I will begin with a confession: on first reading, Professor Heyd’s chapter left me largely perplexed. It was easy to admire the clarity and analytic precision of his conception, but more difficult to know how to engage it. Part of the issue was the stringency of his predominantly philosophical or normative approach to defining toleration: it had the puzzling effect of evacuating toleration of many of the characteristics I was most inclined to associate with it. The treatment of politically marginalized sexual, racial, or ethnic minorities—which has, to my mind, the potential to raise paradigmatic issues of toleration—was presumptively excluded, on the ground that there was no basis for legitimate moral objection to such groups, so the restraint of such objection did not constitute tolerance. Complicating this problem was the abstraction of Professor Heyd’s formulation. His affirmative account, of a cognitive shift from an act-focused to an agent-focused analysis, was only infrequently embellished by examples of acts and actors to which his version of toleration would apply.1
The resulting perplexity sent me into the recent literature on toleration, where I made an interesting discovery: the sense of impasse, or difficulty of engagement, that I experienced with Professor Heyd’s paper seemed often to afflict contrasting groups of theorists writing on the subject of toleration. Often it seems that they are writing on completely different concepts: some emphasize the paradoxical or transitional character of toleration—a foregone expression of moral condemnation that is increasingly squeezed between moral demands for intervention and political demands for acceptance—while others see toleration as implicated in the various, ongoing ways that contemporary cultures negotiate the politicization of difference.2
In this essay, I will propose a kind of analytic bridge between these different approaches to toleration, by distinguishing two concepts: “forbearant toleration,” of which Professor Heyd’s understanding is a paradigmatic example, and “engaged toleration,” which I will describe as its successor in an extended or diffused political realm in which equality, rather than autonomy, is the human characteristic to which the tolerant pay tribute. I will explain why engaged toleration is appropriate to the circumstances and self-understandings of citizens in contemporary, egalitarian democracies, and why focusing on it leads me to different answers to some if not all of the questions Professor Heyd’s essay poses. I will argue, however, that engaged toleration shares certain features in common with Professor Heyd’s conception: it involves a cognitive shift, and it reflects not simply a pragmatic accommodation but a principled tribute to an essential human characteristic. These observations lead me to share the conclusion that Professor Heyd’s conception of toleration is transitional, although perhaps for different reasons than he intended.
Toleration, as understood by Professor Heyd, is “the attitude of restraint in responding to morally wrong beliefs and practices.”3 It is a paradoxical practice, in that one intentionally restrains oneself from intervening in actions that one finds morally objectionable. It is accomplished through a cognitive shift “from the impersonal judgment of actions to the personally-based judgment of the agent”:4 the tolerator focuses on “the subject or agent behind [the beliefs or actions], the way that the beliefs were formed, the manner in which they cohere together in a system of beliefs or constitute a life plan of an individual.”5 Toleration had its political moment when early modern democracies sought to constitutionalize it as a vehicle for the separation of church and state; but after this brief transition, it returned to its prior domain in “the realm of interpersonal and intercommunal relations.”6 Both the definition of toleration and the nature of the modern state make clear that the former cannot be exercised by the latter:
The state is an embodiment of an impersonal constitutional structure which derives its validity from universalizable principles. In that respect it is neutral, at least with regards to its citizens, even if not with regards to values or moral doctrines. Unlike a medieval sovereign, the state is an impersonal institution which cannot be described as “suffering” in having to reconcile itself with beliefs and practices to which “it” does not subscribe. Hence, it cannot be said to overcome or endure its wish to undermine or interfere with them. … The law either permits or prohibits certain practices and activities. The prohibited act cannot be tolerated by the law and the permitted practice cannot be said to be endured as a matter of charity or restraint.7
In Professor Heyd’s view, the direct operations of the state define the domain of the political. Its neutrality and its prescription of duty through practices of codification and constitutionalization mean that toleration cannot be practiced by the state, and must, therefore, be a non-political practice.8 It is the supererogatory act of an individual citizen or group, a contemporary version of grace that pays tribute to the autonomy of the tolerated agent.
As will be clear in the following discussion, my differences with Professor Heyd are importantly definitional. But my differences with Professor Heyd are also methodological. After describing two approaches to defining toleration—the historical (or contextual) and the philosophical or normative—Professor Heyd opts for the latter, offering a few introductory historical comments that are consistent with, or supportive of, his normative understanding.9 My approach will be roughly the complement of Professor Heyd’s: I will offer an analysis that takes its bearings from certain descriptive features of the contemporary context, and is attentive in ways that Professor Heyd acknowledges that his approach is not, to the “ordinary language of toleration.”10 But my effort will also attempt to conceptualize “engaged” toleration in ways that have some normative impetus.
As is perhaps appropriate to this method, I will begin with Professor Heyd at his most historical: at that moment in his brief genealogy of toleration where, he claims, toleration becomes obsolete as a political concept:
With the establishment of modern liberal democracy, Bayle’s vision became a reality. The successful career of the idea of toleration paradoxically led to its own decline, or at least made it superfluous in its traditional political form. In the second half of the twentieth century, ethnic and sexual minorities have become more and more impatient with the status of being tolerated. In a multi-cultural society, the demand for recognition supersedes that of toleration.11
In the argument that follows, I will contest Professor Heyd’s conclusion that “equality before the law and respect for the rights of individuals and minority groups tend to make toleration politically redundant.”12 This will involve, first, contesting Professor Heyd’s definitional notion that the political consists entirely of laws, institutional arrangements, and their justifications. It will consist, second, of challenging his suggestion that the ascent of equality has rendered toleration in the political realm obsolete. One of the most interesting aspects of Professor Heyd’s genealogy is the variation and contextuality it reveals in understandings of toleration at different historical moments. These movements reinforce my conclusion that emergence of egalitarian democracy has not rendered toleration superfluous, so much as it has created the need for a new foundation: one that reflects the equality of citizens in the public realm, as opposed to what Professor Heyd might refer to as the autonomy of citizens in the private realm. This new grounding suggests a need for a more engaged, as opposed to a more forebearant, conception of toleration, which I will elaborate in Part III.
