By AZIZ Z. HUQ
Review of The Limits of Tolerance: Enlightenment Values and Religious Fanaticism, by Denis Lacorne
New York: Columbia University Press, 2019
A waitress at the upscale Chicago cocktail bar Aviary spits upon Eric Trump in an apparent show of political disdain; the President’s son complains about the absence of “tolerance.” Harvard University fires faculty dean Ron Sullivan after students protest his legal representation of Harvey Weinstein. Sullivan mourns the failure of “reasoned discourse”; others condemn students’ “difficulty tolerating moral difference.” The Tarrant County Republican Party votes to remove its vice chair because he is a “practicing Muslim”; the vote fails after state and national leaders object. In Denmark, Switzerland, and the Netherland, far-right parliamentary parties adopt platforms rejecting “multicultural society,” committing to “Western Christian culture” and the closure of all mosques. Those far-right parties gain ground in the 2019 European Parliament polls. And then there is the immigration detention facility in Clint, Texas, where children as young as seven, “many of them wearing clothes caked with snot and tears,” care for “infants they’ve just met” without soap, shampoo, toothpaste or showers. The policy under which immigrant children are detained is termed, perhaps not coincidentally, “zero tolerance.”
Tolerance, it would seem, is in parlous straits. It appears assailed from all sides of the political spectrum. Invoked against political protest, rejected as a national value, and conjured as a ground for strictly enforcing the law against children, the tolerance card today (sometimes intolerantly) is seemingly as empty as it is commonplace. Its promiscuity suggests that the word has come adrift from any conceptual or normative anchor. It is open to bidding from the most aggrieved and self-righteous of public figures.
One way to winnow this surfeit of tolerances to a more manageable domain is to lean upon intellectual or political history. Accounting for the way in which the term has evolved in philosophical writings or been deployed in practice, its meaning might be hammered into tractable form. But a problem with this approach is evident even on quick inspection of Denis Lacorne’s pithy, at times desultory, Europe-centered history of ideas and practices of tolerance: There is no coherent story to tell. The uses of the label “tolerance” over time, instead, do not converge on a stable conceptual core.
A first signal of trouble is that Lacorne’s exemplars of tolerant societies through history did not in fact label themselves as tolerant, or understand themselves to be pursuing some idea called “toleration.” Rather, a coherent account of tolerance is secured only by projecting that term backward to fashion a new and artificial lineage. Lacorne begins with Enlightenment European thinkers such as John Locke and Voltaire. He next lurches into reverse, turning to the Ottoman empire and the Venetian Republic’s founding of Ghetto Nuovo in the early 1500s. The last part of the book tackles a miscellany of hot-button issues: blasphemy law from The Satanic Verses, the various folies de foulard France has blundered into, and the problem of accommodating various religious garb and practices with secular law. No explanation is offered of why other issues—the rise of far-right anti-Semitism and anti-Muslim views, the clash of religious preferences with claims to gender or sexual identity—do not merit scrutiny. The net result is opinionated, fractured, and frustratingly piecemeal.
At the same time, Lacorne never strays far from a certain bien pensant liberal benevolence. His judgments on various topics, although never crystallized into a single verbal formulation, are eminently predictable once one has his number. What ensues is a Cliffs Notes for the well-meaning but lazy member of the center-left bourgeoise. The book’s coverage thus caters to the strain of liberalism that tends to ignore material causes in favor of “ideas.” It gives no hint of how economic relations of subjugation and domination—given flesh, say, in the slave trade and European colonialism—furnish both motive and raw material for European and American ideologies of intolerance. Nor is there any attention to ways in which a declining labor share of profits and swelling Gini coefficients today create conditions in which intolerance takes root as a traveling companion to nationalist revanchism. Neither economic inequality nor declining social mobility play a role in Lacorne’s lexicon.
