Hostname: page-component-cd9895bd7-gbm5v Total loading time: 0 Render date: 2024-12-26T04:27:27.908Z Has data issue: false hasContentIssue false
  • English
  • Français

The Cultural Limits of Legal Tolerance

Published online by Cambridge University Press:  20 July 2015

Benjamin L. Berger
Get access

Extract

This article presents the argument that our understanding of the nature of the relationship between modern constitutionalism and religious difference has suffered with the success of the story of legal tolerance and multiculturalism. Taking up the Canadian case, in which the conventional narrative of legal multiculturalism has such purchase, this piece asks how the interaction of law and religion - and, in particular, the practices of legal tolerance - would look if we sought in earnest to understand law as a component, rather than a curator, of cultural diversity in modern liberal societies. Understanding the law as itself a cultural form forces us to think about the interaction of law and religion as an instance of cross-cultural encounter. Drawing from theoretical accounts of cross-cultural encounter and philosophical literature about the nature of toleration, and paying close attention to the shape of Canadian constitutional doctrine on religious freedom (law’s rules of cross-cultural engagement), this paper suggests that legal toleration is far less accommodative and far more assimilative than the conventional narrative lets on. Influential alternative theoretical accounts ultimately reproduce this dynamic because they similarly obscure the role of culture on both sides of the encounter of law and religion. Indeed, owing to the particular features of the culture of law’s rule, even the more thickly cultural "solutions" proposed in dialogic theory ultimately fail. In the end, this article exposes the very real cultural limits of legal tolerance.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 21 , Issue 2 , July 2008 , pp. 245 - 277
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2008

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

I am grateful to Paul Kahn, Robert Leckey, Andrew Petter, Rosemary Hicks and the participants in the Spring 2008 Legal Theory Workshop at McGill University for their comments and suggestions in the development of this article. This piece was greatly enriched by the comments of the participants in After Pluralism, a two-part interdisciplinary workshop that took place at the University of Toronto and Columbia University. Particular thanks are owed to Tomoko Masuzawa and Natalie Zemon Davis, whose kind encouragement and incisive responses to an early version of this article at this workshop were crucial to its development, and to Courtney Bender and Pamela Klassen who organized this tremendous interdisciplinary interchange. Finally, many thanks to Micah Weintraub and Lindsay Watson for their editorial assistance and to the Canadian Journal of Law and Jurisprudence, under the editorship of Richard Bronaugh, for the efficiency and professionalism with which they shepherded this article to print.

1. Cited in Brown, Wendy, Regulating Aversion: Tolerance in the Age of Identity and Empire (Princeton, NJ: Princeton University Press, 2006) at 48.Google Scholar

2. Whether these legal successes have translated into political gains for these groups is yet another question. I suspect that the nature and concomitant political effects of legal tolerance described in this piece apply in analogous ways to these groups as well.

3. In her fascinating book considering the contemporary state of laws protecting freedom of religion in the United States, Sullivan writes of a “growing disjunction between the expectation of both these fissiparous communities and their members with respect to their right to self-determination as religious communities and the realities of legal regulation.” ( Sullivan, Winnifred Fallers, The Impossibility of Religious Freedom (Princeton, NJ: Princeton University Press, 2005) at 153.Google Scholar)

4. In this vein, Sullivan complains that theorists “tend to work with a definition of law as problematic as that of religion. There is a tendency to accept modern law’s representation of itself as autonomous, universal, and transparent. Such a representation makes religion, not law, the problem” (ibid.).

5. In her study of the political discourse of tolerance, Brown identifies the idea that politics and law are autonomous from culture as one of the two core “conceits” of liberal orders, conceits with which the idea of tolerance, which I address later in this article, powerfully interacts. See Brown, supra note 1 at 166ff. Specifically, having first noted that moral autonomy is viewed as both the goal of tolerance and the antithesis of rule by culture, Brown argues that “[t]he twin conceits of the autonomy of liberal legalism from culture and the autonomy of the self-willing and sovereign subject from culture enable liberal legalism’s unique positioning as fostering tolerance and liberal polities’ unique position as capable of brokering the tolerable” (171). And if the capacity to engage in toleration is also a mark of civilization, Brown argues, liberalism thus becomes definitional of civilization and the tolerated becomes definitionally uncivilized or “barbaric.” Martha Minow similarly notes that tolerance “perpetuates assumptions that some—who put up with others—are actually superior to those others. … [T]he very injunction to put up with others may be experienced as putting down some ways of life.” ( Minow, Martha, “Putting Up and Putting Down: Tolerance Reconsidered” (1990) 28 Osgoode Hall L.J. 409 at 410.Google Scholar)