I am largely in agreement with my co-commentator, Professor Sabl, in finding Professor Heyd’s statist conception of the political unacceptably narrow. The domain of the “political” consists of more than the formal actions of the state—which is, in any case, not the impersonal monolith evoked by Professor Heyd. The blurring of the public and private, the institutional and individual, in the increasingly diffused realm of the political results not only from the salience of “informal politics” in giving practical meaning to governmental pronouncements, but from the popular mobilizations and institutional changes associated with the rise of equality as a public value.
First, as Professor Sabl observes, “the state” is in fact comprised of human actors who inevitably exercise discretion that is informed by their own conceptions of toleration. The judge who must determine the scope of an asserted right—a matter that is often far more ambiguous than Professor Heyd suggests—often draws on his own intuitive or elaborated understandings of toleration (and other relations among the claimants) in so doing. Moreover, the meaning or import of governmental actions in the lives of affected citizens goes beyond official declarations: it often depends on how those actions are received and made part of the shared fabric of social life by private citizens, who act without any official connection to the organs of government. For example, the extent to which women experience toleration of their decisions to terminate their pregnancies depends not only on formal declarations of the right to abortion, but the ways that these formal declarations are interpreted and acted upon by abortion providers, members of the religious right, and other individuals and groups.13 The form and extent of toleration manifested by citizens in such informal politics inevitably affects this process of translating or assimilating governmental decisions.
Second, given the dense interconnection between public and private, official and informal, action in the political realm has been apparent in a range of governmental transformations that have accompanied the rise of equality as a public value. If one takes as examples two governmental enactments centrally associated (in popular parlance, if not in Professor Heyd’s terms) with the norm of toleration—the constitutional proscription on state action that violates equal protection, and the federal statutory implementation of this guarantee by legislation such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965—it is clear that these provisions did not spring full-blown from the heads of governmental officials. They took shape in response to a range of efforts by private actors, from the legal strategies of the NAACP Legal Defense Fund, to the various forms of non-violent protest by African Americans and their allies—from sit-ins at lunch counters to voter registration drives—that risked or invited intolerant responses by state and private actors in order to mobilize public opinion. The understandings of these actors about what was owed them as citizens, as well as about how to respond tolerantly to intolerant resistance richly infused their strategies and pronouncements.14 It therefore seems incorrect to exclude from the domain of the political private engagements that resisted state restrictions, mobilized support for new federal guarantees and, significantly, reflected efforts to express and operationalize tolerance.
Moreover, the embrace of equality as a public value has accelerated a series of institutional changes which have further distanced government from the limited, prohibitory role which Professor Heyd’s analysis envisions. Since the New Deal and the subsequent rise of the administrative state, government officials have become involved in the regulation of the economy, the provision of services, and the granting and validation of entitlements to opportunities and resources. This bureaucratic or administrative role creates armies of quasi-state-like actors: state contractors, social workers, and other service providers, who further blur the boundaries of the political that Professor Heyd would seek to keep intact. The civil rights legislation enacted in the wake of nationwide mobilization contributed to this pattern. Through constitutional, federal, and state law, entitlements to resources, and to public and private opportunities, have been secured for members of historically and presently disadvantaged groups. The provision of “set-asides” for minority business contractors, the requirement of accommodation under such statutes as the Americans with Disabilities Act, and the entitlement to temporary public assistance under the recent welfare reform statute, are only a few examples. In each of these areas, we find legions of public and quasi-public actors concerned with implementation, whose attitudes toward those differences they encounter have major implications for the meaning of equality in their respective domains. The attitude of the welfare worker toward non-nuclear families, or the educational or employment specialist toward dyslexia or alcoholism, contributes as meaningfully to the elaboration of “equality” as the formal decisions of judges or legislators. In addition, the ongoing social and cultural negotiations over the content of these statutory categories, and the legitimacy of the assistance that follows from them, have been an integral part of the process of giving meaning to formal guarantees that aim to produce equality in this society.
Thus, occasions for the operation of tolerance—even the forbearant tolerance espoused by Professor Heyd—exist within formal institutions of government, among the legions of quasi-public officials who implement the projects of the administrative state, and among the private citizens whose discussions and mobilizations both instigate and give concrete meaning to governmental action. It is in all these senses that toleration is, to my mind, a “political” virtue. Toleration would also appear to be required by the conceptual framework of egalitarian democracies, and necessary to their functioning, which would make it an obligatory rather than a supererogatory practice. But the answer to that question—which I will not fully engage in this comment—may become clearer as I elaborate the conception of tolerance that seems most appropriate to this form of polity.
The conditions of contemporary, egalitarian democracies (such as that of the United States) lead me to question not only Professor Heyd’s view of the “political,” but his conception of toleration itself. The institutional, attitudinal, and cultural changes heralded by the rise of equality as a public value have not made toleration obsolete, so much as they have rendered Professor Heyd’s distinctive, forbearant form of toleration insufficient. One way that we can gauge this inadequacy is by considering the dissatisfaction with forbearant toleration on the part of those toward whom it is directed.
