On Toleration Marlene Guraieb May, 2011 Abstract

The concept and value of toleration has been the subject of lively discussion in contemporary democratic theory. This paper examines different conceptions of toleration and suggests that they are linked both with the value of autonomy and with an epistemological conception of the individual and its identity. Once linked to the value of autonomy, toleration becomes problematic because in defies the neutrality of the state defended by certain liberal schools. On the other hand, when it is backed up by a conception of the person it has important considerations for the type of toleration advocated and the operation of it. In addition to this problem, this work examines the paradox of toleration and its solution through a kind of liberal perfectionism that recognizes within itself the demands made upon the citizen to belong to a polity of this type.

Table of Contents

I. II. III. IV. V. VI. VII.

Introduction ......................................................................................................... 3 Toleration: a definition....................................................................................... 9 Traditional Liberal arguments on the defense of toleration ...........................12 Rawls I: A Theory of Justice............................................................................. 17 Rawls II: Political Liberalism............................................................................ 36 Sandels Critique.............................................................................................. 53 Communitarianism and republicanism ........................................................ 64 Conclusions: Agonism, perfectionism, and liberal faith .............................. 71

VIII.

Bibliography...............................................................................................................75

I. Introduction
The project The format of this introduction is taken from Kymlickas book on contemporary political philosophy (Kymlicka, 1995). I have used it because I find it both useful and intellectually honest to state the purpose of an investigation beforehand. As such, this introduction has two parts: one where I intend to explain my motives and the scope of the present research; and a second one devoted to methodology. About the subject. The centrality of toleration in public opinion ebbs and flows with historical times. Even if it has almost always been a relevant topic for political philosophers, its appearance in colloquial public debate depends on the historical circumstances. The reformation and the subsequent pulverization of Christianitys nucleus almost certainly made it a hot topic in the seventeenth century; similarly, the recent contact that western liberal democracies have had with Islam (particularly its fundamentalist part) has rekindled interest in the topic. The subject of toleration is captivating in many different ways. In public opinion it catches our eye because it determines our relationship with others, but also because it comes about when we come into contact with the unknown; that which naturally attracts our attention. Within the context of political philosophy, the subject is even more captivating, for it involves people as much as it does ideas; it involves rights as much as it does identity.

Toleration is also central to the ideas that have shaped western liberal democracies. In an article about the neutrality of the state, Brian Barry (1990) argues that the heart of the first liberal states consisted on the edification of three basic institutions: freedom of belief, freedom of the press and the abolition of servile status. According to the author, in the modern State these three institutions have evolved to become in the case of religious toleration, the harm principle; in the case of freedom of the press, freedom of speech in a more general context; and, in the case of the abolition of servile status, the concept of equal citizenship for all people. In this way, Barry offers a definition of the central institutions of liberal states placing them as necessary conditions for its existence. For the construction of these institutions, toleration is paramount in at least two of them, placing the issue in a central position within the liberal agenda. This project aims to contrast two different views on the value of toleration. The first one is derived naturally from Rawlss work and shares a particular conception of the individual. The second group of views consists of diverse theories that do not agree with the Rawlsian interpretation of the individual as a unit separable from its parts. In this group I will include communitarian as well as republican thinkers for I believe that they have a similar view when it comes to the subject matter of this investigation. The final aim of this project is to show, through the revision of differences between both views that, ultimately, the defense of the value of toleration rests completely on a commitment to the value of autonomy that both views end up relating to in different ways. Also, this project will aim to show that the value of

neutrality, and the commitment that some parts of the liberal tradition have decided to confer on it run on a parallel track with the defense of toleration that they end up endorsing. With respect to autonomy, its centrality in the edifice of most contemporary political theories raises serious questions about the commitment to perfection inherent in democracies, as well as the defense of neutrality that has been straightforwardly advanced by the liberal theorists. In the conclusions of this work, I intend to sketch the questions left open from this analysis as well as a possible direction that the solution to these questions might take. A note on method First of all, an apology: this work is full of labels. I believe that all of them are, to a certain degree, inaccurate. However, an investigation of this nature has to be started by placing concepts in opposing positions, by labeling and ordering a collection of chaotic ideas, by comparing and contrasting thinkers. In many ways, the central dichotomy that I will use to advance this work is the liberal non-liberal divide. It may be one of the most problematic to sustain and one of the most useful at the same time. With the full knowledge that it is profoundly reductionist, I label an idea a liberal one when it conceives of people as individuals that are fully separable from their communities, identities and beliefs. I label non-liberal the ideas that (to any extent) question this view and contend that some part of a person is formed within the community and cannot be separated from it. Given this proposed taxonomy, Rawls work is central in the advancement of the arguments put forth.
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The work of John Rawls represents a turning point not only in liberal theory but in all normative political science in the twentieth century. In some way or another, any scholar that adds to the body of liberalism in political theory has to establish a dialogue with Rawls; pinpoint his position relative to Rawlss. In the same way, critics of liberalism have to take Rawlss arguments head on. The question about the value of toleration and its operation in a political environment is no exception. In fact, the centrality of toleration in the liberal edifice makes Rawlss work even more relevant to the discussion. If we endorse Barrys distillation of liberalism (Barry, 1990) and agree that these three basic institutions are the pillars of liberalism, it is not surprising that out of all of Rawlss critics after A Theory of Justice he only chose to respond to the issue of the treatment of political pluralism. Rawls chose to answer formally to his critics on the accusation that his theory of justice violated the supposition of neutrality towards all comprehensive doctrines. Some have even said that this quest for complete neutrality inspired his second work (Gargarella, 1999). Throughout this work, the ideas of the authors revised will be presented against the background of the work of John Rawls. Liberalism, as discussed in Rawlss two major works will be taken as the standard against which the other authors are measured. The differences between Rawlss works will also be discussed. This project will also adhere to the fundamental understanding of political philosophy that Kymlicka (1995) details. I agree with the author when he uses Dworkins argument that every plausible political theory has the same ultimate
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value by which it is judged: equality. If we endorse Dworkins equality argument as put forth by Kymlicka (1995), then, the analysis of toleration throughout different comprehensive theories will include their definition of equality. Some theories will value toleration as an equal treatment of ideas, others as an equal treatment of the individuals that hold them, and still others as the equal treatment of the communities that endorse said ideas. Finally, I agree with Kymlicka in one other question of method. As Rawls stated in A Theory of Justice, the relationship between our intuitive convictions and our theoretical constructions is a close one. For Rawls, our convictions are provisional fixed points that, on a first approximation must coincide with the results of our theoretical undertakings. However, for the author, these convictions are provisional because they are sometimes to be revised in the light of our more robust theoretical conclusions. In the words of the author, when there are discrepancies between our intuitive convictions and our theoretical constructs [the author refers particularly to the initial situation described in a Theory of Justice], We can either modify the account of the initial situation, or we can revise our existing judgments, for even the judgments we take provisionally as fixed pints are liable to revision. By going back and forth, sometimes altering the conditions of the contractual circumstances, at others withdrawing our judgments and

conforming them to principles which match our considered judgments duly pruned and adjusted. This state of affairs I refer to as reflective equilibrium. (Rawls, A Theory of Justice, 1971, p. 20)

This reflective equilibrium that Rawls refers to is particularly evident in the case of toleration, because history has shown us that every time a society faces a new source of diversity or encounters a different otherness it feels as if it were the first time. In other words, once a polity has become accustomed to tolerate and incorporate to everyday life certain groups, identities, ideologies or preferences, the arrival of a new group triggers the process of intolerance again and often shakes the foundations of the social contract in the process of adaptation. It is this process that has been described as the historical foundation of toleration, and as it will be detailed shortly, as one of the pillars of liberalism. As such, I find it useful (whenever possible), to try to provide the reader with cases in which the principles practicality is tested. From the operation of the Millet system to more contemporary decisions of the US Supreme Court, I believe that political theory is alive and that its operation is tested in practice often. The stress test applied on the hinges of the theory often consists of cases when two values are placed in direct opposition and one must choose between them. In these cases, the outcome reflects the structure and primacy of values within a particular society, as well as the stakes that are risked in the choices between them.

II. Toleration: a definition

The definition of toleration involves not interfering with someone about whose ideas one disapproves of. There are three conditions that are needed for toleration to exist: first, a conduct that is disapproved; second, this disapproval must not cause a coercive act in the part of the subject to prevent the holder of the idea from acting; and third, the omission of the action must be more than mere resignation (Horton, 1993). However, the value of toleration in a liberal society is far from self-evident and must be defended explicitly. In fact, the defense of toleration has caused more than one controversy because it is a self-contained principle, and as such is subject to a paradox. Borrowing Susan Menduss argument, If toleration implies moral disapproval, and disapproving of something involves thinking it to be wrong, then the question arises, why should I tolerate or permit something I believe to be wrong, and how could it be right to do so? (Mendus, 1988, pg. 6) On a parallel track with Rawlss critique about A Theory of Justice not being sufficiently neutral with some comprehensive doctrines, the development of a defense of toleration has had to respect this neutrality. In this way, two main arguments have been advanced to justify toleration. The first one involves a certain skepticism or popperian fallibility principle implied by liberals. In this way,

creating a space that breaks the natural link between belief and action solves the paradox of toleration; thus when I have reason to doubt the ultimate veracity of my own beliefs, I cannot act upon them with complete certainty. This dissociation solves the paradox, but, as will be discussed with greater depth in subsequent parts of this work, it abandons the presupposition of the neutrality of the state because it involves a commitment of the liberal state with certain values, i.e. that its citizens hold their beliefs in with popperian fallibilism. The second argument is based on Political Liberalism by John Rawls. In this work, the author sustains that in order to participate in a liberal polity two presuppositions must be made about its citizens. One of them is that they are reasonable in the way they hold their views, beliefs and preferences. This has been interpreted1 as a concept that is fundamentally linked with toleration. This placement of toleration in the center of the theoretical construction of the liberal state requires its citizens to hold their beliefs in a certain fashion2. This in turn violates the principle of state neutrality. Also, and perhaps because of it, this principle works as a filter to establish the limits of toleration by disregarding certain unreasonable attitudes and the citizens that hold them. Finally, we will see in the conclusion of this investigation that a third way of defending toleration can be hinged on a defense of autonomy understood as a persons right to control his or her destiny (Raz, 1988). However, this argument

For a much more detailed exposition of this argument see Curc, F. (2007). La paradoja de la tolerancia en la construccin de la identidad ciudadana. Agora , 25 (1), 169-179. 2 This requirement for reasonableness in Rawlss arguments is similar (although less restrictive) than Barrys fallibilism in that it requires beliefs and attitudes to be held alongside an attitude of respect and noninterference with others beliefs. Barrys fallibilism can be considered a particular way of the myriad ways that one can be reasonable in a Rawlsian way.
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requires that the presupposition of the neutrality of the state be abandoned in favor of a perfectionist view that adheres to certain values. It is thus ironic that, similarly to Rawls dedicating the second part of his career to find a liberalism that would fit non-liberals, liberals have tried to find a defense of toleration that would fit the intolerant.

