, 138.

22. Ibid., 226-227.

23. I take the phrase from Martha Minow's “Learning to Live with the Dilemma of Difference: Bilingual and Special Education,” in Law and Contemporary Problems (Spring 1985), 157; and her more extended treatment of the issue of difference in the Foreword to the Supreme Court 1986 term, “Justice Engendered,”Harvard Law Review 101 (1987), 10-95. In many respects, my own thinking has been inspired by this work as well as numerous other contemporary interrogations of the meaning of `difference,' although the present essay seeks to raise questions about the possibility of adjudicating `difference' through law as a means of resolving such questions in the contemporary context.

24. Tracts, 120-121. This was not only a matter of sectarian politics from the recent civil wars, for a rising of the Fifth Monarchists (to which Locke alludes in the remainder of this passage) had occurred in London in January 1660.

25. Tracts, 210.

26. Ibid., 140.

27. Ibid., 121.

28. I use `articulation' here in a sense akin to that of Ernesto Laclau and Chantal Mouffe in their recent Hegemony and Socialist Strategy (London: Verso, 1985); that is, as a “discursive structure” that is “not merely a `cognitive' or `contemplative' entity” but an “articulatory practice which constitutes and organizes social relations” (p. 96). In borrowing this terminology, I mean to emphasize that religious conflicts of the period were not simply “differences of opinion” or belief over the right way to heaven, not merely groundless intellectual constructs whose divisions engaged `passions' rather than `reason' over controversial readings of Scripture. That they can be read this way is perhaps testimony to the success of the civil discourse of the period, to which Locke's work was a significant contribution. In referring to them, however, as `articulations,' what I want to point to is the ways in which their divisions in the reading of Scripture operated to constitute sectarian practices and hence socially to embody differential expressions of identity, which were framed in terms of righteous versus corrupt practices of worship.

29. Tracts, 210.

30. Ibid., 161-162

31. See the Oxford English Dictionary (Oxford, 1933).

32. Ibid.

33. Tracts, 140.

34. Ibid., 166-167.

35. See, for example, the English Tract (p. 139), which asks: “If outward indifferent things be things of spiritual concernment I wish our author [Bagshaw] would do us the courtesy to show us the bounds of each and tell us where civil things end and spiritual begin.”

36. “Of the Conduct of the Understanding,” referred to by Locke in a letter to William Molyneux (10 April 1697), was written for inclusion in the fourth edition of the Essay Concerning Human Understanding. Edited by Thomas Fowler and augmented with an introductory essay and notes, this was published as Locke's Conduct of the Understanding (New York: Burt Franklin, 1882) and reissued by Lenox Hill in facsimile in 1971. The phrase used here appears in section XIII, “Observation,” 36.

37. Letter, 16-17.

38. Ibid., 36.

39. Ibid., 36.

40. This is not to suggest that moral questions framed by Locke as `practical maxims' are not relevant to political order. To the contrary, of special civil concern are precisely those moral rules which concern the mutual relations of human agents in society, though again the state is interested only in those that are related to the prohibition of harm (Letter, 42, 46-49).

41. Letter, 24.

42. Ibid., 18, 29-30, and 31-32, respectively.

43. Ibid., 17.

44. Ibid., 39.

45. Ibid.

46. Ibid.

47. Ibid., 40.

48. See, for instance, Locke's similar treatment in the Letter (p. 39) of a civil command to wash infants in contrast to a requirement of baptism:

[L]et it be granted that the washing of an infant with water is in itself an indifferent thing; let it be granted also that the magistrate understand such washing to be profitable to the curing or preventing of any disease the children are subject to, and esteem the matter weighty enough to be taken care of by a law. In that case he may order it to be done. But will anyone therefore say that a magistrate has the same right to ordain by law that all children shall be baptized by priests in the sacred font in order to the purification of their souls? The extreme difference is visible to everyone.

49. Although concerned more with Locke's secularism as such rather than its epistemological aspect, the work of Professor Kraynek (nt. 9 here) tends toward a parallel interpretation.

50. Letter, 17.

51. See, for example, Amy Gutmann's generally balanced presentation in “Communitarian Critics of Liberalism,”Philosophy and Public Affairs 14 (Summer 1985), 308-322. In response to the communitarian claim that revitalizing `our traditions' is a guard against rather than an invitation to intolerance, Gutmann questions what is meant by “the sort of civic republicanism `implicit within our tradition'.” Certainly, she observes,

not the mainstream of our tradition that excluded women and minorities, and repressed most significant deviations from white, Protestant morality in the name of the common good. We have little reason to doubt that a liberal politics of rights is morally better than that kind of republicanism. But if Sandel is arguing that when members of a society have settled roots and established traditions, they will tolerate the speech, religion, sexual, and associational preferences of minorities, then history simply does not support his optimism. A great deal of intolerance has come from societies of selves so `confidently situated' that they were sure repression would serve a higher cause. (P. 319; the reference is to Michael Sandel's “Morality and the Liberal Ideal,”New Republic, 7 May 1984, 15-17)

See also H. N. Hirsch, “The Threnody of Liberalism: Constitutional Liberty and the Renewal of Community,”Political Theory 14 (August 1986), 423-449.

52. For a critical discussion of the Indian practice of suttee, see Gayatri Chakravorty Spivak, “Can the Sub-Altern Speak?” in Marxism and the Interpretation of Culture, Cary Nelson and Lawrence Grossberg, eds. (Urbana: University of Illinois Press, 1988), 271-313.

53. For an illuminating discussion related to this, on the character of legal reasoning around the issue of the right-bearing subject, see Gary Peller, “The Metaphysics of American Law,”California Law Review 73 (1985), 1151-1290, esp. the critical analysis of legal realism, 1219-1258. The emergence of culture as a politically contested terrain in U.S. domestic politics is perhaps most clear in contemporary debates over education and `cultural literacy,' debates in which the question of who or what is `harmed' by the cultural content of humanities curricula is central. Compare, for example, the perspectives advanced by Allan Bloom in The Closing of the American Mind (New York: Simon & Schuster, 1987) and E. D. Hirsch, Jr. in Cultural Literacy (Boston: Houghton Mifflin, 1987) to the essays presented in the Graywolf Annual Five, Multi-Cultural Literacy, Rick Simonson and Scott Walker, eds. (Saint Paul, MN: Graywolf Press, 1988).

54. Catherine MacKinnon, “Feminism, Marxism, Method, and the State: An Agenda for Theory,”Signs 7 (Spring 1982), 515-544.

55. See, for example, Locke's characterization of the social world in Two Treatises, Peter Laslett, ed. (Cambridge: Cambridge University Press, 1963); II, 156-157 especially, where Locke's concern is for the “uncertainty and variableness of human affairs”:

Things of this World are in so constant a Flux, that nothing remains long in the same state. Thus People, Riches, Trade, Power, change their Stations; flourishing mighty Cities come to ruine, and prove in time neglected desolate Corners, whilst other unfrequented places grow into populous Countries, filled with Wealth and inhabitants. (p. 157)

Interestingly, Locke's recourse in the face of such uncertainty is a reliance on the prerogative power of the Executive.

Difference,Diversity,and the Limits of Toleration

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