In his earlier work, Professor Heyd appears to discount the perspective of the tolerated in assessing the value of his particular account of tolerance. He notes that “people do not like to be tolerated because toleration is only partial acceptance, the acceptance of the right of a person to lead a certain life or entertain certain beliefs; it does not extend to the practices or beliefs themselves.”15 In a more specific reference to the perspectival shift reflected in his particular theory, Professor Heyd adds that:
the asymmetry between the tolerant and the tolerated on this matter can be explained by the fact that the subject of the beliefs or the agents of the practices in question find it harder to make the perspectival shift because they identify with their beliefs and practices in a much stronger way.16
But both the suggestion that the tolerated are inevitably dissatisfied with tolerance, and the implication that this dissatisfaction provides no reason for rejecting a particular understanding of tolerance seem to me to demand closer consideration. Although neither Professor Heyd’s genealogy of tolerance, nor his affirmative account stress the relational character or goals of toleration,17 other accounts of toleration find its justification in the relations it establishes between fellow citizens. T. M. Scanlon, for example, argues that we should value toleration because it “involves a more attractive, appealing relation between opposing groups in society”18 and because “rejecting it involves a form of alienation from one’s fellow citizens.”19 If these positive relations, which arise from some form of valuation of the tolerated, are not achieved, there may be reason to doubt the adequacy of the practice. Moreover, the impatience of the tolerated with the forbearant version of tolerance cannot simply be discounted as a constant. Even Professor Heyd, in discussing the impatience of minorities with toleration, acknowledges this development as a particular feature of egalitarian democracies in the late 20th century.20 And it is possible to identify more particularized reasons for the growth of such dissatisfaction in contemporary egalitarian democracies.
First, the identification of the individual subject with his beliefs or cultural practices, which Professor Heyd sees as complicating the tolerated subject’s appreciation of forbearant tolerance, has intensified dramatically in the contemporary period. This development has been fueled, in general terms, by the advent of “identity politics”: in our political culture, the growing salience of group membership to individual identity has led us to view practices and opinions, which we might formerly have said we held or engaged in, as an integral part of who we are.21 This identification of individual subjects with beliefs or practices distinctive to their group has also been fueled by a legal framework for the vindication of equality that makes one’s claim to equal resources or opportunities dependent on one’s membership in a protected category or group, or a conceptual analogue to a protected category or group.22 The partial displacement of reductive versions of identity politics by complex accounts of contingent social formation has not arrested this trend. It has often produced a sense of individual identification with a broader—if more variable and contingent—range of practices and opinions, even as it has complicated or attenuated the notion of autonomy that has served as a second-order justification for restraint.23 Both this complication of liberal understandings of autonomy, and the increasing difficulty of distinguishing the subject from his beliefs or practices may make forbearant tolerance unsatisfying or incoherent for the tolerator as well as the tolerated.
Beyond the difficulties associated with Professor Heyd’s distinctive perceptual shift, the forbearant posture itself may seem gratingly inadequate in egalitarian democracies. Forbearant tolerance secures insulation from interference; but citizens in egalitarian democracies may find non-interference, which speaks to liberty or autonomy, a poor substitute for the recognition that is perceived as being more directly related to equality. This point was made clear in a telling example, involving minority religious practices during that most dominant and public of religious celebrations, the Christmas holiday. In a New Year’s installment of Aaron McGruder’s Boondocks strip, the main character bemoaned the mainstream treatment of Kwaanza. He sighed: “Another Kwaanza has come. Spurned. Forgotten. Existing just outside the public eye. We all know it’s there, but nobody wants to acknowledge it. It’s the Essie May Washington of holidays.” The analogy to Strom Thurmond’s African-American daughter, whom he supported personally and financially, but whom he failed to acknowledge publicly because of her race, is a telling one. Autonomy is one thing, but visibility or public acknowledgment, is another.24 What is significant about this lament is that it takes place in a context of meticulous non-interference. No government official or private actor has challenged, or proposed to interfere with, the celebration of Kwanzaa. Yet that non-interference is thin gruel for McGruder’s character, who synonymizes being “spurned” with “exist[ing] just outside the public eye.” For him, equality requires public recognition of, or engagement with, his observances or beliefs. It is useful to consider why.