6. Religious individuals living in Canada occupy, of course, both the religious culture in question and the culture of the constitutional rule of law, in addition to a range of possible other cultures. As such, the culture of law also makes claims upon the religionist in many settings and the individual is, in many instances, faced with intersecting theories and practices of meaning. My more Manichean framing of the issue is not meant to deny this reality. Casting the issue in the way that I have is, however, both heuristically useful and a reflection of my focus on those points at which religion becomes the subject of the adjudicative scrutiny of the law; points at which, among the various cultures potentially at play in both individual and public life, the interaction across religious and legal culture becomes especially salient.

7. Indeed, this bracketing of the core assumptions of the law even as space is left open to assess the just is an intrinsic feature of law’s rule. Law mediates all conflict by bringing to it a kind of “bounded openness.” The openness reflects the indeterminacy recognized in the statement that there is a “conflict” and not simply a “breach” or “violation” of the law or of some right. Yet that openness in which the exploration of the indeterminacy and ultimate resolution will take place is bounded by sets of procedures and assumptions that are precisely what make the situation one of law and not the state of nature. I am indebted to Paul Kahn for drawing this point to my attention.

8. Kennedy, W.P.M., Statutes, Treaties and Documents of the Canadian Constitution 1713-1929, 2nd ed. (Toronto, ON: Oxford University Press, 1930) at 31.Google Scholar

9. Ibid. at 23.

10. For the history of the development of the policy of official multiculturalism in Canada, see Magnet, Joseph Eliot, “Multiculturalism and Collective Rights” (2005) 27 S.C.L.R. (2d) 431 Google Scholar and Jedwab, Jack, “To Preserve and Enhance: Canadian Multiculturalism Before and After the Charter ” (2003) 19 S.C.L.R. (2d) 309.Google Scholar Both articles demonstrate the evolution of the concept since the official adoption of the policy in October of 1971 to its current form, influenced by the Charter. Both also assess the impact and potential role of s. 27 of the Charter, which declares that “[t]his Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.” Jedwab provides evidence of the strong public support for multiculturalism and Magnet emphasizes the pervasive political influence of this policy in Canada, stating that “[m]ulticulturalism is a principle which has suffused the energies radiated by all segments of Canada’s governmental structure” (437). Magnet also provides a brief summary of some of the critiques of multiculturalism from both the left and the right, ultimately defending the policy against both sets of charges. See also Kymlicka, Will, “Canadian Multiculturalism in Historical and Comparative Perspective: Is Canada Unique” (2003) 13:1 Const.Google Scholar Forum Const. 1, in which Kymlicka reviews the history of Canadian multiculturalism, arguing that, from a comparative perspective, the distinctiveness of multiculturalism in Canada does not lie in the idea, approach, or particular achievements of multiculturalism. Indeed, he argues that multiculturalism is a broader trend in modern Western nations and that, in fact, other countries may well have dealt better than Canada with issues of immigration, Indigenous peoples, or sub-state nationalisms. Rather, Canada’s distinctiveness lies, first, in the breadth of multicultural issues that Canada has had to face—in particular that it has had to face all three of these categories of issue at the same time—and, secondly, in the extent to which multiculturalism has become central to the way that Canadians think about the country. On this latter point, he writes that “[w]hile the actual practices of accommodation in Canada may not be that distinctive, we are unusual in the extent to which we have built these practices into our symbols and narratives of nationhood” (4).