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III. Traditional Liberal arguments on the defense of toleration

Existing definitions of liberalism and the scope of the theory abound. Most of them share a reference to some concepts: rights, individuals, contracts, and reason among others. Some of them envision the scope of the project in much greater terms; others deem it only a historical chapter that will eventually fade away. In any case, one should choose the definition of liberalism according to the ultimate purpose of ones investigation as well as the particular authors within the tradition that one intends to analyze. I have found that for the purposes of this investigation, Michael Sandels definition of liberalism is adequate and useful to understand the concept and value of toleration. Sandel (2000) speaks to, and about a certain kind of liberalism, which he refers to as deontological liberalism, as that which (in opposition to utilitarian moral theories in liberalism) argues the primacy of the right over the good. He believes that deontological liberalism is above all a theory of justice; because it has defended and built its edifice over the argument that justice has a natural primacy over other political and moral values. According to Sandel the central idea of deontological liberalism is that society, composed by a plurality of individuals with their own ends, interests and conceptions of the good, would be well-ordered if it were governed by principles that do not presuppose any particular conception of the good. In this way, a neutral state is that which determines what is

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right but leaves it up to its citizens to give to themselves in conditions of autonomy their own versions of the good. This tradition is largely based on Kant, and is the one that Rawls explicitly avows. It is also the central conception of liberalism in this investigation. However, the first stages of the development of toleration and its development and growth as a central value at the heart of liberal states often borrowed arguments from different doctrines and time periods. As such, the purpose of this chapter is to sketch this process in order to arrive to the contemporary justifications for pluralism and toleration. From the liberal tradition, the defense of toleration and the solution to the paradox that this supposes has historically taken panoply of forms. Barry (1990) summarizes the development of this debate in three main streams. First, he describes the argument for social peace. This defense takes as a starting point a society composed by various ideologically different but similarly powerful groups. Within this society, it is relatively easy to convince the citizens that the only way of achieving political stability is if ideological toleration is enforced. Thus, only if every group abandons the desire to become hegemonic, society will be at peace. The problem with this argument, Barry writes, is that it rests on the assumption that all the groups value political stability over ideological/religious hegemony. According to Barry, this order of values means that we are dealing with groups that are already secularized in large measure (Barry, 1990). This is because in the ordering of the values that it chooses to uphold, a society gives itself a moral code; as such a society that as a whole values political stability over religious
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indoctrination and hegemony is probably in large measure a liberalized society. In other words, liberalism preaches to the choir when it uses the argument of social peace to justify the value of toleration. The second argument, according to Barry, appeals directly to prudence. Using a logic that resembles the method and assumptions of rational choice theory, Barry asserts that (in the same society with internal divisions but relatively balanced in power) the expected value of religious toleration is much greater than the expected value of the fight for hegemony. Put differently, individuals rationally weight the probability of losing the battle for ideological control with the expected value of a ban on their religion against the probability of winning the battle with the value of being the controlling group. Thus, if the expected value of having a ban on their ideology/religion is negative enough, these individuals will be expected to enforce toleration without any further need of justification. The problem with this argument is that it offers little guidance on the problem with minorities given that it only works if the societys power distribution is relatively balanced. If this were indeed the only justification for toleration then nothing would prevent majorities from extinguishing minority beliefs. Also, it raises the problem of stable equilibriums over time. That is, there is nothing in this justification that prevents a society that rationally elected to pursue tolerant policies at some time from reversing its decision once the balance of power and the expected value of intolerance have shifted away from the original position. So, this argument is not good enough to defend tolerations value in any society and to maintain that position over time.

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The third and final argument that Barry puts forth is based mainly on Lockes view of religious toleration. This argument goes as follows: given the impossibility of coercing individual belief, then intolerance and indoctrination are useless and toleration is the optimal policy (Barry, 1990). Many commentators have argued that this argument put forth by Locke is not sufficiently well justified; they state that it only holds when we impose harsh restraints on societys point of view towards religion. First, we have to suppose that the fight for ideological control of the apparatus of the state is driven only by a desire to save the converted; and, further, we have to suppose that the aforementioned faith teaches that salvation cannot be attained by coercion (Barry, 1990). These two assumptions are indeed too restrictive as one can imagine examples where they are both broken in societies. There are reasons beyond conversion to seek to make ones religion the official dogma of the state, as well as religions who value actions and statement as much as internal belief. However, it is important to mention that Lockes argument is still relevant within the debate. For example, Pevnick (2009) argues that if we allow for the Magistrate to have more than one objective (namely, if we allow for the possibility that it is in the Governments interest to protect property), then religious persecution undermines this role. This makes it irrational for governments to be intolerant, and thus Lockes argument holds. So, even if Barrys objection to the argument on the impossibility of coercing belief is correct, liberals (and Classical Liberals) still have useful weapons in their
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arsenal for the defense of toleration. As Pevnick argues (2009), Lockes arguments make sense within his assumptions. However, the context of a pluralist society calls for a more robust set of arguments that does not depend so crucially on the nature of the contractualist assumptions made on the objective of the State. The failure of these arguments to provide this robust justification has inspired the search for different solutions from most of the contemporary theories. Liberals and non-liberals alike have set out on a quest to solve the paradox of toleration. In the next section, I will try to sketch two of these proposals and finally I will comment on their effectiveness to attack the problem and solve the puzzle.

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IV. Rawls I: A Theory of Justice

Many theorists and schools have taken up the challenge posed by the defense of the argument for toleration. The most prominent of these is, of course John Rawls. In A Theory of Justice, Rawls builds a theoretical framework in which the state would achieve the characteristic of neutrality to all moral values and thus legitimately justify by means of a (hypothetical) covenant the political principles that would be accepted by all members of society. Among these principles, toleration plays a central role because it ensures the peaceful coexistence of different groups creating a truly plural state. Arguably the most important work in the last few decades in the field, A Theory of Justice devotes itself to laying the foundations and legitimating the basic rules that a society gives to itself following the tradition of contractualist liberalism. The first pages of the book are devoted to demonstrating the centrality of the conception of justice in the fundamental agreement behind a social arrangement. Rawls argues that the virtue of justice is the cornerstone of a well-ordered society because in it lays the assignment of rights and duties within a social structure as well as the distribution of benefits and burdens in it. For the author then, a public conception of justice constitutes the fundamental charter of a well ordered human association (Rawls, A Theory of Justice, 1971, p. 5). In this same line of reasoning, the author then avows himself to finding the principles of justice that would be acceptable to any and all men asked to sign the
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social pact under certain controlled circumstances. This task is no simple matter, for it takes upon itself the responsibility to design a social contract distributing rights, duties, benefits, and burdens that would be acceptable to all men regardless of their circumstances. One can intuitively think of a myriad conditions and idiosyncrasies that would alter our preferences for the social distribution of goods. The first thoughts would take us to socioeconomic positions, wealth, education and other attributes that filter the opportunities to which men have access to; but a closer examination would also include in this category matters of belief, worldviews, credo and other fundamental cores of human identity that shape the ways men view themselves, their lives and their roles in society. As such, Rawls recognizes the need to separate two basic functions of society. The first one is concerned with the distribution of rights and duties to the state. This stage sets the boundaries of freedom and stipulates specific rights that citizens are to enjoy as part of the social contract. However, the question of rights and liberties is not enough to ensure a just society. As such, the second stage is needed to solve the problem of the distribution of economic benefits and toils; this stage concerns itself with curbing the depth of economic inequality and ensuring fair terms of competition for resources for every citizen of a State. This titanic task of defining the rules that would govern the two stages is tackled by asking the reader to think of various hypothetical situations and to separate individual identities in fully detachable parts. More specifically, Rawls asks the reader to imagine a hypothetical scenario and uses this method to demonstrate that all the individuals within a polity would accept his proposed

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principles of justice. The method consists of separating individuals from their identities, credos and the particularities of their lives and positions in society that differentiate them from their neighbors. With this resource Rawls asks us to imagine a veil of ignorance that makes persons unable to visualize the particularities of their identities. They are thus, under this condition, ignorant of their particular credo, political position, wealth, and of course of their particular position in society. The veil of ignorance concept coined by the author asks us to separate between three types of knowledge of the particularities of societies and identities, and to assign each of these types of knowledge to one of the stages of the social contract. This process is the distillation of Rawlss whole theory. In the primordial first stage, the first principles of justice are derived. According to the author, if a number of fully rational individuals were to leave aside those aspects of the social world that seem arbitrary from a moral point of view and agree to a conception of justice that would suit all of them (regardless of what will eventually become their particular position in society) they would eventually settle for the following two principles: First: each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others. Second: social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyones advantage, and (b) attached to positions and offices open to all. (Rawls, A Theory of Justice, 1971, p. 60)

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In essence, these two principles summarize Rawlss conception of justice as the virtue that distributes goods and chores throughout society and its members. The concept of the veil of ignorance is crucial because it is precisely this ignorance that drives rationally oriented individuals to agree to these principles of justice. Once these two principles are agreed to, the rest of the stages concern the final allocation of benefits and burdens throughout society and involve the lifting and relaxing of the veil of ignorance conditions in all of them. The table below illustrates the process that Rawls describes as the stages that constitute the social contract and the relaxation of the veil of ignorance that accompanies them. It starts with an initial situation where nothing is known. This is followed by a first stage where the objective is to agree to the basic principles of justice that will govern the future polity. In this (hypothetical) stage nothing contingent is known, the rational agents know only the first principles of justice, and the fact that they may or may not have particular interests once the veil is lifted. Here the subjects agree to the principles of justice mentioned above. The second stage is that of the constitutional assembly. The constitution is the covenant that is aimed to protect the first principle of justice. Here, the citizens agree to protect the principle of equal liberty for all, mainly because they do not know yet which hand they have been dealt with respect to socioeconomic status and identity. After this constitutional stage, the citizens then set about enacting legislation. In this legislative process Rawls is not explicit about how much of the veil of ignorance is lifted, however, a supposition can be made using a continuation
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of his logic. This stage is meant to protect the second principle of justice, and thus to ensure by means of law and policy that the economic and social resources of a polity are used in a way that privileges equality and permits inequality only when it maximizes the prospects of those less advantaged. Following rawlsian logic then, individuals in this stage must know the distribution of resources, but not the identity of the holders. Finally, Rawls speaks of the implementation of the law by judges and administrators as a fourth step of the construction of a polity. In this stage, the veil of ignorance is completely lifted and the problem becomes the application of faceless law (designed under the veil of ignorance) to flesh and bone persons. Rawls excludes this state from the concerns of a Theory of Justice and says one needs partial compliance theory to assess the best way to do this. Table 1. The four stage sequence in A Theory of Justice3
Stage 0 Initial situation Aim -Known Unknown

Nothing is known about the particularities of society or the position of its members. The course of history, general facts about society (size and level of economic advance), institutional structures, natural environments etc. Particular positions of each person within society

Principles of justice

Distribute rights and duties; benefits and burdens.

