How to Defend Tolerance

This article appeared on the Library of Law and Liberty on August 24, 2017.
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In historical terms, tolerance is a relatively recent invention.  Until the 16th and 17th centuries, few people bothered to think about the value of tolerance. In fact, it was perceived as a virtue to be intolerant of dissenters. When it came to religious dissenters, it was considered a duty to persecute them as a threat to the political order and the spiritual health of society. Believers were obliged to eradicate heretics and blasphemers; otherwise they, and their communities, risked becoming targets of God's wrath.

This understanding started to change in the aftermath of the wars of religion in Europe. On a pragmatic level, there was an urgent need for Protestants and Catholics to work out ways to live together in peace. This resulted in a regime of religious coexistence with limited tolerance. Religious minorities were allowed to gather outside of town to hold their worship services, or they established so-called Schuilkerk, secret houses of worship in private homes that later paved the way for the separation of public and protected private spaces.

Doubts about the certainty of our knowledge also led to greater tolerance of other beliefs and opinions. Europeans travelled to faraway places and saw that people there were guided by different approaches to life. This was reinforced by a growing skepticism about truth. To those epistemic arguments, John Stuart Mill added that increased toleration and exposure to competing ideas would help the tolerant—would lead, that is, to better societies and better individuals. On the Millian view, people would experience greater individual satisfaction when they could choose their beliefs for themselves and take responsibility for the choices they make.

The case for tolerance that grew out of this story once seemed settled. But no more. Each day brings news of intolerance toward speakers on university campuses in the Anglo-Saxon world. There are many reasons for this, but one fundamental challenge is that tolerance in many ways goes against human nature. We are not born tolerant; it's something we have to learn.

Peter Balint, a senior lecturer in international and political studies at the University of New South Wales in Canberra, Australia, examines the deeper arguments of critics of tolerance. His new book defends toleration as an effective and respectable tool to manage diversity in a liberal democracy. Respecting Toleration: Traditional Liberalism and Contemporary Diversity focuses on three forces in our world that push against tolerance: the multicultural challenge, the despotism challenge, and the neutrality challenge.

The multiculturalists contend that the liberal approach to diversity based on neutrality and tolerance has failed because it doesn't involve positive respect for or recognition of minorities. Balint posits that if we care about people living their lives as they see fit and doing the things they want to do within the framework of the law, then state neutrality is the best possible means toward that end. The respect-and-recognition approach, moreover, risks placing in jeopardy vulnerable minorities within minorities (a non-veiling Muslim woman, for example, in an enclave of Muslims whose prominent spokesmen interpret the Quran as requiring that women wear the hijab).

The defenders of despotism—many of whom are sophisticates and disclaim that that is what they are defending—hold the view that tolerance is an outdated concept that a diverse society based on equality needs to move beyond. As the Swiss-born academic Tariq Ramadan puts it: "Toleration is intellectual charity on the part of the powerful . . . and we must get beyond it. When standing on equal footing, one does not expect to be merely tolerated or grudgingly accepted."

Ramadan is referring to a classical definition of tolerance that involves objection to something, the power to interfere, and finally, the withholding of that power. Balint refutes this definition by saying that toleration can involve power and objection, but it's not always the case. Liberal states quite often exercise tolerance without having any objections; and even if they do object, their practice of restraining themselves from interference is better than the alternatives. Tolerance on behalf of the state may involve respect, indifference, and forbearance. Balint makes a distinction between a general, permissive practice of tolerance and specific acts of forbearance.

Finally, those offering the neutrality challenge insist that tolerance has been superseded by, or is incompatible with, liberal neutrality, which implies that the state does not judge ways of life in society. These liberal critics of tolerance posit that the state should strive for neutrality, and if it does, tolerance is rendered at best irrelevant. Balint replies that tolerance and neutrality need to be understood as range concepts—that is, they operate on a continuum, so that these are always matters of degree. The things the state should be neutral about are going to be narrower than the things the state should tolerate. Tolerance and neutrality are therefore perfectly compatible with one another. The latter does not exclude the former.

To make clear that tolerance isn't superseded by neutrality, Balint provides several examples. Take the Islamist party Hizb-ut-Tahrir, which nonviolently campaigns for a caliphate; a political party in the Netherlands that is against equal rights for women; a Communist Party that wants to get rid of liberal democracy and liquidate the right to private property; or a White Aryan Church that propagates racism and discrimination against nonwhite people. The state might tolerate these groups, but that doesn't mean that the state should be neutral toward them.

Balint rightly says that it is intolerance (not tolerance) that needs justification in a modern liberal democracy. We demand proper and weighty reasons for governments or people to negatively interfere in the lives of others. We have a right to be in control of our own lives. It is, as Balint stresses, "about a fundamental freedom to live one's life as one sees fit." He thus makes the case for a freedom-centered approach to toleration, defending liberal toleration as the best way to accommodate diversity in today's liberal democracies. This goes for both the state and its citizens.

