Last month, the French Constitutional Council struck a blow for the ideal of a tolerant and open society. It declared that the French government’s new law punishing the denial of the Armenian genocide was unconstitutional and infringed upon the freedom of expression. The council’s summation was accurate. President Sarkozy’s government had effectively tried to criminalise an idea, albeit a misguided one. It had suggested that tolerance should not be applied to those who deny the Armenian genocide – hence it proposed a law prohibiting it. Predictably, the government swiftly rejected the council’s judgment. Without a hint of irony it issued a statement declaring that genocide denial ‘is intolerable and so must be punished’. Now, it could have used an adjective like ‘reprehensible’, ‘offensive’ or ‘unacceptable’ to describe genocide denial. But it didn’t; it declared it ‘intolerable’. That the French government is proudly upholding intolerance towards a statement of belief or a speech act as a value reveals a lot about the esteem in which the ideal of tolerance is held in European societies.
Indeed, it is remarkable that during the months leading up to the passing of this illiberal law by the French parliament, there was virtually no serious opposition to or criticism of it either within France or elsewhere in Europe. The absence of any significant opposition to the criminalisation of statements questioning the Armenian genocide suggests there is now a pragmatic and instrumental attitude towards tolerance.
So while European societies still formally advocate tolerance, they are more and more likely to find exceptions to its application. For example, since the publication of my book On Tolerance, I have continually been asked ‘how can we tolerate intolerance’? The very posing of such a question implies that tolerance is a freedom that should only be given to those who deserve it.
Likewise, when people ask the rhetorical question ‘has tolerance gone too far?’, what they are saying is that it can be rationed and made available only to those who share our moral universe. It is a sentiment that implies that there is ‘too much’ tolerance. From this perspective, to be tolerant is seen as a soft option that avoids making hard judgements. This was the meaning that Prime Minister David Cameron attached to it when, in a reference to Islamic terrorism, he said : ‘Frankly, we need a lot less of the passive tolerance of recent years and much more active, muscular liberalism.’
But what exactly is ‘passive tolerance’? Tolerance is anything but passive. It requires courage, conviction and a commitment to freedom – key characteristics of a confident and active public ethos.
In fact, tolerance upholds freedom of conscience and individual autonomy. It affirms the principle of non-interference in people’s inner lives, in their beliefs and opinions. And, so long as an act does not harm others or violate their moral autonomy, tolerance also demands no constraints on behaviour that is related to the exercise of individual autonomy But connecting the term ‘passive’ to tolerance suggests that those who are ‘tolerant’ are just avoiding confronting the real threats facing society. This was the argument promoted by Moshe Kantor, president of the European Jewish Congress. Speaking at the European Parliament in November 2008, as part of the commemoration of the seventieth anniversary of Kristallnacht, Kantor stated that this terrible event tested the tolerance of Europe. He added: ‘Hitler checked the tolerance of Europe twice before starting World War II. First he experimented with the Jews and then he experimented with Europe.’ And on both occasions, Kantor argued, Europe was found to be ‘criminally tolerant’. Now pause for a moment and reflect on the term ‘criminally tolerant’. The criminalisation of what is an honourable liberal virtue may be dismissed as rhetorical attentionseeking.
But this devaluation of the ideal of tolerance is more significant than that. It is symptomatic of a wider tendency in European public life to represent tolerance as a kind of mixed blessing. So despite Kantor saying that Europe needs to learn to be more tolerant of the other, he still concluded that ‘tolerance can be both a medicine and a poison’. It is worth noting that this less-than-enthusiastic endorsement of tolerance was made by a man who is chairman of the European Council for Toleration and Reconciliation!
This shift towards the regulation of intolerant views has led to the proliferation of laws against hate speech, and also to so-called anti-discrimination laws that criminalise expressions characterised as ‘hateful’ or merely ‘derogatory’ towards members of religious, ethnic, national or racial groups.
It is in this context that the revised EU definition of tolerance demands that speech should be restricted rather than protected. This orientation towards the regulation of intolerant views has led to the proliferation of laws against hate speech and so-called anti-discrimination laws that criminalise expressions characterised as ‘hateful’ or merely ‘derogatory’ towards members of religious, ethnic, national or racial groups. Numerous advocates of the policing of hate speech argue that intolerance directed towards the intolerant is ‘democratically defensible’ because it secures the full participation in society of people who would otherwise feel excluded.
The application of an official double standard towards intolerance is paralleled by the debasement of tolerance as a moral value. This is because those who regard the selective application of intolerance as a legitimate method for dealing with hateful ideas also tend to adopt an instrumental attitude towards tolerance.
Accordingly, the application of tolerance becomes contingent on the degree to which people’s views and beliefs are regarded as objectionable. Tolerance becomes a moral good that is rationed according to circumstances. This rationing of tolerance is justified on the grounds that, since the intolerant do not endorse the values of a tolerant society, they ought not to enjoy its benefits. A more illiberal version of this argument states that since a tolerant society is at risk from the forces of intolerance, be it Islamic terrorists or neo-Nazis, it is obliged to defend itself by whatever means necessary. The Italian political philosopher Elisabetha Galeotti adopts just such an argument for withholding toleration from those who practice racist speech:
‘The more tolerant a society, the more liberal it is, but also the more exposed to the risk of being overtaken by intolerant forces. If liberalism is to be preserved, toleration must be restricted: and the stricter its limits of toleration, the safer the liberalism, but the less liberal the society.’
This claim that the preservation of liberalism depends on the careful rationing of toleration is now widely accepted by European institutions.