First principles of social theory.

Constitution

Protect the first principle of justice (equal liberties) by protecting the

Course of history, general facts about society, etc

The table is the authors, based on an interpretation of Rawls, J. (1971). A Theory of Justice. Cambridge: Harvard University Press. Pg. 195-200

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fundamental liberties of the person and the liberty of conscience and freedom of thought as well as the overall justice of the political process. Ensure that social and economic policies be aimed at maximizing the long term expectations of the least advantaged under conditions of fair equality of opportunity, subject to the general liberties being maintained. Particular positions are known, but (presumably?) not the identities of people. The organ must know the facts about society to maximize the longterm expectations of the least advantaged.

Legislature

Personal identities.

Application of the law

Apply the rules reached in the previous stages to particular cases

Everything is known. The operation of this stage and its problems belong to partial compliance theory.

This partial deviation from the subject matter of this investigation is intended to provide a framework with which to analyze the critics of the rawlsian interpretation of justice and the pillars on which it is built. It will be seen shortly that most of the critics of John Rawlss first work focus on his conception of the individual, of knowledge and of ethics; and the process described above has a lot to do with all three of them. It will also be seen that toleration and the design of a truly plural society are crucial requirements that Rawlss theory fails to satisfy completely. But before, I would like to state briefly what this methodology means for toleration. In other words, what kind of toleration does A Theory of Justice support.

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For such a large volume on political theory, A Theory of Justice devotes surprisingly few pages to the explicit treatment of the operation and role of toleration in political life. Granted, Rawls intends to derive all of the virtues of a polity from justice, but it is still striking to see such a succinct treatment of the principle. The author starts the treatment of toleration by stating his view of the utilitarian conception of its value4. For Rawls, utilitarianism views toleration as something akin to Pascals wager, where the actuarial calculation of ones expected return favors the practice of toleration5. As such, he presents his argument against it and argues that the contract struck in the initial position as described in A Theory of Justice is superior to the utilitarian view because it is a stable equilibrium in time. As we saw in the previous section, the main criticism towards the utilitarian view of toleration in classical liberalism is that it is too dependent upon the contingent state of a polity, i.e. the balance of forces and the distribution of political power different conceptions of the good in society. In other words, situations may present themselves in the future where it is optimal (under the utility maximization rule) to deviate from toleration based on the distribution of power within a society and the expected return from intolerance. This criticism is not particular of toleration for it applies to the whole of utilitarian and other teleological theories. Utilitarianism, as a good maximizing doctrine will often be unstable over time because while the objective function of a

This is the standard procedure, which the author uses to construct and demonstrate the supremacy of his theory of justice; and one, which he uses explicitly throughout the work. 5 This view is very similar to Barrys second principle of toleration in classical liberalism, as discussed in the previous section of this work.
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society may be a stable equilibrium; the constraints with which one maximizes are dependent upon the contingencies of a particular society and are susceptible to change over time. The other criticism that is common to all utilitarian theories and also applies to their definition of toleration is its ability to compromise when the needs of the many outweigh the rights of the few. When referring to toleration this criticism is especially incisive because it is most often seen that minorities need to be tolerated and their rights respected. So, in essence, the utilitarian argument fails to provide good reasons why we should tolerate those who are few and different within us. Thus for Rawls, the strength of his argument lies in that the two principles of justice are stable when viewed in a long-term scenario. Also, regarding the first principle, the author claims that equal liberty is final and it is impossible to compromise it when the distribution of power or the expected returns change. This makes it immune to the problem of minorities having too little political power to defend their beliefs, or to the trade-off of making majorities happier at the expense of minorities rights. Thus, rawlsian toleration as a special case of the first principle of equal liberty is compatible with a long-term multigenerational view of the polity as well as with any distribution of power within it. However, these are not the aspects of the rawlsian derivation of toleration that have generated the most polemic arguments on the subject. The problem comes when one derives toleration from the completely individualistic views endorsed by the social contract in this author. We have mentioned earlier that the subjects of the rawlsian polity are rational individuals. The principles of justice aim
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to serve these rational individuals thus conceived. Hence, toleration derived in this fashion is inextricably linked from these assumptions. As such, rawlsian toleration is completely individualistic and subject to individual freedom of conscience. In the authors own words, particular associations may be freely organized as their members wish, and they may have their own internal life and discipline subject to the restriction that their members have a real choice of whether to continue their affiliation. The law protects the right of sanctuary in the sense that apostasy is not recognized, much less penalized, as a legal offense, any more than is having no religion at all. In these way the state upholds moral and religious liberty. (Rawls, A Theory of Justice, 1971, p. 212) As will be seen in subsequent sections of this work, this is by no means the only way that toleration can be conceived of within a polity. In many ways, this conception of faith and identity using rational, individualistic concepts undermines much of the social process that broods these same phenomena. This has generated no small amount of concern in political theorists. Especially theorists such as Michael Sandel and Michael Walzer have expressed their opposition to this fundamental conception of the political realm. Their concerns will be dealt with extensively in the next section. There is also another criticism that has been made to this argument of complete individual freedom. Whereas in economic theory one hundred years ago, the concept of more is better dominated the entire science, the work of Nash and others in the last decades have altered this perspective considerably. Before this
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new research, economists assumed that to give an individual more choices resulted always in her having at least as much utility as she had initially; in other words, one cannot make someone worse off by giving her more choice. This concept has been formally challenged in economic theory. Nashs prisoners dilemma demonstrated with mathematical precision that there are social situations that involve the interaction of two or more people where more freedom (in the form of more choices) can be bad for both individuals. In essence, were the people in this game more constricted they would have achieved the Paretto optimality that in the presence of more choices they did not get. This critique touches the very foundations of the rawlsian construct. Recall that the first principle required us to maximize freedom subject to the constraint of equality among individuals. What if maximizing freedom was not so good after all? On another note, some theorists have expressed the concern that the fact that liberals use terms like preference and choice to define religious experience within the political realm distorts the essence of religious experience and becomes an empty category (Mitchell, 2007). In this way, the power of the methodology and terminology of rational choice fails to comprehend the complexity of human experience and stands idly while it escapes the grasp of its categories. Thus, treating religion as something free individuals choose as a lifestyle preference reduces the subject so much that it loses all meaning. This is by no means a solitary concern of Mitchells. By and large the very concepts on which liberalism has traditionally relied on to explain the human experience and their usefulness have been questioned in many ways.

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One such example is a question that Rawls decided to address explicitly at the end of his analysis of toleration: the obligation to tolerate the intolerant. This question is important because it draws the limits of liberal toleration, but also because it deals with the extreme cases of an adherence to liberty, which are often problematic. To Rawls, the argument for tolerating the intolerant starts by ascertaining whether an intolerant sect has a right to complain under the rights of the just state. His answer is negative, for one cannot demand what he does not give. Thus, intolerant groups within a liberal polity cannot demand to be tolerated when their equal rights are violated. However, for Rawls this does not mean that the tolerant have a right to restrict the freedom of the intolerant. Provided that there is no reasonable threat to social peace, the rest of society should coexist with the intolerant. In the authors own words: The leading principle is to establish a just constitution with the liberties of equal citizenship. The just should be guided by the principles of justice and not by the fact that the unjust cannot complain. (Rawls, A Theory of Justice, 1971, p. 220) However, any reasonable threat to social peace authorizes the tolerant to curb the intolerants freedom. Rawls is not clear as to where the line is drawn, and in fact mentions that it is not a clearly defined point. It is hard not to interpret that Rawlss detailed and long explanation of the limits of social peace draw a rather ample scope for authorizing the limitation of the intolerants freedom in more than one scenario.

