The spiritualising of religion and the desacralising of law and politics

During the seventeenth century all of the major European powers were faced with the same set of problems: how to achieve religious peace and how to establish stable rule in territories containing bitterly divided religious communities. The measures that evolved to meet these problems—religious toleration being just the tip of the iceberg—would alter the disposition of the sacred and lead to the sidelining of sacrilege (together with heresy and blasphemy) within an increasingly autonomous civil domain. Unfortunately for the historian, these developments differed significantly both within the German Empire and among the other sovereign territorial states, so that there is no typical case. In order to keep my exposition manageable, I will thus focus on developments in the German states—Brandenburg-Prussia in particular—making do with just a few comparative remarks on Britain and France, acknowledging upfront the element of historical bias thus introduced.

The developments that saw the institution of religious peace within the German Empire were piecemeal, protracted, and never fully successful. Nonetheless, we can detect a pattern of development in the century that separated the Religious Peace of Augsburg of 1555 and the more permanent Peace of Westphalia in 1648, which brought an end to the Thirty Years War by declaring that henceforth all three main confessions—Catholicism, Lutheranism and Calvinism—would be recognised and tolerated under imperial law. In his account of this complex process, the German historian of church law, Martin Heckel, points to a number of key elements: the relegation of theology in favour of European public law as the key discourse in the peace negotiations; the gradual acceptance of the permanence of heresy by leading figures, even if the churches would have none of this; and, most important of all, the dropping of religious truth as a criterion for peace in the great treaties, and its replacement by a quite different kind of norm for legitimacy: namely, the attainment of social peace.[15] In making social peace the prime duty of the sovereign (as opposed to defending the faith or enforcing religious law as God’s earthly viceroy) these developments led to a profound secularisation of the political domain. Yet, as Heckel has argued, this was not a secularisation driven by some all-embracing secularist philosophy (in the manner of the French philosophes), but one carried forward by many anonymous jurists and statesmen who remained devoted Christians.[16] Far from attempting to expunge Christianity, their prime objective was to secure the survival of their own confessions in the face of wholesale religious slaughter. Yet they gradually accepted that for this to happen it would be necessary to separate the church’s pursuit of salvation from the state’s aim of worldly security.

In the case of post-Westphalian Brandenburg-Prussia, this led to a profound dual transformation of the religious and political landscape. On the one hand, there was remarkable desacralisation of politics, as jurisconsults and political philosophers attached to the court began to reconstruct the objectives of the state in quasi-Hobbesian terms; that is, in terms of maintaining external and internal security while eschewing all higher level religious and moral aims. On the other hand, there was a no less remarkable spiritualisation of religion, as the Pietists aided by important lay theologians attempted to undermine the whole idea of religious orthodoxy—that is, the idea that salvation was tied to a particular set of theological doctrines and sacramental practices—arguing instead that salvation came rather from a purely personal inner relation to God.

The manner in which this dual desacralisation of politics and spiritualisation of religion transformed the prior construction of sacrilege, heresy, and witchcraft can be seen in the writings of Christian Thomasius, professor of law at the University of Halle in the late seventeenth century, lay theologian, and jurisconsult to the Brandenburg-Prussian court. In his works attacking the legal prosecution of heresy, witchcraft and sacrilege, Thomasius argued along two convergent paths. First, in keeping with his spiritualist theology, he argued that there was no true visible church; that the true church was invisible, known by no outward doctrinal or liturgical signs, and that its members were permanently scattered across the globe. This detachment of salvation from the church removed the theological grounds of heresy and sacrilege by (in effect) denying that God was mediated by specific sacred doctrines or by sacred rituals in holy places.[17] Second, in keeping with the quasi-Hobbesian conception of politics which he had learned from his mentor Samuel Pufendorf, Thomasius argued that the state had no religious objectives and must be restricted to the ends of maintaining domestic peace and external security.[18] For this reason there should be no laws against sacrilege, heresy and witchcraft as such, unless the actions associated with them gave rise to violence or civil disorder, in which case they would be punished for that reason, and not because they profaned the community of the faithful.[19] Unlike his more famous contemporary, John Locke, Thomasius did not base his arguments for toleration on the philosophical notion of natural rights, but on the dual imperatives to spiritualise religion and desacralise the state, whose overarching goal was not personal liberty but the stable governance of multi-confessional societies.

Thomasius thus marks the moment at which, after a century and a half of religious war, the web of canon laws which had tied the political to the religious community began to be unpicked, allowing the persona of the citizen to be differentiated from that of the Christian; although even in Western Europe this moment was neither epochal nor universal. In late-seventeenth century England, religious peace was achieved in a quite different way: not by dismantling the confessional state, but by rebuilding it in a more stable, less persecutory form. This was achieved in accordance with two broad strategies. First, the Anglican church that was to be established as the state religion, was purged of enough Anglo-Catholic theology to bring back on board moderate dissenters, providing a stable religious middle ground. Second, using a combination of test acts and toleration acts, non-conforming Protestants and Catholics were excluded from office-holding in the Anglican state, while permitted freedom of private worship. While this set of strategies proved no less successful in securing religious peace than those used in Brandenburg-Prussia, its effect on the laws pertaining to heresy, witchcraft, sacrilege and blasphemy was far less dramatic and uniform. While heresy and witchcraft laws were repealed during the eighteenth century, blasphemy remained a common law crime as a means of protecting the state religion, leading it to form a new juridical series with sedition and obscenity. And it was in this form, as one of a trio of libels—obscene, seditious and blasphemous—that sacrilege maintained a kind of half-life into the modern period of English common law.