The risk of tolerance
As Galeotti suggests, tolerance is a risky enterprise. Indeed, a belief in freedom has always been associated with a willingness to take risks. Inversely, the rationing of freedom supposes that unless regulated it will have potentially destructive consequences. That is why, last October, Moshe Kantor proposed the idea of what he called ‘secure tolerance’. ‘Tolerance must be limited’, he said, ‘primarily by security requirements’.
The securitisation of tolerance is usually conveyed through the paradigm of the ‘freedom/security trade-off’. Although this paradigm has numerous variations, it basically conveys the belief that freedom and its exercise need to be regulated to minimise attendant risks and harms.
One variant of this argument is the claim that freedom of speech is risky because it is responsible for psychic, physical injury or pain suffered by an individual or community. From this standpoint, the criminalisation of hateful speech is justified on the grounds of protecting the wellbeing of a particular community. Another variant of this argument focuses on the threat that the free advocacy of jihadist ideology poses to the security of European society. Calls to ban radical Islamists from speaking on some UK campuses have been justified in precisely these terms. Hence, as one advocate of Islamist campus bans argues: ‘The danger which violent extremism now poses to our society means we all need to accept some trade-off between freedom and security.’
Since the dawn of modernity, critics of liberty have repeatedly talked of the necessity of trading off freedoms in return for an alleged benefit. And time and again these benefits have turned out to be illusory. However, the belief that human dignity and a sense of self-worth require protection from the pain inflicted by hurtful speech is possibly the most counterproductive example of this trade-off argument. Because in reality, people acquire dignity and develop self-esteem, not through relying on the good will of the censor or the police, but through dealing with the problems that confront them.
Trading off freedom for some alleged psychic benefit is not unlike the argument deployed by authoritarian-minded politicians to justify policies that curb people’s rights in order to ‘preserve their freedom’. Over and over, intolerance appears as a weapon of choice by those claiming to defend the values of a tolerant society.
Attempting to defend tolerance by restricting it when confronted by those who are intolerant suggests that tolerance is best protected by adopting the moral standards of its enemies. Not only is this posture illogical, it also deprives tolerance of any principled moral content. As Ronald Dworkin argues, ‘in a culture of liberty [the public] shares a sense, almost as a matter of secular religion, that certain freedoms are in principle exempt’ from the ‘ordinary process of balancing and regulation’. He fears that ‘liberty is already lost’ as ‘soon as old freedoms are put at risk in cost-benefit politics’.
Many intelligent observers have criticised the ease with which political leaders have been able to win the public’s acquiescence to the security-for-freedom trade-off, through policies designed to curb the speech and activities of those deemed the enemy. However, when a similar trade-off is proposed in relation to limiting tolerance towards offensive speech in order to validate or celebrate a particular lifestyle, such criticism is conspicuous by its absence. The societal tendency to exchange tolerance for security communicates a lack of confidence in the capacity of an open society to deal with challenges to its values and way of life. It also signals a sense that we, as a society, are increasingly unable to deal with future uncertainty. One of the clearest manifestations of this aversion to risk is the metaphor of zero tolerance.
The metaphor zero tolerance also implies notions of zero-judgment and zero discretion. These are policies that are meant to be applied arbitrarily and punish without regard to circumstances. It spares judges and officials from having to think about the circumstances affecting a particular event and exempts them from exercising their capacity to discriminate and judge. In the case of zero tolerance towards offensive speech, such as genocide denial, it means sparing citizens the burden of having to draw their own conclusions about the merits of an argument.
The idea of zero tolerance is also informed by risk-aversion. It represents an attempt to abolish, administratively, the risks associated with the expression of an unwelcome idea or belief. Of course, in one sense, tolerance is risky. Once conventional restraints on belief, opinion and speech are removed it becomes difficult to predict the future course of public life. The freedom to speak and to pursue knowledge has a habit of going off in unexpected directions. One reason why communities find it uncomfortable to be entirely open to freedom is because they often yearn for the taken-for-granted and predictable patterns of previous times.
Loss of moral authority
It is important to understand that the project of fighting intolerance with intolerance invariably debases the moral status of tolerance. Once the call for intolerance becomes culturally acceptable in some instances, it immediately becomes a possibility in other instances. That is why in numerous controversies and debates it is now acceptable to demand intolerance towards the views of one’s opponents. It was in this vein that the UK government’s chief scientific adviser John Beddington told last year’s annual conference of scientific civil servants to be ‘grossly intolerant’ of the misuse of science by religious and political groups. ‘We are grossly intolerant, and properly so, of racism’, he stated, ‘we are grossly intolerant, and properly so, of people who [are] anti-homosexuality… We are not – and I genuinely think we should think about how we do this – grossly intolerant of pseudo-science.’
Again, Beddington’s choice of the term intolerance is significant. He could have called for an intellectual battle against bad science or for the need to wage a battle of ideas against superstition. But he chose instead to call for intolerance.
If European intellectuals and scientists can represent intolerance as a virtue, then the battle for upholding tolerance has become truly precarious. Worse still, this intellectual acceptance of intolerance as virtuous endows the unapologetic intolerant with moral authority. In the battle between intolerance and those who respond with intolerance, who possesses moral authority?
Last year the Polish philosopher and MEP Ryszard Legutko published a booklet called
Why I don’t like Tolerance. Legutko, who is a voiceferous critic of the gay-rights movement, is proud of his bigoted intolerance. He may possess exceptionally unpleasant opinions, but those who counterpose their intolerance to his share the same moral low ground with him. That’s the lesson that a democratic society needs to learn. And that is why the French Constitutional Court should be commended for upholding the principle of the freedom of expression.
It is a sign of the times that very few people questioned the right of the French state to pronounce upon which interpretation of the past is legitimate and which is a crime. Authorising the state to dictate what people should believe, and what constitutes the historical truth, represents a fundamental threat to freedom.