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In this way, without breaking the two principles of justice, Rawls draws the limits of liberal toleration and absolves the state from tolerating those who do not comply with its rules. This case has been very relevant in constitutional democracies, since there have often been legitimate political groups within the political process that have intolerant views that come into conflict with the principle of equal liberty for all. But the case is also relevant because when Rawls speaks of tolerating the intolerant as long as they do not disrupt the social order, one cannot help but notice that he thinks it is harmless to do so. In this respect, Zizek (2002) constructs a fulminating criticism to liberalism. He argues that pluralism and the liberal state as understood in the last decades have effectively cleansed all the relevant categories by transforming the discourse of politics to that of narratives and preferences. This criticism is very similar to Mitchells (2007) although it comes from a very different tradition. Zizek, like Mitchell, argues that by using the language of liberalism and economics to describe the political arena, truth and zeal have been replaced by discourse and preference. In this way, words have been separated from the actions they require and political discourse rendered harmless for the preservation of the status quo. Thus, tolerating the intolerant (or anyone in Zizeks view) is completely harmless because nothing is at stake in the openly political realm of modern liberal states. Protest and freedom of speech are tolerated, even fostered because the preservation of the real status quo (the economic structures, privileges, and ways of production) is not threatened by it. In fact, liberal freedoms (or the illusion thereof)
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serve the role of venting the frustration of the citizens in a system where they cannot really change the status quo. This is especially resounding with Rawlss conclusion that one should effectively tolerate the intolerant as long as they do not disrupt the status quo, for what would be the purpose of an intolerant sect who does not want to change the way things are? In many ways, Zizek touches a note with this argument because he answers that question with a dramatic interpretation of the vacuity of meaning in liberal institutions. Paradoxically, Zizek hints that the liberal basis for pluralism and toleration, and the avowal of the liberal state to be neutral between conflicts is exactly what generates this illusion. Where everything is an opinion and every doctrine is as good as the next one, truth cannot exist. If truth does not exist then there is no risk in speaking, no reward in protesting and no one-sidedness. This criticism from the marxist camp is hardly a surprise; however, it cannot be dismissed entirely. After all, what is the cost of tolerating the intolerant in Rawlss view? And, how can one be intolerant and not disrupt the social order? A very practical example of this is (buscar artculo de Curc: ETA en espaa) Going back to the theoretical foundations of toleration in Rawlss work, we encounter what can possibly be the most controversial thesis of A Theory of Justice. In it, Rawls claimed to have found a principle that justifies liberal institutions without demanding some form of liberalism from its listeners (or citizens). In a theory of justice, Rawls conscripts the duty of the state to: underwriting the conditions of equal moral and religious liberty (p. 212). By
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that, he means that the state should always be neutral between competing conceptions of the good. He states this explicitly in opposition to republicanism dismissing the notion of the omnicompetent laicist state. For Rawls, the neutrality of the state means it cannot commit itself to any single value; it can just act as a leveling field among different conceptions of the good. However, neutrality has taken many meanings between historical times and thinkers. When one reads Rawlss work, particularly his account of the original position, one gets the feeling that at the base of this theoretical endeavor is a deep distrust of the contingent, of the historical, of the organic parts of a society and the arrangements it may acquire using these bodies of knowledge. The following passage is a clear example of this, In the original position the only particular facts known to the parties are those that can be inferred from the circumstances of justice. While they know the first principles of social theory, the course of history is closed to them; they have no information about how often society has taken this or that form, or which kinds of societies presently exist. In the next stages, however, the general facts about their society are made available to them but not the particularities of their own condition. Limitations on knowledge can be relaxed since the principles of justice are already chosen. (Rawls, A Theory of Justice, 1971, p. 200) In it the author describes the progressive relaxation of the hypothetical limits of contingent knowledge that are set up in order to describe the initial position that
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would endorse the principles of justice (see chart above). However, one cannot help but think about the true way we acquire knowledge about the world, and the way we extract (much in the opposite direction that Rawls constructs) our most abstract conjectures from the most contingent of scenarios. The author defends his methods quoting Chomsky and his procedure for extracting the rules of grammar (Rawls, A Theory of Justice, 1971, p. 47) that are unknown to even language savvy native speakers. However, the rules of grammar are not contingent of the knowledge one has of grammar or the world, whereas in Rawlss construct, the rules of justice are. In this case, the quest for neutrality that has to be arrived at from a position of ignorance becomes ever more difficult to attain; even, according to many critics, chimerical (Raz, The Morality of Freedom). This quest for neutrality has inspired more than one theorist to define it. For example, Barry defines neutrality the following way: the principle that public policy should not be based on an evaluation of peoples conceptions of the good. (Barry, 1990, p. 7). This definition is similar to Rawls in that it separates what is right from what is good. As such, this is the essence of the quest for neutrality and its biggest challenge is to build a political entity that respects this in its citizens. Rawls has explicitly avowed himself to the challenge of finding a conception of justice that is independent of a definition of the good life, as well as compatible with any definition of it. However, there is a paradox because neutrality is itself a value and it requires a commitment from the state to be upholded. Thus, a neutral state is neutral towards everything except neutrality; and this value is placed at the top of the
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policy makers agenda. This prompts authors like Barry, who recognize this paradox, to ask themselves if liberalism should abandon neutrality or continue its adherence to it as an explicit value in the liberal state. The answer to this question, to Barry, is that in an explicit choice between the right and the good, the liberal government should choose the right and conclude that neutrality should be at the center of the ideological edifice. However, defending toleration with neutrality does not solve the paradox because, neutrality is also a self-containing principle. Thus, neutrality itself is not neutral towards all conceptions of the good, and requires certain familiarity with liberalism from the subjects it rules over and the doctrines it tolerates. On the other hand, neutrality for Raz is a principle that has more to do with the role of the state in helping or hindering certain pursuits of the citizens conceptions of the good; or more accurately defined as the states compromise not to help or hinder the path to any particular conception of the good life (Raz, The Morality of Freedom). At the same time, Raz recognizes that the concept of neutrality involves far deeper levels of complexity than most liberal thinkers associate to it. On the first level, he makes a distinction between narrow and comprehensive neutrality. To illustrate this distinction he poses an example that involves two remote countries going to war, and one other country, that supplies country A with some important goods but not country B. In this case, the author argues that: Comprehensive neutrality consists in helping or hindering the parties in equal degree in all matters relevant to the conflict between them.
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Narrow neutrality consists in helping or hindering them to an equal degree in those activities and regarding those resources that they would wish neither to engage in nor to acquire but for the conflict. (Raz, The Morality of Freedom, p. 122) This distinction is incredibly relevant for the operation of this principle, because comprehensive neutrality requires us to draw boundaries that do not necessarily draw clear-cut lines. In Razs own example, the third country in the above conflict would compromise its comprehensive neutrality by supplying country A with food, but it would maintain its narrow neutrality with the same action. Similarly, if this country were to supply arms to A, then it would compromise narrow neutrality too. On a second level, Raz draws our attention to the baseline scenario with which we measure the starting point of the action to assess its neutrality. The problem here, as we will try to explain, is that there are often competing claims as to where to draw the line in the hypothetical scenario to be compared with the neutral one, and that as the author recognizes himself, there are no rational ways to justify the use of one scenario over the other. This is particularly relevance in the case of state action and toleration because, (as is again stated by Raz) in the case of state action, not helping the pursuit of certain conceptions of the good is hindering them because of the inertia and the power that the official view has over its citizens. In this respect, I believe that the argument can be taken even further than Raz takes it in his critique of Rawls, as I will try to make clearer in the next few lines.

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The future liberal perfectionists and communitarianists read a Theory of Justice and had concerns in similar areas; although, I believe, with a slightly different angle. The perfectionists concern is usually with neutrality, whereas the communitarianists usually argue about the conception of the individual and the process of identity forming. However, the end result is, I believe, similar, in that they both end up sustaining that a Theory of Justice is not sufficiently plural. In the formulation of the original position and in the hypothetical construction that Rawls asks us to make in order to choose the governing principles of society, there are certain biases that preclude the pursuit of some (non-trivial) conceptions of the good. So, at the heart of both critiques lies toleration and its scope and value within the polity. For perfectionists (represented mainly in this investigation by the works of Joseph Raz) the main problem lies with neutrality. They argue that Rawls purported neutrality in the original position is effectively placing the individualistic pursuit of ones own ends as the supreme good desired by individuals (and particularly defined individuals at that). As there are groups, ideologies, citizens and identities that do not hold this view of self-realization, the original position and its protecting veil of ignorance are far from neutral and effectively kill the possibility of an arrangement that does not hold this view of the individual. In Razs opinion this violation of neutrality is far from minor and, is in fact a special case of the wider thesis that neutrality is neither valuable nor attainable in a political system. It is not merely that Rawls discriminates against some conceptions of the good, but that in A Theory of Justice it is effectively imposing one conception

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of the individual and denying the possibility of any others. It is based on this argument that the author endorses the claim that the liberal state cannot and, most importantly, should not be neutral. The edifice is fairly simple, for if neutrality is impossible, then the state should endorse some values and should promote a particular conception of the good in its citizens.

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V. Rawls II: Political Liberalism

Out of al the criticism that A Theory of Justice received this one regarding the capacity of his thought to accommodate true pluralism is the one that he chose to listen to. This led him to revise and limit the theory stated in his first work. Rawls felt the need to address the critics that claimed that his ideas on neutrality and toleration do not solve the controversy over the incorporation of certain non-liberal ideologies in a liberal state. Thus, the argument that A Theory of Justice was not wide enough to accommodate political pluralism inspired Rawls to revise his work and to write Political Liberalism. The author himself clarifies the scope of his second work, Political liberalism, then, aims for a political conception of justice as a freestanding view. It offers no specific metaphysical or epistemological doctrine beyond what is implied by the political conception itself. As an account of political values, a free standing political conception does not deny there being other values that apply, say, to the personal, the familial, and the associational; nor does it say that political values are separate from, or discontinuous with, other values. (Rawls, Political Liberalism, 2005, p. 10) In this second work, Rawls limits his defense of liberalism to the political arena, but also grants a much more explicitly central role to toleration and the

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accommodation of pluralism. In the authors own words, his second work sets out to solve the following question: how is it possible for there to exist over time a just and stable society of free and equal citizens, who remain profoundly divided by reasonable religious philosophical and moral doctrines? (Rawls, Political Liberalism, 2005, p. 4) With this sentence, the author revises his Theory of Justice and gives toleration and plurality a much more central role in his analysis. To accommodate this new objective (finding the principles that would build a truly plural society), Rawls devises another hypothetical situation called the overlapping consensus. However, in order to introduce this new term as a

fundamental concept, he revises (or at least elaborates) on his conception of the person and the political. Thus, in Political Liberalism two concepts are advanced as necessary parts of the person for a political consensus. Acknowledging his debt to Kant, the author claims that in order to be part of a democratic liberal society people must be both rational and reasonable. Someone is rational in the rawlsian sense when she possesses the powers of judgment and deliberation to seek the ends that she has set for her. In this sense, rawlsian rationality is equivalent to economic rationality and is compatible again with perfect neutrality in the evaluation of ends. Rawls, like economists, affirms that rationality is not found in the types of ends sought by persons, but in the path

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they take to get to them. Thus, if I want something, whatever that is, the fact that I devise a plausible path of actions to obtain it makes me rational. Rationality was all that was needed for a well-ordered society in A Theory of Justice. In many ways, this first work of Rawls represents the pinnacle of liberal faith in man. Like Adam Smith, Rawls said that if everyone was looking out for his own interests, and we devised a good set of rules to channel those selfish efforts we would reach a situation where everyone would be better off. Unlike Adam Smith, Rawls revised his statements and added some key requirements for this to happen. This revision is what constitutes the basis of Political Liberalism, and its key concept is that of reasonableness. For Rawls in Political Liberalism, being rational is not enough to build a wellordered society, and thus he introduces reasonableness as another characteristic of the citizens of liberal democracies. In the authors own words, reasonable persons: are not moved by the general good as such but desire for its own sake a social world in which they, as free and equal, can cooperate with others on terms all can accept. They insist that reciprocity should hold within that world so that each benefits along with others. (Rawls, Political Liberalism, 2005, p. 51) In fact, this concept refers to a kind of moral capacity that makes desire cooperation and reciprocity for their own sake, instead of just regarding them as necessary conditions to our personally set ends. Reasonableness is also a public virtue because it is what enables us to negotiate and stand by our agreements in