In his essay, “The Politics of Recognition,” Charles Taylor offers a historical explanation. With the collapse of social hierarchies ushered in by political modernity, the “honor” associated with distinctive locations in that hierarchy was replaced in two ways.25 First, it was replaced by universalist notions of “equal dignity,” which have found contemporary expression in the non-discrimination principle, or the protection of political and civil rights. Second, as notions of identity associated with social role or status gave way to notions of individualized identity associated with the ideal of “authenticity,” modern culture experienced a turn toward inwardness, subjectivity and particularity. This movement has found its contemporary expression in a “politics of difference,” in which claims to equality are satisfied not by universal rights but by public recognition of the particularity or unique identity of an individual or group. The need, and consequently the demand, for recognition as a political tribute to equality arises in part from the insecurity created by the collapse of durable social categories. Taylor explains:
General recognition was build into the socially derived identity by virtue of the very fact that it was based on social categories that everyone took for granted. Yet inwardly derived, personal, original identity doesn’t enjoy this recognition a priori. It has to win it through exchange, and the attempt can fail. … This is why the need [for recognition] is now acknowledged publicly for the first time. In premodern times, people didn’t speak of “identity” or “recognition”—not because people didn’t have … identities or depend on recognition, but rather because these were too un-problematic to be thematized as such.26
But the demand for public recognition of difference also responds to the homogenizing tendencies of contemporary democracies. “It is precisely [the unique identity of this individual or group] that is being ignored, glossed over, assimilated to a dominant or majority identity. And this assimilation is the cardinal sin against the ideal of authenticity.”27
This latter point is given a more pragmatic and power-sensitive gloss in a recent essay by Anne Phillips.28 Phillips suggests that the need for public recognition and acknowledgment of difference arises from an experientially grounded sophistication, particularly among relatively disempowered groups in egalitarian societies, about the varied and subtle forms that inequality may assume. For sexual and religious minorities, Phillips observes, social and political invisibility has often been the price exacted for decriminalization or non-interference:
The decriminalization of homosexuality, for example, redefined sexual preference as a matter of private variation, but this carried with it an implicit warning the homosexuality should not be too public. Those who happily tolerate their unassuming gay neighbour may still object violently to the high-profile activist who “flaunts” his sexuality in public. … The toleration was offered at a price and keeping things private was part of the deal.29
This price has been assailed as conspicuous and burdensome, for example in United States’ “Don’t Ask, Don’t Tell” policy toward gays and lesbians in the military. As Phillips concludes: “The dispensation offered to homosexual falls distinctly short of what is taken for granted by the heterosexual majority, and the dispensation offered to cultural and religious minorities strikes many of them as unfair as well.”30 Members of minority groups or cultures have also chafed at the subtle non-neutrality of the “liberal resolution of difference.”31 This approach, Phillips notes:
[served] as the basis for assimilating a plurality of ethnic groups into a unified citizenship: what Joseph Raz describes as “letting minorities conduct themselves as they wish without being criminalized, so long as they do not interfere with the culture of the majority.” … The hands-off toleration that relegates difference to the private sphere leaves the presumptions of the host culture untouched, and all the adjustment is then one-way. This asymmetry of treatment falls considerably short of equal treatment; the liberal resolution of difference has not been as even handed as it claims.32
The dispensation to take part in particular practices at the sufferance (figuratively and literally) of government officials and fellow citizens, which arises from a principled commitment to autonomy, does not fully respond to contemporary aspirations for equality. To fulfill these perceived needs requires a form of toleration that more explicitly acknowledges and engages dissonant or minority opinions, practices, or cultures. It is to this more engaged form of toleration that I now turn.
What I will refer to as “engaged toleration” is a practice that helps citizens acknowledge, investigate, and learn from the range of group-based differences, and corresponding inequalities, that are present in many contemporary, pluralist democracies. As such, it is broader in scope than the form of toleration described by Professor Heyd. It applies not only to those opinions, acts, or group practices that the tolerator finds to be immoral, but also those that the tolerator finds to be erroneous, inappropriate, distasteful, or inapproachably “other.” Engaged toleration may also apply to acts, opinions, or practices as to which the tolerator is indifferent or has formed no opinion, but substantial segments of society judge to be immoral, inappropriate, or distasteful. Like Professor Heyd’s forbearant toleration, engaged toleration also begins with a cognitive shift: the tolerator disengages herself from her own moral or normative frame, and its implied negative judgment of the tolerated. But instead of shifting the focus to the tolerated agent, the tolerator shifts her focus to the moral or normative frame underlying the opinion, act, or practice in question.33 The goal of engaged tolerance is, first, to understand the opinion or practice on its own terms, and second, to reflect on the implications it may have for the tolerator’s own moral, normative, or intuitive frame.
This conception of toleration is not unprecedented in the literature. It has antecedents in the suggestion of John Horton, for example, that toleration implies not only forbearance from acting on one’s moral disapproval, but “narrowing the range of what is considered objectionable.”34 Elements of this understanding are also previewed in Jonathan Wolff’s distinction between “grudging toleration,” which might be described as a pragmatic embrace of forbearance and “accommodative toleration,” in which the tolerator seeks to take in the understandings underlying a dissonant practice and reflect on the light they shed on his culture’s dominant practices. The equality-respecting elements of this formulation, in particular, are previewed by T. M. Scanlon’s view of tolerance. In Scanlon’s view, tolerance reflects the judgment that “all members of society are equally entitled to be taken into account in determining what our society is and equally entitled to participate in determining what it will be in the future”;35 moreover it demands that citizens, and governments contemplating interference with group-based actions or practices ask “the question of accommodation”: “are there other ways, not damaging to the system of tolerance, in which respect for the threatened group could be demonstrated?”36
Professor Heyd has, himself, responded to forms of toleration that seek to enter into the normative frame of the tolerated. In discussing Peter Gardner’s approach, which emphasizes “open-mindedness, critical skepticism, the power of deliberation and the willingness to change one’s mind,”37 Professor Heyd observes:
Gardner’s conception of toleration definitely accords with everyday usage of the term. However, it does not capture the most difficult and demanding contexts in which toleration is called for (and considered intrinsically valuable). It tends to blur the boundaries between tolerance, on the one hand, and open-mindedness, critical skepticism and moderate judgment, on the other. It does not do justice to the suffering of the tolerator, the price of restraint and the effort involved in it.38
To my mind, this criticism underestimates the moral and intellectual effort required by more active forms of toleration. I will try to spell out my differences with Professor Heyd, on this count, by elaborating two of the virtues most strongly associated with engaged toleration. Whether either of these associated virtues, or indeed toleration itself, constitutes a virtue, in the Aristotelian sense preferred by Professor Heyd,39 may be subject to dispute.40 But one must acknowledge that all are attributes of character, capable of being described as means between more extreme forms of human behavior, and supported by conditioning and practice. Moreover, each is an effortful undertaking—a far cry from a simple admonition to proceed gently in relation to difference. By illuminating these associated virtues, which typify and support toleration, I hope to specify with more particularity both the operation of engaged tolerance and its particular challenges.