11. Dallmayr, Fred, Beyond Orientalism: Essays on Cross-Cultural Encounter (Albany: SUNY Press, 1996).Google Scholar

12. Ibid. at 3. The historical result of such interactions is always messier than such heuristic idioms can capture. For example, with his concept of “hybridity”, Homi Bhabha emphasizes the manner in which even in the colonial relationship, the colonizer is deeply influenced by the colonized, which in turn affects the nature of authority structures. See, e.g., Bhabha, Homi, The Location of Culture (London: Routledge, 1994), especially at 112–16.Google Scholar Tully, James similarly emphasizes “the overlap, interaction and negotiation of cultures” in his account of cultural difference in Tully, James, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995) at 13.CrossRefGoogle Scholar

13. Dallmayr, supra note 11 at 9.

14. Ibid. at 9. Dallmayr notes that, from the perspective of the colonized, conquest can be understood as yet another mode of encounter—the mode of “conflict” (30).

15. Ibid. at 9-10.

16. Dallmayr is vague on the role of force in this and his other modes of encounter. Presumably, conversion can take the form of violent imposition, rhetorical persuasion, or something between the two. Again, however, I am only interested in Dallmayr’s taxonomy so far as it is useful as a device in gaining insight into the nature of the cross-cultural interaction of law and religion. Beyond this, I am not committed to the particulars of his scheme.

17. Dallmayr, supra note 11 at 14.

18. Ibid. at 24. Dallmayr notes, however, that the results of cultural borrowing can be various, ranging from “complete absorption of foreign ingredients in the prevailing cultural matrix” to “reciprocal give-and-take” or even “genuine self-transformation” (18). In any case, such borrowing requires “a willingness to recognize the distinctiveness of the other culture, coupled with a desire to maintain at least some indigenous preferences” (18).

19. Ibid. As Bhabha and Tully, supra note 12, make clear, a degree of mutual influence short of this posture of cultural borrowing takes place even in modes of conquest or conversion. The historical case of the Spanish conquest of Latin America is a powerful case in point. Dallmayr himself recognizes that “concrete historical examples tend to resist neat labeling and to range frequently across a whole spectrum of possibilities” (18).

20. Dallmayr, supra note 11 at 31.

21. Ibid. at 36. See also Todorov, Tzvetan, The Conquest of America: The Question of the Other, trans. by Howard, Richard (New York: Harper & Row, 1984).Google Scholar An interesting question is whether true openness to dialogue and its effects is commensurable with an a priori commitment to preservation of one’s own cultural distinctiveness.

22. As I will discuss in detail below, Dallmayr is not alone in holding this commitment to dialogic modes of cross-cultural engagement. See, e.g., Tully, Strange Multiplicity, supra note 12; Connolly, William, Identity/Difference: Democratic Negotiations of Political Paradox, expanded ed. (Minneapolis: University of Minnesota Press, 2002)Google Scholar, advancing an approach that he calls a “discursive ethic of cultivation” or an “ethic of agonistic care.”

23. Dallmayr, supra note 11 at 24.

24. Ibid. at 28. Dallmayr explains that “proceduralists take for granted existing contrasts between ways of life, while seeking to mitigate them through a thin consensual layer composed of shared general rules. Once this layer is removed, contrasting life-forms or beliefs face each other in unmediated fashion, which may result either in indifference or (more commonly) in mutual repulsion and conflict.”