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terms of fair social norms that require cooperation. Reasonableness is a precondition for the design of a framework that is fair and in that way distributes the burdens and bounties of cooperation. But then, Rawls asks, how is it possible that reasonable citizens that value cooperation and reciprocity can arrive at such a wide plurality of conceptions of the good? This question is particularly relevant because, as it was mentioned before, in A Theory of Justice, Rawls introduced the concept of reflexive equilibrium to describe the path that individuals follow in order to commensurate their theoretical beliefs about the world with their intuitive convictions. So for the author in this stage of his career it was inevitable that, over the long run, everyone would come to the same conception of justice, as his concept of a dynamic equilibrium required only that over time, people be subjected to roughly the same situations in order to awaken their intuition similarly. In other words, for Rawls in A Theory of Justice, the conception of justice was universal over the long run. In Political Liberalism he recognizes that this does not have to be the case at all and thus, frames the question mentioned above as the central part of his second work. To explain this question he introduces a concept called the burdens of judgment. In it, the author recognizes that even rational and reasonable persons must evaluate claims and make judgments using a mental process that is divergent form person to person. This relates directly to what Rawls had described as a process of reflective equilibrium in a Theory of Justice. Recall the revision in the previous section in which the author thought that, by this process of revision of our intuition and compliance to theory, in the long run every rational person would

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converge to a shared conception of justice. Whereas in Political Liberalism, Rawls accepts that this does not have to be so, and in fact is highly improbable; he accepts that the fact of pluralism is irreducible by means of reason. This conceptual variation is crucial to understanding toleration in Rawlss work, because whereas in a Theory of Justice competing conceptions of the good were compatible because the principles of justice were universal, in Political Liberalism a consensus must be reached between incommensurable conceptions of the good (and of justice). The following table summarizes Rawlss account of the sources of the socalled burdens of judgment. They refer mainly to the complexity of human reality; its uncertainty and the differences in experiences that can make two reasonable persons reach different conclusions about the same (moral or political) fact. Burdens of judgment may be understood as places and reasons where reason can differ. Table 2. Sources of the burdens of judgment6
1 2 3 4 5 6 Assessing complex empirical and scientific evidence Weighting different considerations against one another Judgment and interpretation to apply our abstract concepts to hard cases The weight our total experience and perspective has on our judgments Conflictive normative considerations in a single issue Prioritization and selection of values within a system

The table is the authors based on Rawls, J. (2005). Political Liberalism. New York: Columbia Classics in Philosophy pg. 56.

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The second part of reasonableness, Rawls says, is having a willingness to accept the burdens of judgment. As a consequence of the burdens of judgment, people have developed comprehensive doctrines that include a set of values and beliefs that constitute the different worldviews that people hold. Comprehensive doctrines have, according to Rawls, three main characteristics: first, they are, as the name suggests, comprehensive, which means they cover the major religious, philosophical and moral questions; second, they give certain values a particular place and weight; and third, they are reasonably stable over time and draw upon a tradition of thought. Thus, accepting the burdens of judgment means that reasonable people understand that they cannot impose their beliefs on other comprehensive doctrines, and that this would not change were they to have political power. Rawls sustains that being reasonable is not an epistemological idea. He even compares reasonableness to philosophical skepticism (or fallibilism as we have called it earlier). In the comparison, he says the difference lies in that reasonableness does not require one to doubt the veracity of his own comprehensive doctrine, but only to refrain from trying to repress others. Rawls calls it public reason However, this renunciation of fallibilism cannot be taken lightly, because by saying that one should regard ones own comprehensive doctrine as true, but not try to impose it upon others does have certain epistemological consequences close to that of fallibilism. As such, reasonableness and rationality are taken as two distinct and separate ideas that relate to the two moral powers needed by Rawlss theory: the capacity for
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a sense of justice (reasonableness) and the capacity for a conception of the good (rationality). By recognizing that his principles of justice are of a political and not a moral nature, he defends the inclusion of such doctrines (and only such doctrines) that are reasonable into the political realm. In his own words: When attributed to persons, the two basic elements of the conception of the reasonable are, first, a willingness to propose fair terms of social cooperation that others as free and equal also might endorse, and to act on these terms, provided others do, even contrary to ones own interest; and second, a recognition of the burdens of judgment and accepting their consequences for ones attitude (including toleration) toward other comprehensive doctrines. (Rawls, 1995) Many theorists have focused on criticizing this view from the aspect of reasonableness, consent, and the use of coercive political power. For example, Friedman (2003) focuses her concerns on those unreasonable people who withhold consent from political liberalism and the way their autonomy is violated by the theory. She starts by saying that Rawls intends to legitimate political power on the consent of reasonable people only, in other words, that the political opinions of unreasonable people simply do not count. Friedmans argument continues by saying that Rawls abandons the claim to universality that liberalism has set upon itself. By saying that a state is legitimate

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with only the consent of reasonable people who are asked to live under it, the liberal state excludes at least some people and thus the social contract is not universal. In her own words, Yet this very necessity7 seems inconsistent with the liberal goal of resting on the consent of all of the governed. In Rawlss view, the legitimacy of a political system is sufficiently established even if it is endorsed by only the reasonable and rational among its citizens. Reasonableness, however, is defined in terms of the very values and assumptions from which Rawls derives his political liberalism. How satisfactory or meaningful is the consent of a citizenry if the process of representing or obtaining consent excludes the opinions of those persons who, because they start with non-liberal attitudes, are the very ones who might vote no? By excluding from the legitimation pool exactly those person who do not accept the political values and basic tenets on which Rawls grounds political liberalism, Rawls rigs the election in advance. (Friedman, 2003, p. 22) And not only the election is rigged; for, as Friedman states, Rawlss doctrine gives permission to contain and suppress those views that are unreasonable from the democratic arena. This containment going as far as to restrain the basic liberties that the system pledged to give to all its citizens. (Or just the reasonable ones?)

Here Friedman is referring to the apparent paradox that liberalism gives freedom readily to those who do not threaten the system, but withdraws it as soon as the status quo is in risk of changing.

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This is a common critique from the perspective of feminism. Friedman then reminds the readers that liberal democracies excluded women from the legitimation pools and curbed their democratic rights and freedoms precisely because they were deemed unreasonable. Even if she acknowledges that Political Liberalism would not exclude women today, as their reasonableness has been reasonably accepted by society, she worries that there may be groups deemed unreasonable today that will not be so tomorrow. After this she warns that the power to define reason as a means of entry into the legitimate part of a society is very dangerous and has traditionally led to excesses. The conclusion of her work is that liberalism, even political liberalism is nothing more than one comprehensive doctrine, and as such has chosen certain values and disregarded others and cannot be considered above other similar doctrines. Moller Okin takes her criticism of Rawlss Political Liberalism a little further. She argues that since the family is part of the basic structure of society, as recognized by Rawls in both his books, then the rules of justice as fairness should apply within the family to ensure the justice of the system throughout (Okin, 1994). In fact, her criticism goes further in many ways, because by saying that the family should be governed by the same principles of justice as the political arena, Okin is defying Rawlss division of the political and the non-political and claiming that it should be more diffuse than it is in both his works. She claims that Rawls splits the individual between his political and non-political self and leaves out basic parts of the human identity.

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However, her most profound criticism also pertains to the realm of what Rawls calls reasonableness in Political Liberalism. Stemming precisely from her conception of what is political and what is not, Okin argues that the institutions of family, religion and culture, often inculcate and reinforce beliefs that are in no way preferred by these individuals8. Hence, people who grow up in these settings (especially women who are educated to believe that they have an inferior role to play in society) cannot be regarded as free and equal citizens. So, in fact, Okin challenges Rawlss view that these religious or orthodox groups who educate their members inculcating these beliefs can be reasonable in a liberal sense. Even if they do comply with the two conditions for reasonableness with regards to other comprehensive doctrines, they should not be included among those acceptable doctrines in the political realm. Okin speaks of religions (Okin, 1994, p. 31) and the way they circumscribe the roles of women and exclude them from important religious functions and positions of leadership. Her last criticism is that Rawls does not regard those doctrines that subordinate women with as much scorn as he does those who disregard men with racial or ethnic justifications. Again, the fact that Rawls centers again in reasonable doctrines on his own definition has to be justified in some way. For some, including Barry, any requirement that has to be made on these doctrines for incorporation into the liberal state violates the principle of neutrality. This in turn, restricts pluralism. This gets us again to the paradox of toleration, where one is obligated to tolerate that which he finds intolerable.

8

In a way, there are multiple ways in which the same critical points have been expressed with regards to both books by Rawls. Recall earlier the mention of Mitchells point that religion is not a preference.

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So, reasonableness, neutrality and toleration are still concepts whose merger is not unproblematic. All of these authors have in common is that Rawlss reasonableness and neutrality are neither attainable nor desirable (or a combination of those). Recall Barrys argument that liberalism should continue to adhere to neutrality even if the paradox means this adherence violates neutrality. In many ways, what Barry is saying can be interpreted as a concession to perfectionism. Lets sum up some of the arguments made so far. First, one is obligated to tolerate that which he finds intolerable in a liberal regime. Second, any requirement that has to be made on comprehensive doctrines to belong to the acceptable doctrines in the regime violates neutrality. Then if all this is true, why not abandon neutrality (either because it is impossible as Raz holds, or because it is undesirable as Barry holds) and have the liberal state commit to some conception of the good. An elaboration of Barrys argument follows. For this author, the only way to solve this paradox is if citizens in liberal, pluralist democracies are required (or taught?) to hold their views to some sort of popperian fallibilism. Since nonliberals can never be sold the principles of neutrality, liberals should endorse this principle and require from their citizens the notion that their views be held with this attitude. Thus, the fact of tolerating something we find intolerable results less paradoxical if we think of a kind of intellectual humility that carries a reasonable doubt about the veracity of all our beliefs.