A laudable effort is made here to defend tolerance as a tool to promote social change and individual freedom—all in the name of creating as much space as possible for a diversity of ways of life. But the author would have served his case better with a more robust and consistent defense of freedom, especially freedom of speech. Diversity of culture, ethnicity and religion—which is to say, diversity of ways of life—is closely connected to diversity of opinions and speech. Hence a key challenge to free speech comes from politicians and civil society groups who celebrate diversity of cultures and ways of life, but turn around and denounce diversity of speech and opinion.

Balint doesn't accept the distinction between words and deeds that throughout history has been crucially important for the cultivation of freedom and tolerance. He rebuts the thesis that intolerance should be understood as curtailing agency, because it makes it difficult to identify as intolerant symbolic acts such as desecrating a religious text or knocking down a religious symbol. These kinds of symbolic manifestations do not prevent anybody from doing what they want but, according to Balint, they are still expressions of intolerance.

He prefers to define tolerance as "negative interference," which includes more than criminalization, bans, violence, threats, and intimidation. In doing so, he broadens the scope of what may be perceived as intolerant, and he blurs the line between speech and action. This, in turn, opens the door to the legitimization of a wide range of restrictions on speech like Bible- burning, racist speech, or other utterances that may be deemed psychologically harmful. In short, he invites limitations on the very freedom that he says he want to promote.

Desecrating a religious text is of course outrageous, though I am not sure if it is by definition an act of intolerance. Consider the following example: Your family has been killed in a terrorist attack. The perpetrators justify their crime with references to a holy book. To express your contempt for the crime, you desecrate a copy of that holy book. You burn it or tear it to pieces. Would that be an expression of intolerance? Does it prevent believers from exercising their faith? Does it cause physical harm to anyone?

And how would Balint define the Russian feminist punk group Pussy Riot's performance inside the Cathedral of Christ the Savior in Moscow in 2012? The Russian Orthodox clergy qualified it as a sacrilege—that is, an act of intolerance—while the women said their protest performance was directed at the Orthodox Church leaders' support for Vladimir Putin during the election campaign. Three members of Pussy Riot were convicted of "hooliganism motivated by religious hatred," but Amnesty International designated the women as prisoners of conscience.

There is of course a thin line between expressive, intolerant acts that are unlikely to, or are not intended to, coerce, as against acts that are both expressive and coercive, like hanging a noose outside a black student's dorm.

Nevertheless, it seems to me that the author is too quick to write off the definition of intolerance as curtailing agency—that is, strictly defining it as preventing others from doing what they have a legitimate right to do. Such a definition would strengthen Balint's own case for freedom with a hands-off approach based on a culturally thin state.

In general, Balint hesitates to set forth boundaries. He wishes, he says, to focus on the "application of toleration to contemporary diversity" not the limits of toleration. Only briefly are the limits addressed, and to sketch them out he identifies two types. The first limit on toleration is in line with the harm principle and refers to speech and actions that impede other people's freedom. The second points to considerations of security, welfare, equality of opportunity, and efficiency.

The harm principle is familiar. Let's consider the second boundary in greater detail: the fact that tolerance needs to be balanced against other considerations. Balint says that justice in spite of freedom of conscience and association may need protection. The limit in this case depends on what sort of threat to justice is posed. Numbers and intensity matter. He provides the following example: A lonely old neo-Nazi is ignored, but a larger resurgence of anti-Semitism is tackled head-on. It involves forbearance of a xenophobic and racist ideology up until it becomes threatening.

This way of reasoning is problematic for a couple of reasons.

First, what does tackling head-on mean? Probably criminalization and some kind of law enforcement. If that's the case, then we need to determine where to draw the line. Is it only anti-Semitic acts that should be criminalized, or should anti-Semitic speech be criminalized as well? And what kind of speech should a ban cover? All speech, or just speech that incites violence? How tolerant should we of the intolerant?

It seems that the aforementioned distinction between words and deeds would have provided some guidance. A couple of years ago, Germany's domestic intelligence published a report revealing that there were 500 more extreme Right groups in 2015 than there were in 2014, and there was a 42 percent increase in violent acts by rightwing extremists over that same period. This in spite of the fact that Germany as a militant democracy has the toughest laws in Europe against racist and xenophobic speech.

A study by two Norwegian researchers on the link between extremist rightwing violence and limitations on free speech in Norway, Denmark, and Sweden suggested, similarly, that an environment where extremist speech was filtered out may well have increased the risk of extremist violence. Sweden has a tougher law when it comes to extremist rightwing speech than the other two have, yet more rightwing Swedes committed acts of violence than did their counterparts in Norway or Denmark. This indicates that there is no clear-cut link between evil words and evil deeds.

Second, the problem with criminalizing hate speech as an expression of intolerance is that the law isn't the most effective way to fight the sentiments driving this kind of speech. Civil society does that far better than the courts. (At least this is true in liberal democracies; in fact hate speech legislation in nondemocratic countries is usually used to target minorities.)

To sum up: Balint makes a persuasive case for tolerance as a tool to manage diversity, both as a relationship between the state and its citizens and among citizens themselves. He is right that a freedom-centered approach creates the most space for individuals to live their lives as they see fit. But the lack of a comprehensive discussion of the boundaries of toleration and disregard of the decisive role played by the distinction between words and deeds in advancing freedom weaken his case.