25. Kennedy, supra note 8 at 47-48.

26. One might object that by focusing on the jurisprudence, I am over-privileging the judicial voice in constructing the mode of cultural engagement between law and religion. To the extent that there is some narrowing of focus in this approach, it is justified for at least two reasons, one a conceptual claim and one a matter of local fact. First, when attempting to understand the claims made by the rule of law there is something heuristically useful in a focus on the courts. When an issue of religious freedom comes before the courts, given the institutional role and constraints of the judiciary, the result and reasoning necessarily involve a set of claims about the relationship between the rule of law and religion. As George Grant wrote, “[t]heories ofjustice are inescapably defined in the necessities of a legal decision.” ( Grant, George, English-Speaking Justice (Toronto, ON: House of Anansi Press, 1985 [orig. pub. 1974]) at 69.Google Scholar) By contrast, when an issue appears before Parliament or a legislature the possibilities for and modes of response are more open. They can, for example, choose not to act or might not set the issue in a constitutional or rights-based register. In either case there is no clear statement being made about the relationship between religious culture and the rule of law. The second reason for this focus on the courts is one grounded in the nature of debate about the rule of law and the current shape of politics in Canada. Particularly since the introduction of the Charter, the courts have been both viewed and treated as the authoritative speakers about the shape and claims of the rule of law. Even when the leg-islatures and Parliament have chosen to cast an issue in a constitutional and rights-based register, their terms of reference have been overwhelmingly those taken from the law as spoken by the courts. To many this is a lamentable state. As scholarship about legislative and popular constitutionalism suggests, this juricentric vision of the constitutional rule of law is not the only way of thinking about constitutionalism and rights interpretation. See, e.g., Sager, Lawrence G., “Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law” (1993) 88:1 Nw. U. L. Rev. 410 Google Scholar; Post, Robert C. & Siegel, Reva B., “Legislative Constitutionalism and Section Five Power: Polycentric Interpretation of the Family and Medical Leave Act” (2003) 112 Yale L.J. 1943.CrossRefGoogle Scholar It is, however, the way things currently are in Canada. In this sense, in a work aimed at generating a more satisfying account of the relationship between religion and the constitutional rule of law in Canada, a focus on the jurisprudence is justified.

27. R. v. Big M. Drug Mart, [1985] 1 S.C.R. 295 [Big M.].Google Scholar

28. Ibid. note 27 at 336.

29. The “essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination” (ibid).

30. Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 at para. 1 [Amselem].Google Scholar

31. Ibid. at para. 87.

32. Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710 at para. 21 [Chamberlain].Google Scholar

33. Amselem, supra note 30 at para. 87. In Regulating Aversion, Wendy Brown emphasizes and critiques the centrality of the concept of tolerance in modern multicultural democracies, asking how and why it is that tolerance has become “a beacon of multicultural justice and civic peace at the turn of the twenty-first century” when “[a] mere generation ago, tolerance was widely recognized in the United States as a code word for mannered racialism” (supra note 1 at 1).

34. Amselem, supra note 30 at para. 1.

35. Ibid.

36. On the one hand, in Big M., the Court stated that religious freedom was “subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others” (supra note 27 at 337). On the other hand, in B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 at 383-84 [B.R.]Google Scholar, Justice La Forest, writing for the majority of the Court, stated that the Court had “consistently refrained from formulating internal limits to the scope of freedom of religion in cases where the constitutionality of a legislative scheme was raised; it rather opted to balance the competing rights under s. 1 of the Charter.”

37. Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256 [Multani]Google Scholar. The Court confirmed, at para. 26, that it had “clearly recognized that freedom of religion can be limited when a person’s freedom to act in accordance with his or her beliefs may cause harm to or interfere with the rights of others” but emphasized that it had “on numerous occasions stressed the advantages of reconciling competing rights by means of a s. 1 analysis.”

38. Reference re: Same-Sex Marriage, [2004] 3 S.C.R. 698 [Same Sex Marriage Reference].

39. See Gray, John, Two Faces of Liberalism (New York: The New Press, 2000).Google Scholar

40. Williams, Bernard, “Tolerating the Intolerable” in Mendes, Susan, ed., The Politics of Toleration in Modern Life (Durham, NC: Duke University Press, 1999) 65 at 65.Google Scholar See also Halberstam, Joshua, “The Paradox of Tolerance” (1982-83) 14:2 The Phil.Google Scholar Forum 190. Halberstam also sees a paradox in the idea of tolerance, but constructs it somewhat differently: “genuine tolerance is in fact impossible for anyone. An examination of just why the true believer cannot be tolerant uncovers the less obvious conclusion that any conviction potentially precludes tolerance toward dissidence from that conviction. Yet at the same time it is only those with convictions who can be tolerant, for it is only when one has a strong belief that a different point of view can be considered an opposing view toward which tolerance is possible. Thus when tolerance is contextually possible, it is untenable; tolerance, I want to suggest, is paradoxical” (190).

41. Williams, supra note 40 at 65. See also Forst, Rainer, “The Limits of Toleration” (2004) 11 Constellations 312 CrossRefGoogle Scholar, who, in providing his definition of the concept of toleration, articulates the “objection component”, which holds that “it is essential for the concept of toleration that the tolerated beliefs or practices are considered to be objectionable and in an important sense wrong or bad” (314).