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This skepticism or fallibilism is not unique to liberalism or to Barry. In a way, toleration has always been compatible with certain forms of Christian theology and tradition. It is not called skepticism but humility. Mitchell (1993) holds that Christian humility is fully compatible with pluralism and toleration because when one recognizes that human knowledge is always partial and that God cannot be fully understood within the human experience then there is no right to impose ones beliefs on others. This concept combined with that of charity provide the foundations of a Christian toleration that relies on a more closely knit community. However, in the liberal tradition it takes the form of skepticisim about ones own beliefs or popperian fallibilism (which is a particular case of the first concept). The requirement of fallibilism is not wide enough in the sense that in a Rawlsian analysis, it would be considered just another comprehensive doctrine in the political realm. As was mentioned earlier in this investigation, Barrys popperian fallibilism is but a special case of the requirement for reasonableness in the rawlsian contractual polity. It is yet another example of a restriction that violates state neutrality in the attempt to anchor the foundations of the liberal polity to certain principles or attitudes. Furthermore, this solution to the paradox of toleration has been criticized for imposing a condition too restrictive to solve the problem (Curc, 2007). An example of this can be found as close to us as one of the major western religions. Whereas Christianity has at the center of its core beliefs the mandate of Catechism, conversion and the salvation of all souls; Judaism is perfectly content with the adherence of those born Jewish and does not openly (at least most

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mainstream branches of Judaism) proselytize to non-Jews. In this way, a Jew may be completely dogmatic in his beliefs and as far away from popperian fallibilism as can be and still be perfectly content to leave his gentile neighbors alone in their misguided beliefs. This is perfectly consistent with Rawlss reasonableness, but perfectly opposed to Barrys fallibilism. There is yet another argument that defends toleration. It ties it directly to the value of autonomy. In it, Mendus argues that to solve the paradox of toleration we should make a distinction between moral arguments of the first order and moral commitments of second order (Curc, 2007). In this argument, moral commitments of second order are bound to the respect of a persons autonomy. This argument is close to the one advanced by Raz in which the value of toleration is linked closely with the value of autonomy. Mendus argues that the value of autonomy is a second order moral commitment and toleration ultimately rests upon that value. Thus, for Curc (who follows Menduss argument closely): The only thing that the liberal order requires from citizens is that they are capable of maintaining for any comprehensive reason whatsoever-, the commitment to respect the autonomy of others assuming what Rawls calls a reasonable attitude (Curc, 2007, p. 175) In the end, for Curc, the virtue of reasonableness that Rawls describes and that in his view, liberal democracies require from their citizens, not only does not imply

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that citizens should be good popperian fallibilists, but in fact excludes this possibility. Again following closely Menduss and Razs argument, he concludes that for liberal democracies to work some principles should be put well beyond a reasonable doubt; autonomy being the most important one of these. These last arguments put forth are part of a school that is being called perfectionist liberalism9, and has no problem in abandoning neutrality in favor of promoting certain liberal values. The practical issues raised by this commitment are far from trivial. When one endorses a wide vision of autonomy that includes not only the presence of choices, but also the assurance that individuals will have the necessary cognitive conditions to make use of those choices10, then the state is put in the position to enforce this autonomy by coercion. This position has been examined closely, and often, the State prefers to preserve its neutrality and shies away from the use of these coactive measures abandoning this commitment to autonomy. One prominent example of this is the decision of the US Supreme Court to be exempt from the compulsory school attendance laws of the State of Wisconsin and thus abandon school from the eighth grade on (Reich, 2002). In this case, the Court elected to allow the Amish child (and by precedent, all Amish children) to choose whether to go to public school or not; but also neglected to guarantee that the Amish children would have the formation that formal schooling provides in the subject of cognitive maturity. Without these cognitive preconditions, it is possible that these children

See Sandel, M. (1999). Liberalism and Republicanism: Friends of Foes? A Reply to Richard Dagger. The Review of Politics , 61 (2), 209-214. 10 I am referring to Razs arguments, as well as Reichs. See Raz, J. (1988). Autonomy, Toleration, and the Harm Principle. In S. Mendus, Justifying Toleration: Conceptual and Historial Perspectives (p. 288). Cambridge: Cambridge University Press; and Reich, R. (2002). Opting Out of Education: Yoder, Mozert, and The Autonomy of Children. Educational Theory , 52 (4).
9

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(although allowed a greater range of choices by the court) end up being less autonomous and less able to make use of these choices allowed. To be fair, not all the liberal defenses of toleration rest on the value of autonomy. There are some epistemic accounts of toleration that seem to arrive at conclusions that council toleration by asserting that some beliefs are epistemically better than others. For example, Landa (2008) sustains that there is a criteria to be applied to assert epistemic superiority of one doctrine over another: that of the openness of the doctrines to external ideas, or the possibility of self-actualization. Within this position, Rawls reasonableness condition is simply an assertion of one particular comprehensive doctrine over the others that completely violates neutrality. Thus, saying that comprehensive doctrines are allowed in the political realm only if they are reasonable regarding their beliefs is unnecessarily restrictive and at odds with the independence of moral ideals that the liberal state claims for itself. However, there are other reasons to claim the epistemic superiority of the liberal ideological construct versus the illiberal minorities. This argument focuses on openness or competition within doctrines. Thus, for Landa, the elements of illiberal practices that, raise barriers to receiving and processing information that may be relevant to the maintenance and updating of moral judgments (Landa, 2008, p. 25) are a way to distinguish between epistemically superior and inferior doctrines. If this competition of ideas is, to some extent, restricted within the illiberal group, then their final beliefs are of an inferior epistemic quality than those beliefs arrived at in the context of free flowing information. Thus, the liberal

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State does not have to tolerate illiberal internal practices within that group. As recognized explicitly by the author (Landa, 2008, p. 24) this view does not solve the problem of the treatment of groups that hold, within their belief structure, the value of closedness of ideas. This is problematic, because requiring these groups to open their beliefs to external ideas is too restrictive and in fact threatening to their survival. The advantage of this epistemic position is that it can counsel toleration on some cases while advising against it on others on grounds of the common good. In fact, this view is flexible enough to distinguish between closed groups that do not want to participate in the political process in society and closed groups who restrict the free flow of ideas to their members, but claim equal political standing in the decision making process of society. In his article, Landa (2008) differentiates between the Hutterites (who wish to remain impervious to all society, including the input of ideas from the outside but also the output of political participation of their members) with groups that, in his example, argue for home schooling but then demand equal political participation of their members. In the context of this view, the cost of tolerating the first is minimal to the common good; while the second do generate a problem for the liberal majority. However, one must keep into account that with these types of arguments the very definition of neutrality is violated in terms of the judgment of doctrines and the people that hold them. The principle of political neutrality is understood as a constraint of the actions of the state so as to not hinder (or help) any particular person or group from the persecution of his idea of the good life more than any

51

other person or group. In this way, arguments such as Landas, which establish a dimension that results in a scale with which to measure the intrinsic value of belief systems (that of openness in Landas case), abandon all claims to neutrality from the very foundation of their ideological constructs. There is yet another critique that has had incredible resonance in the academic community. This critique precedes the neutrality-reasonableness concern in many ways. It goes much deeper into Rawlss suppositions and epistemology. The next chapter deals with this critique.

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VI. Sandels Critique

The previous sections of this chapter have alternatively dealt with Rawlss ideas and his critics. I believe that the format chosen is easier to follow and less burdensome for the reader because it interpolates the original ideas of Rawls and the criticisms they have spawned. Also, I believe that the transition from a Theory of Justice to Political Liberalism is traced very succinctly when the criticisms on the first work are made before going into the second work. Finally, I chose this format because the centrality of toleration requires us to take a look under the hood of the complete theories of the relevant authors; but its individuality needs a particular treatment as it is a topic of its own. In this section I plan to deviate from this format. The reason is simple, I believe (and I am not alone) that Sandels critique of Rawlss Theory of Justice is much more fundamental than any of the others it has received. This is so mainly because it aims at the very foundation of Rawlss theory. Sandel does not agree with what A Theory of Justice states on the first page, and his differences are (at least in my opinion) irreconcilable. As such, the irreconcilable differences and the thorough critique serve a double purpose in this section, for I plan here to elaborate on Sandels critique and by doing so I will probably restate much of my interpretation of Rawlss work as closure to this chapter. I will also try not to lose focus on the subject of this investigation and I will try as often as possible to sketch

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the implications of Sandels critique and the toleration that they could eventually support. In his seminal work Liberalism and the Limits of Justice (2000), Michael Sandel starts by tracing and opposing two fundamental schools of liberalism. He talks about Mills theory of utilitarianism as a teleological doctrine that takes social utility as the sum of individual utility and aims to maximize this sum. In this way, utility corresponds to the utilitarian version of the good. In contrast, Kants theory does not define the good per se. Instead, Kant focuses on demonstrating the primacy of the right over the good thus making his theory a deontological one, in which the attention is on the means and not the ends (or on the right vs. the good). As such, justice is the virtue of the right and in Kants deontological doctrine it precedes the good and is defined independently from it. In other words, one need not specify the final object that morality seeks to achieve if one is successful in finding the right (or just) ways of getting to it. This conception of ethics and of the first principles of a well ordered society came about for a very valid historical reason, the fact that when justice is just an instrumental virtue that is in the service of a conception of the good it can be justified to deprive some individuals of their liberties with sights on a greater good. To Sandel, Rawls Theory of Justice is an adaptation of Kants deontological theory that attempts to exclude metaphysics as the ultimate justification and ground the theory on purely empirical grounds. As such, Rawlss theory cleanses the metaphysics out of Kant and attempts to find an Archimedean Point by
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resorting to the hypothetical construction of the original position. In this way, Rawlss original position serves as an empirical fixed point that cleanses Kantianism from its references to the world of ideas. Sandel calls it deontology with a human face. However, his main criticism stems from the fact that in his opinion deontology with a human face either fails as a deontological argument or recreates the non corporeal subject that is precisely the problem in Kants metaphysics. Thus, Sandel links Kants and Rawlss theories and proceeds to analyze the roots of their ethical theory. Kants deontological theory, and Rawlss subsequent modifications of it are the focus of Sandels work. For Sandel, this primacy of the right over the good can only be sustained (and in fact is sustained in Rawls) by a conception of the person that separates a subject that precedes and is distinct to her ends. This is because justice, defined as the right way of allocating resources and costs in society so that individuals can achieve their ends, can only be the primary virtue and superior to all others if the willful search of individual aims is the defining and foundational characteristic of every human being. Thus, Sandel devotes a large part of his work to analyze the possibility of such a subject and to think of the moral, epistemological and psychological assumptions that are behind such a conception of the person. The author focuses mainly on the primacy of the subject to his ends, but also on the primacy of justice over the other virtues (or the right over the good). He regards them as part of the same line of thought and stemming from the same assumptions. So, even if the subject and its separation from its ends are the main