The first such virtue is curiosity. I first learned about the full meaning of curiosity in a superb essay by Joan Nestle called “The Fem Question.”41 In that essay, she arrestingly described curiosity as “the respect one life pays to another,”42 and she illustrated how such curiosity might operate in investigating a specific practice: the embrace of butch/fem roles, which are both privately assimilated and publicly performed, by a subset of lesbians in relationship. Nestle observes that such roles are frequently misunderstood, particularly that of the fem who is popularly viewed as comparable to a “straight woman who is not a feminist.”43 These assumptions subject butch/fem lesbians to a range of intolerant behaviors, from street harassment, to police raids on bars that are particularly identified with the group, to uninformed assertions about the meaning of the practice, or the nature of the identities involved. Nestle invites readers to disengage themselves from their preconceptions—that is, their intuitive normative frame—and investigate this practice, with the curiosity that another life deserves. This means understanding the history of the practice; the shifts or alterations in its manifestations over time; the way its roles are understood by participants, in a variety of contexts; and the way that these self-understandings vary from the understandings frequently ascribed to practitioners by those outside the group. Curiosity of this sort involves a genuine eagerness to know about life in all of its permutations, and an intellectual persistence or rigor in identifying and asking the questions that will reveal a given practice in its historical context and in its full complexity. It involves a commitment to investigation, discovery, and self-education that is, at least temporarily, greater than one’s commitment to the idea that she already knows what is present in the practice in question.
This last condition points to a second, related, virtue involved in engaged tolerance: the virtue of humility. The way that humility functions in engaged toleration is nicely illustrated by Charles Taylor in his essay “The Politics of Recognition.” Taylor takes his bearings from a statement often ascribed to Saul Bellow that “when the Zulus produce a Tolstoy, then we will read him.”44 This perspective may not be intolerant in the sense envisioned by Professor Heyd: Bellow is not proposing to interfere with the artistic production of Zulu authors. But it is intolerant in at least two senses underscored by my discussion of egalitarian democracies. First, because this kind of judgment often informs curricular decisions at major universities, it contributes to the denial of visibility or recognition to the ostensibly non-Tolstoyesque works of Zulu authors. Second, it judges those works unworthy without fully reflecting on the metric that should be applied in assessing them. Taylor focuses on this second difficulty, arguing that Bellow displayed an unacceptable cultural arrogance in assuming that a work of value from the Zulu culture would or could have the characteristics that distinguish Tolstoy, and that those are the characteristics by which any work should be judged. Instead, Taylor argues, readers should pay tribute to the presumptive equality of cultures by assuming that they are capable of producing works of enduring value, and committing themselves to learn enough about works from unfamiliar cultures to determine whether they supply additional criteria that we should utilize in forming our metric of value. This, according to Taylor, involves an openness to a Gadamerian “fusion of horizons,”45 in which we do not assume the completeness of our own evaluative frame, but inquire into how it might be modified by the introduction of features of another, less familiar frame. Speaking of the attribute(s) required by this effort, Taylor states:
. . . what the presumption [of equality among cultures] requires of us is not peremptory and inauthentic judgments of equal value, but a willingness to be open to the comparative cultural study of the kind that must displace our horizons in resulting fusions. What it requires above all is an admission that we are very far away from that ultimate horizon from which the relative worth of different cultures might be evident.46
Although the foregoing examples foreground aesthetic judgments and intuitive or political judgments about sexuality, the humility and curiosity integral to engaged toleration can be applied in contexts involving moral judgment as well. Leslye Obiora’s excellent essay on female genital cutting, “Brides and Barricades: Rethinking Polemics and Intransigence in the Campaign Against Female Circumcision”47 is a case in point. Obiora, an African feminist living and writing in the United States, exhorts Western feminists to both humility and curiosity in the face of these practices: she invites them to investigate such practices as they are understood by dominant African cultures and by the women involved, before formulating a normative approach to addressing them. After a Neslean investigation of history, cultural context, variations in the practice and in the meanings assigned to it, Obiora does not shy from the construction, or reconstruction, of a normative frame. But her proposed framework seeks to produce an integration of, or accommodation among, the priority placed by Western feminists on women’s autonomy and bodily integrity, the values placed by some African women on the preservation of their cultural practices and on the ritualization of female identification within those practices, and the norms advanced by NGOs concerning the health risks of some forms of cutting. This reconstructed frame leads Obiora to endorse some limited forms of the practice, conducted under conditions designed to protect the health of the women involved, and to reject the practice in its more extreme and health-threatening manifestations. She proposes that advocacy along these lines be conducted by a coalition of Western feminists newly involved with this practice, and African women already engaged in work on this issue.
