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Toleration
Although toleration is clearly one of the virtues that goes hand in hand with respect for rights, it is seldom posited as a duty correlative with some right to be tolerated. At most one may find it mentioned in the context of the human personality towards which more clear cut rights can lead. Thus the definition of education in Article 13 of the International Covenant on Economic, Social and Cultural Rights justifies the right to education in part on the grounds that it should promote ‘understanding, tolerance and friendship’. In fact the duty of tolerance might best be seen as a precursor to the full acceptance of human rights. The problem is that calling for tolerance, or toleration of someone’s activities or beliefs, seems to imply that one would have any right whatsoever not to respect their freedom in the relevant area. This point is illustrated by the work of John Locke. One of the earliest seminal rights theorists, and a leading influence on the framers of the US Constitution, he advocated human rights, and defended them staunchly in works like the Second Treatise on Civil Government (1690), but with regard to religious freedom he advocated only tolerance, in his famous Letters on Toleration (1689–92), and even this got him into some degree of trouble as being thought too radical. To many thinkers of Locke’s period religious conflict was so dangerous that the state was naturally regarded as entitled to legislate about religious observance, not as an institution likely to know better the truths of religion, but because of the political danger of religious pluralism. Indeed, even in the Letters on Toleration, Locke advocated that toleration not be extended to atheists because, not believing in God, they could not be trusted to keep their promises. The difference between toleration and the recognition of a right, therefore, is that the former is, in some sense, optional, or at least capable of being ‘unaffordable’ in some contexts. There is a strand of rights thinking that regards many human rights as luxuries affordable only in stable and affluent societies, although such a theory mistakes the very nature of rights.
Toleration Act
The Toleration Act of 1689 might be seen as one of the first steps towards recognizing basic human rights in Great Britain, as it repealed a series of legislative bars on the freedom of religion established in the wake of the Reformation. By the late 17th century it became increasingly obvious that not all Protestant aspirations could be held within even a broad Anglican Church, while the Protestant settlement of 1689 (see Bill of Rights (UK)), assuaged fears of a Catholic take-over of the English crown. Given these two factors, the establishment moved away from the pursuit of religious uniformity and allowed a limited degree of freedom of worship for the first time in English history. The freedom was limited, and, of course, did not extend to disestablishing the Church of England. Nevertheless most, though not all, branches of the nonconformist faith were allowed to operate their own churches and to ordain ministers, though the churches had to remain permanently unlocked, for fear of unspecified deviant behaviour going on behind closed doors. Some offshoots felt to be too far from the mainstream, such as Unitarians, were still banned. Religious identity remained politically vitally important however, and all non-members of the Anglican Church were barred from holding any public office.
In the USA the state of New Hampshire passed its own version of the Toleration Act in 1819; despite the ban on established churches as far as the federal government was concerned, which was contained in the Bill of Rights (see Bill of Rights (USA)), several of the US states continued to favour one faith over others.
Torture
Torture is the deliberate infliction of physical or mental suffering, and is normally thought of as being perpetrated by some agency of the state. The neutrality of this definition is necessitated because there are two rather separate aspects to torture historically, and correspondingly two different theoretical objections to it. In popular fiction torture is most often associated with the idea of hurting someone to make them confess to a crime, or to extract information which the state needs or wants. But torture can also cover the use of pain and suffering as a punishment in itself. The distinction is important because, historically, torture in the first sense has more often been disapproved of than in its second sense. Torture, often referred to as judicial torture, to make a suspect confess to a crime or to gain information about, for example, a suspect’s accomplices, though recently used, has, historically, equally frequently been objected to and banned. Under the Roman Republic torture could only be used on slaves, and even when, under the Empire, it was allowed on citizens, its use was restricted to cases of suspected treason. In fact this limitation to treason, the most heinous of crimes in many penal codes, was usual.
Among the most dramatic of historic uses of torture, by the Inquisition in their attempts to discover and eliminate heresy, gained its legitimacy during the 13th century when the Roman use of torture in treason cases was incorporated into canon law, heresy being seen as a directly equivalent crime. Torture as a legitimate part of canon law was not abolished until a Papal Bull of 1816. Only later, and following this precedent, did most continental European systems adopt torture, and, in adopting it, often expand the range of suspected crimes for which it could be applied. By the early modern era torture was legitimated widely in Europe, though particularly so in the Italian and Germanic states. Torture was not outlawed in these states until various dates during the 18th century: the French abolished it at the Revolution, for example. Torture lingered on as a legitimate weapon of state in some places, being abolished in Naples as late as 1860.
English common law was never comfortable with judicial torture, and although it was practised from time to time, this was almost always under special prerogative writs from the monarch, and, again, only in cases of treason. The well known use of torture under Elizabeth I is an example of both these points. As early as 1628 the English judiciary declared torture illegal when it was proposed to use it on the assassin of the Duke of Buckingham to find the identity of his accomplices. The theoretical argument against torture is a combination of a due process argument, the state should not be allowed to manufacture evidence, and a straightforward humanitarian objection to the infliction of pain on possibly innocent people. This is why the concept becomes complex, because humanitarian objections to the infliction of pain on guilty people are much more recent in origin. Many forms of punishment depended primarily on the infliction of pain, as with flogging, were indifferent to the incidental infliction of pain, as with branding, or used pain to add further emphasis to the horror of the punishment for deterrent effects, as with the classically horrifying forms of execution used for some crimes. It is really only in the 20th century that sensitivities have developed to the point where even the punishment of the guilty is regarded as not justifying any avoidable physical or mental suffering, although the beginning of this trend is found in the 18th century with doctrines like the ban on cruel and unusual punishment in the US Constitution.