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focus of his criticism; he starts by thinking about the primacy of justice to other virtues. One of the main concepts that he uses for his criticism is this search for an Archimedean Point and the distance that liberalism has to take from reality and people to achieve it. In the case of justice, one can either take a historically informed and contingent position or, as liberalism claims take a position that is beyond empiricism and experience. Both of these are wrong according to Sandel, because one takes too little distance from the world and the other one too much. In the case of the definition of subject and ends something similar happens. A subject that is completely separated from his ends would be nothing more than abstract consciousness, that is it would cease to be a subject; and a subject that is completely situated in her own personal experience would not be sufficiently general to build a theory upon. Thus, the distance one takes to find abstaction cannot be so large that it eschews the complexities of the reality one is meant to analyze. Here it is relevant to remember that Rawls draws much of his methods and some of his assumptions (particularly the original position and the methods of choice in A Theory of Justice) from economic theory and more specifically from rational choice theory. This, again, is a deviation from Sandels argument, but I believe that much of the criticism that economic theory has received over the past few decades applies to Rawls and is similar to the gist of Sandels problematic. This criticism basically focuses on the fact that positive economics has developed a set of models that, with mathematical precision and never before seen
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complexity predict the behavior of human beings that no one has seen on the street or heard of. In other words, the assumptions made to simplify reality and to reduce human nature to something that can fit a mathematical model were so gargantuan as to exclude any possibility of relating to the subjects of the model. Thus, for example, modern economists are criticized for assigning too little value to the desire for cooperation per se; or too much faith on the possibility of self-regulation through greed. Similarly, I believe that Sandels criticism is similar to this in that it asks Rawls to state what kind of human beings he is talking about when he says that they can be separated fully from their ends. In this respect he says that it is very possible that justice is the first virtue in some human communities. One can actually imagine these communities as societies where the fraternal and communitarian ties are very weak and the distribution of resources must be done by the rule of law. As such, the rules that assign to each person the rights and duties that correspond to them are the greatest concern of all the citizens. However, and contrary to what Rawls affirms, this case is rooted on contingent characteristics of certain societies and does not have to be the general case of all human polities. He asks us to think of communities, which by traditional and fraternal ties distribute their resources without any frictions. In this sense, justice would not be the primary virtue for them, nor its claims supersede those of all other virtues. He also asks us to think about physical courage, and the societies that would value it the most. In fact, physical courage has little value in peaceful societies but it was primordial when a polity was at war.

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Here I would like to add something that Sandel did not say explicitly, but that I believe is an extension of his argument. It is hard not to think that with his reference to physical courage and war Sandel is not implying something more radical. In many ways, liberalisms minimalist conception of the person and our fraternal and communitarian ties becomes a self-fulfilling prophecy. Maybe this same stress and indoctrination regarding the scarcity of resources and the tensions of distribution have succeeded in making us selfish utility maximizers. Maybe the fact that rational choice has permeated common knowledge so deeply has contributed to the weakening of fraternal and communitarian ties and thus to the primacy of justice in our liberal democratic societies. Back to Sandel. With this story, the author intends to demonstrate that Rawlss claims to universality and complete neutrality in the foundation of the principles that build his theory are false. However, these stories are also meant to instill in the reader that in order to claim the primacy of one value over all others one has to make certain assumptions about human nature and the primary constitution of a person. This is Sandels main point and this is precisely where he wants to draw the readers attention with respect to Rawlss theories. For Sandel, Rawlss conception of the person and his separation of a subject and his ends is the main flaw in his theory. The primacy of justice can only be justified if one thinks of a person that is separable in identity and configuration from ALL of her ends. The defining characteristic of this person then, is not any of her interests, desires, belongings or ties to other persons, but her capacity to choose. In this sense, volition is made the defining characteristic of humanity, and

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the free choice of ends its manifestation. This, according to Sandel, has been a common trait in all of liberalism. This current has always characterized the person as an individual as a free and rational agent whose main characteristic is the capacity for autonomous choice, who chooses her own means freely and gets to her purposes by her own free will. However, this abstraction reduces people to something they are not, and thus gets wrong conclusions about the nature of persons and identity. Volition is only half of human identity, where the other part is cognition. This means that often, our interests and ends are so intertwined with our identity that there is no distance to separate a distinct subject from them. This means that sometimes our commitments to community and family, and our choices in the realm of identity are not things we own but things we are. There is no distance to separate the individual from his choices and often, the role of our lives is cognitive in the sense that we need to discover who we are in order to know where we are going instead of choosing in an unconstrained scenario our interests and ends. Think, for example, of Okins objections to Rawls. Her example of women raised in the midst of ideologies and cultures that assign them, based on gender, inferior roles in society. Sandel would probably say that many of these conservative dogmas probably lie at the base of the identity of these women who end up reproducing these social norms with their kids. You cannot separate the traditional catholic from her religion; any more that traditional catholic is part of her identity and not her choice.

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But what, asks Sandel, do all these objections have to do with the theory of justice? The logic is simple. If the theory of the person and of its defining characteristics is wrong, then the whole precepts of the theory are too. This conclusion stems from the following argument. Rawlss Archimedean Point is precisely the original position and the contract struck under the veil of ignorance. Before this he assumes only that people have independent preferences, which is that a priori I have no considerations for the welfare of others11; and that knowledge about the circumstantial (or morally irrelevant) matters of the world remains unknown to the subjects. This presupposes that one can remove the circumstantial from a person and still have a subject, capable of volition to make choices and strike agreements. This is exactly what Sandel rejects. Once we have gone through Sandels critique, and understood its full scope, there remains the issue of its relation to our subject matter: toleration. It so happens that Sandels criticism is crucial to this virtue, because the relationship between the subject, its identity and otherness are the defining characteristics of it. The relationship between individuals and the groups that they belong to and the way we understand this relationship is crucial for the toleration we accept and the way we justify it. As the reader may recall, rawlsian toleration was always subject to individual freedom of choice. In fact, it was always conceived as an individual freedom that, through the neutrality of the state, provided citizens with an arbiter

11

Both Sandel and Rawls find it worthwhile to stop and clarify this statement. Having independent preferences from others does not mean that I cannot take altruism up as one of my ends; it only means that there is no rule for me to do so. In fact, Rawlss precepts never exclude that once the two principles of justice are agreed to, people decide to live altruistically and to have a sense of community.

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to guarantee the individual freedom of conscience. Sandel argues in his article Moral Argument and Liberal Toleration: Abortion and Homosexuality (1989) that neutrality and autonomy are inextricably linked in these types of arguments. Sandel argues that at the bottom of these arguments lies always a deeply held conception that human beings are free to choose their identities and opinions. Thus, the value of privacy and its centrality in constitutional law has gained momentum and protected a wider variety of acts. At first, privacy was just a right to withhold information from the state and be free of surveillance from it; whereas now, privacy protects the pursuit of activities without hindrance from the state. The first privacy rights were accorded to maintain the sanctity of the marriage bond and to acknowledge the fact that its product was good for society. As this definition of the value changed, so did its justification, arriving slowly at an autonomous conception of individuals that choose their identities and are completely free to execute their decisions. Thus the language of autonomy and neutrality are used to justify privacy. However, this purported neutrality is, in a way similar to Barrys concern, not neutral at all, for it presupposes a solution to the same morality reason that it is trying not to judge. Sandels example is with the case of abortion. In the landmark decision of the supreme court on abortion (Roe vs. Wade, 1973), Sandel claims that the majority opinion claimed to be neutral on the question of whether a fetus is regarded as a life or not, but in reality was far from it. What the court effectively did was to strike down Texass law prohibiting abortion because it upheld a particular view of when life begins (at conception according to this law).

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However, in order to make law, the court had to adhere to a theory of its own on the issue. This reminds us of Razs condemnation of the pursuit of neutrality as chimerical, because one gets the feeling that it is not that the court wanted to deviate from neutrality, the fact is that they had to in order to make law. As such, they ended up endorsing the viability theory where the definition of life is linked to the viability of the fetus. In Sandels own words, this decision, does not replace Texas' theory of life with a neutral stance, but with a different theory of its own (1989, p. 13) The other case that Sandel mentions, is the protection of homosexual acts under the cloak of the right to privacy. The author argues that the reason that the New York Court of appeals used to justify the protection of consensual adult homosexuality was the concept of liberal privacy as described above. As such, the defense did not tie homosexuality with any particular conception of the good, but only decided to include it under the protection of privacy. What Sandel is saying regarding toleration with these two cases is that sometimes, the neutral approach that sustains toleration by constricting the power of the state to decide on moral matters is sometimes very appealing. In the authors own words: The case for toleration that brackets the morality of

homosexuality has a powerful appeal. In the face of deep disagreement about values, it seems to ask the least of the contending parties. It offers social peace and respect for rights without the need for moral conversion. Those who view sodomy as sin need not be
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persuaded to change their minds, only to tolerate those who practice it in private. By insisting only that each respect the freedom of others to live the lives they choose, this toleration promises a basis for political agreement that does not await shared conceptions of morality. (1989, p. 17) However, despite its attractiveness this vision of toleration raises difficult questions in its operation. In this case, the author reminds us that the first concessions to privacy were made on the basis of the marital union and the sanctity it deserved. In this sense, it was the pursuit of a consensual good that urged the court to protect privacy, and only later did this form of reasoning extend to abortion and homosexuality. His second concern is that of the treatment of that which is tolerated. In the courts decision to protect homosexuality as a private act, the court refused to acknowledge that permitting homosexual individuals the right to choose their partners and pursue their goals is a good to society. Instead, the argument was based on previous jurisprudence on the right to have obscene materials in ones bedroom. Thus, homosexuality is publicly demeaned. This action is neither neutral nor tolerant. Thus, the problem with neutral toleration is that it leaves the predominant views as they are, only changing the policy implication. For Sandel, toleration requires at least respect and appreciation, not only a refusal to act.

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VII. Communitarianism and republicanism

Precisely where liberalism tries to cleanse politics of history and sociology, communitarian and republican12 schools assimilate these elements to the heart of political philosophy. In this way, both traditions abandon the pretension of

neutrality that the liberal state defends to actively engage the communitarian or republican state with a specific, contingent, and historically informed conception of the good society. In Waltzers words: Philosophy has to be historically informed and sociologically competent if it is to avoid bad utopianism and acknowledge the hard choices that must often be made in political life. (Waltzer, 1997) For these thinkers the paradox of toleration does not exist because they allow for the possibility that the State put itself above some individual rights (in some circumstances particular to each thinker) to protect a particular notion of the common good. Following these arguments, Waltzer defends the idea that the concept of toleration that a particular society endorses is only valid in the historical concept in which it operates. This is the reason that the concept has varied over time. In this way, the liberal tradition of defending the neutrality of the State and freedom of association is, for Waltzer, only one of the examples of tolerant societies that have occurred throughout history.

12

I will clarify some important differences that exist between both schools. For the moment, taking them together allows me to focus on their common traits and contrast them more clearly with liberal schools. A good argument for taking them together is found in Gargarella, R. (1999). Las teoras de la Justicia despus de Rawls. Paids.