Obiora’s analytic progression underscores several features of engaged tolerance.48 First, the investigation of the historical, contextual, and normative basis of a contested practice is aimed not simply at achieving greater understanding of the practice, or at achieving the dialogic ventilation that offers a form of recognition to members of minority groups, although it may achieve both of these objectives. The exploration characteristic of engaged tolerance is also, and perhaps more importantly, aimed at shedding potentially critical or transformative light on the normative frame that produced the initial negative judgment. That process of illumination may or may not succeed in producing a transformation, and may or may not produce the related policy outcomes that members of the tolerated group seek. After such inquiry tolerators may conclude that the unfamiliar norms diverge too sharply to be reconciled in any meaningful way with their own normative framework;49 this is a conclusion, for example, that even some of the most inquisitive interlocutors have reached concerning the controversy over abortion.50 Or tolerators may succeed in at least partially modifying their normative frame, yet discover that implementing their reconstructed vision is difficult in practice; those who have sought to integrate works from a variety of cultures into Great Books programs, for example, have sometimes encountered this difficulty.51 It is also possible that tolerators may pursue the implementation of a modified normative framework in directions that the tolerated did not propose or anticipate.52 This indeterminacy of substantive outcome is a feature which may distinguish engaged tolerance from its forbearant counterpart. Though proponents of such an account of toleration might differ on this element, I would suggest that what it requires is a thoroughgoing effort to disengage from one’s own normative framework, inquire deeply into another’s, and strive—where it is required, for example, by practical or policy conflicts—to develop some accommodation or integration between them.53 In this respect, as well as others,54 engaged toleration may also be distinguished from full embrace of difference; the failures of integration, practical accommodation, or even thoroughgoing comprehension in investigation, that are always possible may lead members of tolerated groups to feel that they have not received their due. But it is a form of accommodation between one’s normative commitments and the dissonant practices55 that one is likely to encounter in a pluralist society that pays appropriate tribute to the ascendant value of equality. It signals to its objects that they are, as Scanlon suggests, “equally entitled to be taken into account in determining what our society is.” It offers sought-after visibility, and casts the light of dialogic contestation, on the practices and identities of a variety of individuals and group members.
In this comment, I have disputed Professor Heyd’s claim that toleration is a non-political practice, and challenged the adequacy, in contemporary egalitarian democracies, of his “forbearant” version of toleration. However, I find in his account of tolerance elements integral to the “engaged” account of tolerance that I have attempted to develop here. The notion of tolerance as entailing a perceptual shift, a disengagement or dis-orientation from one’s normative frame, is integral to both accounts; and the practice of shifting one’s focus from normative condemnation of an act to respect for the autonomy of the agent may, in fact, prepare citizens for the practice of shifting their focus from their own normative frame to that of a less familiar individual or group. Moreover, the “second-order” character of forbearant toleration—the requirement that one redirect one’s initial normative response in deference to a second-order value—is a feature that unites both accounts, though Professor Heyd envisions tolerators as responding to the value of autonomy, while I see them as paying tribute to the value of equality. In this sense, Professor Heyd’s account of toleration might indeed be described as transitional, if not to a post-tolerant regime of acceptance, then to a form of toleration premised on the equality of citizens.
1. I should mention that this issue has been ameliorated to some degree in the latest version of Professor Heyd’s chapter. While the draft on which I originally commented included only a handful of examples, most relating to religious minorities and one involving a decision not to summon the police in the face of a noisy party, the latest version also includes a discussion of female circumcision and a more extended consideration of the practice of avoiding driving in orthodox Jewish neighborhoods during the Sabbath.
2. For examples of anthologies that reflect (predominantly, though not exclusively) these distinct emphases, compare David Heyd, ed., Toleration: An Elusive Virtue (Princeton: Princeton University Press, 1996) with Catriona MacKinnon and Dario Castiglione, eds., The Culture of Toleration in Diverse Societies (Manchester: Manchester University Press, 2003).
3. This definition comes from David Heyd, “Education to Toleration: Some Philosophical Obstacles and Their Resolution,” eds. Catriona MacKinnon and Dario Castiglione, The Culture of Toleration in Diverse Societies, 197. In this comment, I will sometimes make use of discussions from Professor Heyd’s other recent work on toleration to flesh out the “forbearant” conception, as I understand it to be substantially in accord with the arguments in his chapter in this volume.
4. David Heyd, “Is Toleration a Political Virtue?” 185.
5. David Heyd, “Education for Toleration: Some Philosophical Obstacles and Their Resolution,” Catriona MacKinnon and Dario Castiglione, eds., The Culture of Toleration in Diverse Societies, 199.
6. “Is Toleration a Political Virtue?” 175.
7. Ibid., 177–78.
8. As Professor Heyd explains, “the issue of Muslim female students wearing headscarves in French state schools is not really a matter of toleration but a question of the correct interpretation of constitutional principles … only the way in which this religious practice is viewed by non-Muslim French citizens (rather than the state) may involve toleration.” Ibid., 178.
9. Ibid., 175.
10. Ibid., 172.
11. Ibid., 175.
12. Ibid.
13. Furthermore, it may be useful to elaborate a point that seems implicit, if not explicit in Professor Sabl’s analysis: to the extent that democratic governments remain “limited”—that is, that they reflect restraint in defining the domain of prohibition—the attitudes and responses described above play a comparatively larger role in defining individuals’ freedoms and shaping their expectations. When the federal government, in its effectuation of constitutional rights, declines to intervene in the provision of abortion services, groups such as Operation Rescue enter this hiatus to offer moral objection and “sidewalk counseling.” Their action is not the action of the state, but it is central to the experience of women in negotiating their reproductive rights, and central to what most of us would call political contestation over the reproductive choice, and ultimately, the equality of women. This complex and vexing debate does not become political simply when clinics seek to enjoin such actions and the matter winds up in federal court, or a state legislature.
14. The injunction to “love the sinner, hate the sin” that informed many of these tactics has interesting parallels to Professor Heyd’s perspectival shift.
15. David Heyd, “Introduction,” David Heyd, ed., Toleration: An Elusive Virtue, 16.
16. Ibid.
17. Professor Heyd’s examples tend to emphasize the pragmatic justifications (as in toleration among the early Christian sects), or normative justifications that involve some quality to be cultivated in the tolerator (caritas, Christlike magnanimity) or, secondarily, some quality to be recognized in the tolerated (autonomy). They do not appear to draw justification from a relation that toleration fosters or recognizes between the tolerator and the tolerated.