This parti pris yields odd blind spots. Take Lacorne’s treatment of John Locke, invoked in his familiar role of tolerance’s patron saint. Lacorne praises Locke’s “quest for true religious pluralism” (17). But such praise sits uneasily alongside Locke’s principally religious grounds for tolerance. (“Faith alone, and inward Sincerity, are the things that procure acceptance with God,” explained Locke). It is positively at war with what Lacorne calls Locke’s “politically motivated” exclusion of Catholics and atheists from the domain of tolerance. For a “political motive” can be proffered to defend almost any categorical exception to a tolerance regime. The hostility once directed at Jews, now mainly channeled toward Muslims, on the European right, was and is justified by “political motives.” Because he does not notice this difficulty, Lacorne leaves open the possibility that openly racist political parties might claim the mantle of toleration. Nor does he address Anglican priest Jonas Proast’s 1690 rebuttal to Locke on the Augustinian ground that force can indeed bring “men to consider those Reasons and Arguments which are proper and sufficient” to the proper faith. And Pierre Bayle’s less canonical, but potentially more powerful, argument for reason in the Commentaire based on the “natural light” of reason gets only fleeting treatment.
Still, the theory of tolerance and its political practice are acoustically separate. One can always have one without the other. Lacorne implies as much by his somersault back in time from Voltaire to the early 1500s. One might thus hope that when theory fails, historical practice can still help resolve the contemporary contradictions of tolerance discourse. But if it does, Lacorne’s account doesn't illuminate the possibility.
Consider a contemporary difficulty concerning the scope of tolerance: On whom does the duty of tolerance plausibly fall? As Lacorne notes, “tolerance” was originally used to described only the state’s official policy toward religious difference. Today, the term extends more broadly to cover private expressions of disapproval based on moral or religious difference. This diffusion is perhaps an inevitable consequence of mass democracy’s emergence from the end of the eighteenth century onward. (Lacorne doesn’t say.) Where public opinion—however one defines it—somehow shapes state action, a strict separation of private dispositions and public actions becomes harder to sustain. If a majority of the electorate believes (say) that homosexuality poses a threat to the “family,” as perhaps is the case is Poland, it becomes difficult for the government to accommodate and protect the relevant minority. As the Poland case suggests, the private/public barrier allows an osmosis of animus in both directions. There, and in many other instances of democratic intolerance, a particular domestic ruling coalition assiduously cultivates intolerance as a means to maintaining political office in the first place. Public ire follows in due course.
Lacorne sees the insufficiency of talking just about the state when it comes to tolerance. He’d prefer to speak of a “consensual system of harmonious coexistence between a multiplicity of religious doctrines and a secular political order” (8). This is an odd definition. It seems to exclude the Ottoman sultanate led by the “shadow of God on earth,” which Lacorne thinks had a richer repertoire of tolerance than contemporaneous European empires and kingdoms. States with an established church, such as Great Britain and Denmark, are perfectly capable of meeting the balance of Lacorne’s definition, but are arguably excluded by his last caveat. In formally secular states with influential religious movements, such as the United States, “harmonious coexistence” may also prove elusive because religious groups can gain political muscle and flex it in intolerant ways.
Worse, Lacorne’s is a definition that leaves far too much unresolved. Most obviously, Lacorne needs to say something about how the obligations of tolerance vary between citizens and their democratic rulers. As the Polish case suggests, an account of tolerance under democratic conditions implies something like an ethics of leadership. It also needs to say something about whether tolerance requires citizens simply to allow for coexistence, or else evince a positive show of respect. The former might allow for the Aviary waitress’s defiant gesture—but it also might be consistent with the refusal on the part of many American evangelical and Catholic retailers to serve LGBTQ customers. Or perhaps for a physician to provide life-saving treatment when no other doctor is available. The proper etiquette of tolerant coexistence among citizens, that is, is hardly self-evident.
Moving past the question of scope, a second difficult cluster of practical questions comes into view. A demand that the state promote “harmonious coexistence” remains opaque. As Lacorne’s rather free-form tour d’horizon hints, conflicts between religious norms and either secular law or others’ legally protected interests come in diverse forms. What seems at first a simple case can turn out to be less than clear on inspection.