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Kymlicka (although himself an avowed liberal) is very articulate in explaining his concerns with the liberal view of toleration. He agrees with Waltzer in the weakness of Rawlss argument that binds toleration inseparably with individual freedom of conscience (Kymlicka, 1992). For the author, the de facto definition of toleration as individual freedom to choose ones beliefs is only a particular case that came into existence in the context of modern western democracies. To prove this, Kymlicka mentions an example in which religious toleration is ensured within a model of group rights. Many authors have used this example to analyze the model of toleration within the context of group rights; it is the model set by the Ottoman Empire with the Millet System13. In this system, rather than enforcing the separation between Church and State, this bond is strengthened by giving each religious group a set of political rights aimed expressly at a limited form of self-government within Ottoman rule. The religious elites inside each community had certain rights to govern over their faithful. This way, in the Millet system, religious toleration among groups was respected without giving individuals (or taking away from religious elites) the right to choose their own beliefs individually (or the right to coerce belief among their flock). Kymlicka mentions explicitly that this type of system is acceptable for religious groups given the fact that more often than not, they are much more worried about internal dissent (heresy and apostasy) than external attacks to their faith (Kymlicka, 1992). Thus, in this system, religious groups abandoned gladly their pretensions of ideological dominion over others in

13

See Waltzer, M. (1997). On Toleration. Binghamton, New York: Yale University Press and Kymlicka, W. (1995). Contemporary Political Philosophy: An introduction. New York: Oxford University Press.

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exchange for their right to coerce orthodoxy within their communities. The Ottoman Empire, under the Millet system, was a very tolerant regime, although expressly anti-liberal because it did not permit individual freedom of conscience14. This is an obvious choice of group rights over individual freedoms. Kymlicka chose the Millet system purposefully to show, that toleration can be (and historically has been) compatible with a system different to liberalism that rejects expressly the value of individual autonomy as conceived by liberalism. He also chose it to demonstrate that, contrary to Rawlss thesis, the undeniable fact of pluralism is not enough to place individual rights in the center of the construction of a good society. In this way, the challenge that Kymlicka seems to offer Rawls is that, to defend individual rights as the foundation of a theory of justice an express commitment is required not only with toleration but with individual autonomy as a value on its own. As the next section will (hopefully) clarify, this conclusion has been reached by different schools of thought and by different dialectical methods. The problem with this conclusion is that the commitment to the value of autonomy per se that is required to justify individual rights as the unit of a theory of justice involves abandoning the neutrality of the state that liberals avow. The fact that between two societies that are equally tolerant (suppose for example, a modern liberal democracy and the Ottoman Empire during the Millet rule) but one endorses individual autonomy and one doesnt the judgment that one is better than the other is committing to the inherent value of autonomy. Kymlicka argues that this violation of neutrality is inevitable from the standpoint of liberalism and

14

Also, and perhaps more importantly, it did not endorse autonomy as defined by Raz.

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that the value of autonomy is the best defense of toleration that liberals have. However, he recognizes the impossibility of imposing this conception to minority groups that do not endorse the value of autonomy (Kymlicka, 1992). This way, Kymlicka is a liberal that is reticent to impose liberalism on nonliberals. This hesitation has a lot to do with the concept of neutrality that liberalism has endorsed. Neutrality is crucial for the liberal argument, because it is through neutrality that the liberal outlook places itself over every other comprehensive doctrine and aims to administer this plurality of conflicting views. When liberalism abandons neutrality it becomes just another doctrine that has to be justified by adhering to a particular notion of the good. This moral defense is precisely what rawlsian liberalism tried to avoid and the reason that, according to communitarian and republican authors, liberals cannot affirm the supremacy of their doctrine over any other. In the end, every society must judge by itself the type of values that will promote from a moral point of view. Adopting this point of view, in which the moral value of a society can and should be judged according to the results that it produces gives authors within these schools the faculty to distinguish between types, degrees or qualities of toleration. Where toleration is more than anything a restraint of action in the liberal camp, nonliberals can afford the luxury of a much more ample definition that distinguishes gradation. In particular, Waltzer describes five degrees of toleration. First, referring explicitly to the origins of religious toleration in the sixteenth and seventeenth centuries, Waltzer mentions toleration as resigned acceptance of

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difference for the sake of social peace15. The second degree of toleration refers to a passive, benignly relaxed attitude towards difference, an indifference to difference. The third level consists of a moral stoicism; a recognition that other have rights even if they are used in ways unattractive to me. A fourth level consists of openness to others, even respect and curiosity. Finally, Waltzer speaks of a fifth level as a positive valuation of diversity (Waltzer, 1997, pp. 10, 11). It is not surprising that the type of toleration described by Barry resembles closely Waltzers first level of toleration, while Razs argument echoes the third level. Waltzer is openly describing some sort of historical development that has been going on in the western world. Liberalism, concerned with the assurance of a basic minimum or individual rights, the protection of minorities and the separation of domains limits itself to guarding the most basic level of toleration without restricting the formation of a higher level of commitment within a community. The main tension between communitarian and republican perspectives and liberalism is the choice between the right and the good; the choice between the community and the individual. The last section reviewed that the argument for toleration must necessarily pass through autonomy in the liberal tradition. This section aims to expose the problems that communitarian and republican thinkers have with the value of autonomy. For Waltzer, the contemporary problem with toleration (and with autonomy) resides in the fact that if we consider every citizen to be an individual independent from his o her community then we have no communities to keep

15

Recall Barrys first argument in pg. 2 and in Barry, B. (1990). How Not to Defend Liberal Institutions. British Journal of Political Science , 1-14.

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making independent individuals. According to this author we need communities to form these individuals who are parasitic of them when they are considered independently and their autonomy is protected individually (Waltzer, 1997). Sandel makes a similar point from the republican camp. He argues that liberalism has traditionally advanced two concepts of autonomy. The first concept is linked to individual choice. This is, in a way, the negative autonomy that is respected when people can live their lives without interference. The other is the Kantian concept of autonomy as self-rule. This is respected when a person acts according to the categorical imperative (Sandel, 1999). According to Sandel, autonomy has been advanced (from the liberal perspective) as a solution to the excesses of republicanism as it protects the individual from the tyranny of the majority. He addresses each concept of autonomy separately. For the first concept he explains why he does not agree stating that the excesses of republicanism have nothing to do with the fact that as a doctrine it is not afraid of choosing a conception of the good, but rather with the fact that it does not readily allow for deliberation in the determination of this good. As for the second concept of autonomy, Sandel argues that it is precisely this commitment to a unitary and not subject to deliberation version of the good that constitutes the most dangerous part of republicanism (Sandel, 1999). Both these authors would certainly agree that the value of toleration is important only insofar as it does not conflict with the particular view of the common good that is held in a society. They would both assign to the State the power to interpret on a case by case basis if the rights of an individual are not in
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conflict with the good of the whole society. In this way, the divide between the liberal and the non-liberal schools appears fairly rigid and unbreachable. The next section tries to conclude on a possible alternative to this apparent schism.

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VIII. Conclusions: Agonism, perfectionism, and liberal faith

From the arguments revised throughout this investigation, it can be said that the defense of toleration rests, ultimately on the value of autonomy. Furthermore, this investigation suggests that the value of autonomy is intimately linked with neutrality, and that the adherence to neutrality is highly problematic even within the liberal tradition. The alternatives put forth involve the challenge to the liberal state to actually commit to some version of the good. This commitment is of capital importance because even a minimal definition of some values that are good in and of themselves would help solve the paradox of toleration; however, this solution would forcibly have to come at the expense of state neutrality. From a different perspective, the problems addressed by this investigation can also be taken as the requirements that a liberal democratic regime has to impose (whether explicitly or implicitly) on its subjects in order to thrive. Rawlss reasonableness, Barrys fallibility and Menduss commitment to second order moral imperatives are all obligations that citizens must fulfill in order to live peacefully within a liberal democracy. These requirements also violate State neutrality, given that they are valued by the State in the same measure that it requires them from its citizens. However, this violation of neutrality need not be a bad thing; on the contrary, it is possible that in this very abandonment of neutrality lies the salvation of the liberal State.

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So, the question invited by both these conclusions is about the inevitability of the abandonment of neutrality. It appears that there is more and more consensus around the perfectionist view of liberalism that abandons the idea of neutrality and endorses a particular conception of the good. It is also my view that the state should commit to some version of the good and judge citizens, outcomes, and comprehensive doctrines accordingly. In this debate on neutrality and perfectionism within liberalism, the inevitable problem is the length to which the state can endorse a particular conception of the good and coerce its citizens to follow it. On the subject of toleration, these thinkers would endorse a policy where the State does not tolerate the intolerant and where toleration has limits as a negative liberty. Now, from the side of republicanism and communitarianism, the quarrel lies elsewhere. As Sandel puts it, both republicanism and perfectionist liberalism have no problem with endorsing a common conception of the good (Sandel, 1999). The problem is now, which conception is better. This invites a thorough debate that often separates republican and communitarian thinkers, where the latter tend to have more historic perspectives of the common good. In the end, all of the schools mentioned above can be accommodated in a continuum where, at one extreme lie the procedural accounts of democracy with the primacy of the right over the good; and, at the other the agonistic accounts with their faith on the transformative powers of democracy (Deneen, 2005). It is these agonistic accounts that rely on perfectionism to set the goals of the political in the future with a belief in the power of democratic institutions to transform citizens.
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On the other hand lies the skepticism of procedural thinkers that rely on rules, institutions and pure reason to guard the principles of equality that political philosophy pursues. The problem is, put succinctly, that the procedural thinkers are too worried about the tyranny of the State and thus attempt to cleanse it from all moral authority; whereas the agonistic thinkers are too quick to define the common good, sometimes in spite of certain minorities. Thus, the solution may lie, as Deneen holds, in a middle ground between both views that lets us aspire to perfection while retaining some skepticism about human nature. In his own words, Democratic realism results in a strong articulation of political and more profound human equality not premised upon our eventual or ultimate perfectibility, on the one hand, nor upon the theoretical realization of our individual capacities within a meritocratic order, on the other (so-called equality of opportunity) but rather an equality born of our shared dependency and mutual insufficiency, and therefore a concomitant recognition of our shared obligations to, and concern for, one another. (Deneen, 2005, p. 435 (Kindle ed.)) I believe that the objective of curing the excesses of liberalism is a worthy one. The (justified) fear of state coercion has possibly left us with liberal states that cannot (or will not) say anything about anything, and that is also a tremendous loss. The need to cleanse political philosophy of all its ties to society and

circumstance, and the struggle to build a neutral discipline have maybe gone too far; maybe what we need now is a State that can tell us something about the good
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life. As I mentioned before, I believe that even a commitment to one or two basic principles can help build a State that has valuable things to say about the way we should lead our lives.

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