Religious Freedom in Early Modern Germany: Theology, Philosophy, and Legal Casuistry

It is sometimes presumed that early modern religious conflict can be understood (and judged) on the basis of philosophical principles of religious freedom that display the irrationality of such conflict. Some derive these principles from Lockean and Kantian doctrines purporting to show that religions can be a matter of free rational choice and mutual toleration. Others derive them from Thomistic and communitarian traditions that purport to show that religions can learn mutual toleration by viewing each other as independent virtue-realizing communities. In this article I provide some historical reasons for thinking that conflicting forms of early modern religious identity were embedded in religious cultures whose force was such that they swept such philosophical principles along with them, giving rise to partisan philosophies that were themselves incommensurate and incapable of resolving the conflicts. This incommensurateness applied to the principles of religious freedom themselves, which appeared in rival forms. In the German empire a culture of religious pluralism emerged not from philosophy but from the institutions and practices of public law, during the period between the treaties of Augsburg (1555) and Osnabrück (1648). I argue that this juridical culture was not grounded in a particular philosophy or ideology but arose instead from the institutional habitus of public law under the exigencies of polarized religious conflict, and that it was issued not in principles of religious freedom but in a casuistry for resolving the conflict between such principles.