Leiter, the Karl N. Llewellyn Professor of Jurisprudence and Director of the Center for Law, Philosophy, and Human Values at the University of Chicago, started out by asking, “What’s toleration and why ought we to practice it?” Toleration, he argues, only becomes an issue when one group has a problem with what another group is doing. The state of “not having a problem” with the beliefs and practices of others, what could be described as indifference to difference, may in fact be the moral high road (more on this later). Other times we simply choose to put up with practices we disapprove of in what might be termed a principled tolerance.
Leiter offered that much of what seems principled toleration is at its root pragmatic. In “the Hobbesian compromise”, one group would gladly stamp out the others’ beliefs and practices, but holds off because the cost or risk of doing so would be too great. John Locke’s subtler but no less practically based approach holds that belief is a special state; you can’t coerce it. The state lacks the means to purge heretics of their wrong beliefs. American free speech jurisprudence, which is very tolerant of offensive speech, is based on the view that government cannot be trusted to discriminate between harmful and benign speech.
Principled toleration, however, is altogether different. It’s based on a paradox: you put up with morally wrong beliefs because it’s morally right to do so. The English philosopher Bernard Williams wrote, “One possible basis of such an attitude…is a virtue of toleration.” This was the principle of another Williams, Rhode Island’s Roger: permitting offensive views and practices to flourish is itself a kind of good.
In his 2013 book Why Tolerate Religion? (Princeton U. Press), Leiter writes: “We can distinguish between two broad classes of principled arguments for toleration, which I will call moral and epistemic (though the latter ultimately rests on moral considerations as well).… The strictly moral arguments divide into Kantian and utilitarian forms.”
Among the Kantians, Leiter explains, John Rawls held that “toleration…follows from the principle of equal liberty.” In what he calls the “original position” — a hypothetical situation in which people choose basic principles of justice without knowing in advance what their place in society would be — Rawls reasons that persons “cannot take chances with their liberty by permitting the dominant religious or moral doctrine to persecute or to suppress others.”
Nothing about Rawls’ argument, however, confines it to religion, as opposed to more general claims of conscience. This is even more the case for the utilitarian idea that “being able to choose what to believe and how to live… makes for a better life. Being told what you must believe and how you must live, conversely make lives worse.” This “private space argument” opens up “a more capacious ground for liberty of choice than the Rawlsian argument, which seems delimited to weighty mat¬ters of conscience….”
Leiter notes that the first premise in John Stuart Mill’s argument for toleration is moral: we should care about the truth because truth contributes to the morally valuable end of utility. Mills’ second premise, on the other hand, is epistemic. Mill held that toleration of divergent beliefs and practices contributes to knowledge of both truths about “facts”” and truths about “value”, particularly truths about the best kinds of lives available to us. For Mill, since we cannot assume we are infallible, we must permit dissident opinions that may be true. Moreover, even if our beliefs are partially true, we are more likely to apprehend the whole truth if we are exposed to beliefs that may capture other parts of it. Finally, even if our present beliefs are wholly true, we are more likely to hold them for the right reasons if we confront other opinions, even false ones.
Mill went further, arguing for a toleration that encompasses practices as well as beliefs. To know how we really ought to live, we must have the empirical evidence provided by lives lived under different principles. Leiter writes, “It is only, for example, by seeing (or, better yet, experiencing) the lives of a pig satisfied and Socrates dissatisfied…that we can come to the knowledge that the latter life is better….”
Leiter tells us that all the principled arguments for toleration make room for limits on how much toleration the state must display toward acts of conscience. For Rawls, “the limitation of liberty is justified only when it is necessary for liberty itself, to prevent an invasion of freedom that would be still worse.” For the utilitarians, the Mill’s Harm Principle applies: “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” Leiter observes, “The state will still, on either the Rawlsian or Millian view, it seems, have to tolerate some religious group’s belief that adherents of all other religions are heretics, destined for damnation; but the state need not tolerate that same group’s desire to act on its beliefs by, for example, killing the infant children of the alleged heretics before their souls are corrupted, and thus eternally damned, by heresy.”
Leiter argues that while some contemporary “liberal” philosophers think the right posture for the modern state is not toleration but neutrality—the notion that the religion of any citizen is irrelevant to all other citizens. But neutrality (or what we called at the beginning “indifference to difference”) may be a chimera. After all, every state stands for a “Vision of the Good.” When a minority makes claims of conscience, based on religion or something else, that fall outside this vision, it is asking the state to suspend its Vision of the Good in order to allow a conscientious practice incompatible with it. That’s not neutrality; it’s toleration, Leiter says. And the practice of toleration by the State can impose extra burdens on other citizens in order to make the accommodations.
The hardest cases are those that involve the expression of beliefs that are likely to infringe upon liberty or cause prohibited harms and cases that involve practices or actions that are likely to cause the infringement of liberty or prohibited harms. Circumstances alter cases, according to Mill: “An opinion that corn dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn dealer.” Mill is arguing here to on a tight causal nexus between expression of the belief and forbidden acts; for Rawls, the connection needn’t be quite so tight.
The cases that involve practices or actions present the same dilemma: there are practices based on beliefs that it seems ought to be tolerated but might lead to harm. In the 2006 Canadian case, Multani v. Commission scolaire Marguerite-Bourgeoys, the cause of action involved the right of Sikh boys to carry the kirpan (a ceremonial knife) in schools where weapons are prohibited, as required by their religion. The authorities argued that this practice posed too great a risk of harm; the other side noted that there was no known instance of a kirpan being used as a weapon. The Canadian Supreme Court opted for toleration because of the importance of the practice to Sikhs, the slight risk of harm, and the special value the Canadian Charter assigns to multiculturalism. In other words, the trade-off for the Canadian government’s accommodation of the religious expression of Sikh children would be the exposure of non-Sikh children to the extra, if slight, risk posed by the presence of the kirpan in classrooms.
But, Leiter asks, what if the boy had been from a rural community whose traditions mark the arrival of maturity for males by the passing of a dagger or knife from father to son. Every boy of knife-bearing age would feel conscientiously obligated to carry his knife with him, even in school; not to do so, even in compliance with the law, would damage his identity. But there is no Western democracy in which such a boy has prevailed — or would.
The moral ideal of toleration provides the best justification for our Western ideal of religious liberty, but why should it be confined to that? Why should the Sikh boy and the rural boy be treated differently? Why should the state have to allow exemptions when the law conflicts with religious obligations but not when other equally conscientious obligations are claimed? Leiter concludes that principled toleration does not require that we do so. In general, burden shifting exceptions should be few. But the larger point is that while toleration may be a virtue, its selective application to the consciences of only religious believers is not morally defensible.
There are many who disagree with Leiter, of course, and we will look at those in a future post. But whether one agrees with him or not, the implications of his argument are both unsettling and, potentially, liberating. We may think we know what we’re saying when we use the word toleration, but do we? And if we think we do, does that mean we fully understand the implications and consequences of our ideas? On the basis of this stimulating talk, the answer is almost certainly not yet.