18. T. M. Scanlon, The Difficulty of Tolerance, David Heyd, ed., Tolerance: An Elusive Virtue, 231.
19. Ibid.
20. “Is Toleration a Political Virtue?” 175.
21. An interesting example of this commitment to the confluence of act or practice and subjectivity or identity may be seen in the rise of queer activism. As illustrated, for example by Michael Warner’s recent work The Trouble with Normal, queer theorists and activists protest the tendency of mainstream advocacy organizations to separate gay and lesbian identity from the sexual practices with which it is commonly associated. See Michael Warner, The Trouble with Normal (Durham: Duke University Press, 1999), 41–80.
22. This feature of contemporary egalitarian democracies has been critiqued, perhaps most compellingly by Wendy Brown, who argues that it leads subjects to hold fast even to identities constructed predominantly around an injury or a sense of oneself as injured. See Wendy Brown, Wounded Attachments in States of Injury (Princeton: Princeton University Press, 1995), 52–76. My point, however, is not to defend the normative value of such identification, but to concur in its descriptive prevalence.
23. See, e.g., Kathryn Abrams, “From Autonomy to Agency: Feminist Perspectives on Self-Direction,” William and Mary Law Review 40 (1999): 805–46.
24. Interestingly, this sentiment had been echoed during the same holiday season by my then-seven-year-old daughter. I had overheard her leafing through the holiday editions of several mail order catalogues, muttering to herself, “No Hanukkah, no menorahs, no Jews.” After a while, she shook her head, and said to me—without McGruder’s astringent irony but with the same sense of ill treatment—“why don’t the Christians like us?”
25. See Charles Taylor, The Politics of Recognition, Amy Gutmann, ed., Multiculturalism and the Politics and Recognition (Princeton: Princeton University Press, 1992), 25–40.
26. Taylor, The Politics of Recognition, 35.
27. Ibid., 38.
28. See Anne Phillips, “The Politicisation of Difference: Does This Make for a More Intolerant Society?” John Horton and Susan Mendus, eds., Toleration, Identity and Difference (New York: Palgrave, 1999), 126–45.
29. Ibid., 127.
30. Ibid.
31. Ibid.
32. Ibid., 127–28. George Fletcher also argues that an asymmetry or non-reciprocity to arrangements of tolerance for sexual minorities make acceptance or recognition a more attractive option than forbearant toleration: gays and lesbians, under conditions of tolerance, accept the sexual proclivities of their heterosexual counterparts but are granted only forbearance in return. See George Fletcher, “The Instability of Tolerance,” David Heyd, ed., Toleration: An Elusive Virtue, 120–21. This assimilative version of equality has been contested, for example, by women in professional workplaces, who perceived that they were admitted under assumptions that left the pre-existing culture—with its androcentric metrics of achievement, and its inflexibility in accommodating parenting responsibilities—unaffected.
33. Whereas Heyd argues that the perspective shift implicit in his form of toleration as analogous to “the suspension of disbelief” (186), I might argue that the perspective shift entailed by engaged toleration can be described as a “suspension of belief”—a distancing of the tolerator from his or her own normative framework, in preparation for entering fully into the normative framework or perspective of another—which would seem to me to be at least as strenuous as shifting from an act-centered to an agent-centered perspective.
In practicing engaged toleration, one does not tolerate others simply out of respect for them as unmarked, autonomous agents. One tolerates and respects them not in a universal, but in a particularized way, as subjects with specific identities or affiliations constituted by group membership, collective acts or shared opinions; and one demonstrates that respect by inquiring into that membership and those acts. See my discussion of curiosity, infra. In the most recent version of his essay, Professor Heyd has moved slightly in the direction of tolerance as reflecting interest in or respect for particularity, rather than simply for human agency. His discussion of female circumcision (187), reflects an awareness of or interest in the effects of culture on the choices of individuals, and his discussion of the value of avoiding driving in orthodox neighborhoods during the Sabbath reflects awareness of the meaning of such intrusion on the observance of orthodox Jews, an appreciation of the “sincer[ity]” of their faith. However, I would distinguish the limited acknowledgment of the particularized lives of the tolerated that emerges in Professor Heyd’s essay from the more thoroughgoing examination one might find, for example, works such as Debra Renee Kaufman’s Rachel’s Daughters: Newly-Orthodox Jewish Women (New Brunswick, NJ: Rutgers University Press, 1991), which examines the embrace of orthodox Judaism by adult women. This exploration is aimed not only at understanding the lives and choices of these women (through an elaborate set of interviews), but at scrutinizing the assumption of many secular women—including, initially, the author—that orthodox women must have little interest in their own equality with men. To my mind, this book typifies the spirit of engaged toleration, as it reflects the author’s effort to suspend her own normative commitments in order to enter fully into those of a different group, which leads in turn to her own critical reflection on her initial opinions or assumptions.
34. John Horton, “Toleration as a Virtue,” David Heyd, ed., Toleration: An Elusive Virtue, 38.
35. T. M. Scanlon, “The Difficulty of Tolerance,” David Heyd, ed., Toleration: An Elusive Virtue, 229.
36. Ibid., 237. The contention, which underlies my view of engaged tolerance, that minorities or disempowered groups in egalitarian democracies require not simply the autonomy to conduct their lives as they please but the affirmation implicit in visibility and recognition, is also prominent in the work of Anne Phillips which I cited earlier. Interestingly, however, Phillips adheres to a more traditional forbearant notion of toleration, and describes the “politicization of difference” that she endorses as something beyond tolerance. See Anne Phillips, “The Politicisation of Difference,” John Horton and Susan Mendus, eds., Toleration, Identity and Difference, 126.