Here's an example. A polity in which some group by dint of its identity labors under legal disadvantages or the yoke of violent social umbrage is not properly ranked as tolerant. Thus, Jews who fear anti-Semitic violence in France, like Muslims who fear unpoliced mob violence in India today, legitimately complain of intolerance. But this simple observation destabilizes Lacorne’s historical examples. He considers the Ottoman “millet” system an instance of tolerance. There, non-Muslim religious minorities enjoyed freedom of conscience, as well as the freedoms to contract and hold property. Yet they also had to stand rather than sit in the presence of Muslims; ride mules and donkeys rather than horses; pay a special head tax; and refrain from wearing certain colors. Exceptions and accommodations were frequent, notes Lacorne. But the formal disadvantage of non-Muslims never dissipated. So why should the millet system be ranked as tolerant in the first place? Would a jurisdiction that imposed those rules on a religious minority today be denominated as tolerant?
There is more that is destabilizing to Lacorne’s thin notion of “harmonious coexistence” as an ideal. Problems arises because modern states claim legitimacy by providing public goods to their citizens. A state that can’t supply safety from crime, or ensure basic goods such as education and health care, is a state with a tenuous claim to its citizens’ loyalty. But it is a characteristic of religion that it imposes obligations on its members that purportedly override sublunary law. Conflicts of legal and religious obligation hence abound: Should conscientious objection be permitted from a military draft on religious grounds? Should a person be allowed to refuse blood transfusions? What about on behalf of their children? Should one be allowed to decline to pay taxes that fund state activities one believes morally wrong?
These questions are entangled with the scope of our obligations to others. In the United States, for example, it is now the case that the religious owners of a corporation can decline to cover their employee’s health insurance in relation to certain contraceptives. Although the effect of such accommodation will vary from case to case, it seems likely that in some instances women will be physically and materially harmed as a consequence. Many hard cases for tolerance are like this: One person’s religious claim impinges materially on another person’s important interest. No general principle to resolve such conflicts emerges from Lacorne’s discussion. Rather, he gives seemingly ad hoc judgments on blasphemy, veil prohibitions, accommodation demands, and the like. Consequently, it is quite impossible to know where he thinks the outer bound of tolerance lies.
So where would one start in thinking about the “limits” of tolerance (to invoke the title of Lacorne’s book)? As I have already suggested, a discussion of tolerance without attention to the underlying dynamics of material contestation between classes or nations (or, indeed, employers and their staff) is likely to miss much of importance. To take a normative position on tolerance is to adopt, knowingly or otherwise, an account of power.
It seems to me that one thing that distinguishes the Eric Trump and Harvard cases from the Tarrant County and the European far right cases is the different gradients of power at work. Tolerance, it seems to me, matters far more when one has the capacity to exercise some measure of influence or to inflict harm on others. There is also no doubt good reason for thinking more widely of power in a post-Foucauldian manner. Still, some things seem clear: When expectoration is the limit of one’s power, there is rather less cause for concern. Even as a regime of tolerance must account for how the risk of physical harm to others is distributed, it must also have some way to police facetious invocations of such risk. American law is increasingly and regrettably indifferent to the risks to women’s health from religious accommodations. At the same time, the law provides almost no protection to religious liberty when the purported basis for state constraint is the perceived (but actually rare) risk of Islamist terrorism. Such uneven sensitivity to harms across different social and religious groups can easily congeal into the sort of political motive that, as Locke showed, can foreclose even an otherwise robust theory of tolerance.
In brief then, Lacorne’s book allows readers to test their own intuitions about the terms of tolerance. What they will not find is any comprehensive weave of intellectual and political history. Nor will they uncover any theory grounded in history and careful reflection of how far tolerance must go, and when it must—reluctantly and sadly perhaps—give way.
Posted on 4 September 2019
AZIZ Z. HUQ is Frank and Bernice J. Greenberg Professor of Law and Mark Claster Mamolen Teaching Scholar at the University of Chicago Law School. He is the author, with Tom Ginsburg, of How to Save a Constitutional Democracy.