37. David Heyd, “Education to Toleration: Some Philosophical Obstacles and Their Resolution,” 204.
38. Ibid.
39. “Is Toleration a Political Virtue?” 183.
40. I would argue that engaged toleration meets several of the criteria he sets forth: it can readily be described as an attribute of character; it reflects a kind of mean, between rigid insistence on and wanton abandonment of one’s own normative perspective; it is supported by practice and habituation—indeed exhorting individuals to such practice is one of the goals of the emerging literature on this form of toleration.
41. Joan Nestle, “The Fem Question,” Carole Vance, ed., Pleasure and Danger: Exploring Female Sexuality, 2nd Edition (Boston: Routledge, 1992), 232.
42. Ibid., 234.
43. Ibid., 236.
44. Charles Taylor, “The Politics of Recognition,” Amy Gutmann, ed., Multiculturalism and the Politics of Recognition, 71.
45. Ibid., 67.
46. Ibid., 73.
47. L. Amede Obiora, “Brides and Barricades: Rethinking Polemics and Intransigence in the Campaign Against Female Circumcision,” Case W. L. Rev. 47 (1997), 275.
48. In this discussion, I have focused, and will focus, exclusively on toleration as it is practiced in engagements among individuals and groups. As I have argued above, I consider such engagement to be importantly political, both when they are undertaken by lay citizens and when they are undertaken by individuals acting in their capacities as governmental or quasi-governmental agents. What this discussion does not consider is what the formal (e.g., legislative or judicial) organs of government might do to implement or foster engaged toleration, although this seems to me a valuable subject for future inquiry.
49. Jonathan Wolff refers to something similar to this outcome (“being prepared to consider accommodation but finding that this is not possible without ‘too much’ revision”) “reasoned intolerance,” see Jonathan Wolff, “Social Ethos and the Dynamics of Toleration,” Catriona MacKinnon and Dario Castiglione, eds., The Culture of Toleration in Diverse Societies, 157. To my mind, this is a misnomer, because, as I note below, I see the practice of engaged toleration as consisting primarily in the process of disengaging from one’s own normative frame, inquiring deeply into another’s, and attempting some integration or reconciliation. No particular outcome is assured (or perhaps one might say a range of possible outcomes, or not at all, could be treated as definitive by proponent of this view), an understanding which is perhaps distinct from that involved in forbearant tolerance.
50. For an example of such an engaged, tolerant interaction which nonetheless does not lead to a thoroughgoing convergence of views among participants, see Sidney Callahan and Daniel Callahan, eds., Abortion: Understanding Differences (New York: Plenum Press, 1984). My reference to particular examples here is not intended to indicate that the specific practices of engaged toleration that I have proposed have been applied to these cases; my point is to propose that they might be, and to suggest that some features of investigating the normative frame of another may have been undertaken in these cases, with a variety of results.
51. For a thoughtful discussion of this controversy, including practical aspects of the challenge, see Amy Gutmann, “Introduction,” Amy Gutmann, ed., Multiculturalism and the Politics of Recognition, 13–24.
52. This may be the best way to characterize Obiora’s limited endorsement of some practices of female genital cutting. Another example is provided by T. M. Scanlon, who discusses the example of Muslims in Britain, who did not initially support the Ayatollah Khomeini’s edict against the Satanic Verses, but felt compelled to support it because of what they perceived as more generalized intolerance toward Muslims in Britain. See T. M. Scanlon, “The Difficulty of Tolerance,” David Heyd, ed., Toleration: An Elusive Virtue, 239 n. 9. An accommodation by the British government which resulted in a rejection of the Ayatollah’s edict, but improved treatment of Muslims (e.g., the modification of British blasphemy laws to protect Islam as well as Christianity, which they did not at that time) might reflect this kind of outcome as well.
53. In this choice, I believe that I subscribe to roughly the view expressed by Charles Taylor above, although he does not explicitly identify the practice he describes as a form of toleration.
54. Engaged toleration may also be distinct from acceptance in that some theorists describe acceptance as a “first-order attitude.” See George Fletcher, “The Instability of Tolerance,” David Heyd, ed., Toleration: An Elusive Virtue, 159 (describing respect, which is used interchangeably with acceptance, as a “first-order attitude”). I am puzzled by the suggestion that thoroughgoing acceptance, in a political culture that is infused in many ways with suspicion of difference, could be a “simple, first-order attitude”; but it seems clear to me that engaged toleration, like forbearant toleration is a practice in which “the tolerant decide … not to follow their first-order instincts.” Ibid.
55. Although I do not share Professor Heyd’s inclination to focus on the suffering of the tolerator as a defining characteristic of tolerance—I see the determinative criteria for tolerance in egalitarian regimes as more properly focused on the cognitive or accommodative relation between the normative system of the tolerator and that of the tolerated—I have little doubt that this understanding of tolerance would produce its share of suffering in those attempting it. As Professor Heyd acknowledges, his account of toleration requires the tolerator to shift his focus away from his moral commitments, but it does not require any weakening of certainty about those commitments. See David Heyd, “Introduction,” David Heyd, ed., Toleration: An Elusive Virtue, 15. Engaged tolerance—as my discussion of humility, and the work of Charles Taylor suggest—requires precisely that weakening of certainty, as a predicate for the cognitive shift from one normative frame to another, and as a predicate for the effort at normative revision or reconstruction. This weakening of certainty is likely to produce substantial suffering in many of those who attempt it.