42. BigM., supra note 27 at 336.

43. Williams, supra note 40 at 65.

44. See R. v. Oakes, [1986] 1 S.C.R. 103 at 136Google Scholar: “The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.” See also Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429 at para. 353Google Scholar, Arbour J: “it would not be far from the truth to state that the types of limits that are justified under s. 1 are those, and only those, that not only respect the content of Charter rights but also further those rights in some sense—or to use the language of s. 1 itself, “guarantee” them—by further advancing the values at which they are directed” [emphasis in original].

45. Law never really meets religion; instead, it always engages its own projected image of religion’s nature and value. See Benjamin L. Berger, “Law’s Religion: Rendering Culture” (2007) 45:2 Osgoode Hall L.J. 277. In this respect, law is operating as any culture might, for it is always the case that “our understandings of other cultures’ practices are refracted and distorted through our own cultural or ideological preoccupations.” ( Webber, Jeremy, “Multiculturalism and the Limits to Toleration” in Lapierre, Andre, Smart, Patricia & Savard, Pierre, eds., Language, Culture and Values in Canada at the Dawn of the 21st Century (Ottawa, ON: Carleton University Press, 1996) 269 at 271.Google Scholar) Of course, law’s self-presentation as a-cultural masks the fact that it possesses a particular theory of religion. In the result, however, the law is culturally conditioned to being more accepting of certain forms of religion than others. See also Sullivan, supra note 3, who writes “[t]he right kind of religion, the approved religion, is always that which is protected, while the wrong kind, whether popular or unpopular, is always restricted or even prohibited” (154). In a somewhat similar vein, Brown, supra note 1, argues that “[t]he conceit of secularism undergirding the promulgation of tolerance within multicultural liberal democracies not only legitimates their intolerance of and aggression toward non-liberal states or transnational formations but also glosses the ways in which certain cultures and religions are marked in advance as ineligible for tolerance while others are so hegemonic as to not even register as cultures or religions” (7). Though a matter for another work, the consonance between Canadian constitutional law’s sense of religion and William James’ influential Protestant conception of genuine religious experience—an understanding that is emblematic of and participates in a rich tradition within Christianity—is both very interesting and more than coincidental. For a discussion of James’ thought on religion and its historical provenance, context, and influence, see Taylor, Charles, Varieties of Religion Today: William James Revisited (Cambridge, MA: Harvard University Press, 2002).Google Scholar

46. This experience of an encounter with law as an experience of cultural imperialism or as conversion/assimilation is, of course, something all-too familiar for the Indigenous peoples of Canada. For a reflection on the assimilationist policies concerning Aboriginal communities in Canada as part of the story of Canadian constitutional engagement with cultural diversity, see Sheppard, Colleen, “Constitutional Recognition of Diversity in Canada” (2006) 30:3 Vt. L. Rev. 463 at 466-67.Google Scholar

47. With respect to the political discourse of tolerance, Wendy Brown similarly argues that “tolerance signifies the limits of what foreign, erroneous, objectionable, or dangerous element can be allowed to cohabit with the host without destroying the host—whether the entity at issue is truth, structural soundness, health, community, or an organism” (supra note 1 at 27). In my analysis, religion is the foreign element and the constitutional rule of law is the host. In some respects, however, my claim is more ambitious, finding a limit on tolerance not only at those places that would “destroy the host,” but at those points at which the host (law) would have to cede public epistemological or ontological territory.

48. In this way there is the simultaneous marking of the group that is the candidate for tolerance as factually different and an assertion of the dominance of the meanings and perspectives of the culture of Canadian constitutionalism that renders marginal the perspectives or meanings of the group in question. Iris Marion Young identifies just this “paradox of experiencing oneself as invisible at the same time that one is marked out and noticed as different” as the central experience of cultural imperialism. ( Young, Iris Marion, “Five Faces of Oppression” (1988) 19:4 The Phil. Forum 270 at 286.Google Scholar)

49. Dallmayr, supra note 11 at 9-10. This dynamic that I am arguing is at the core of Canadian constitutionalism’s engagement with difference is described by Tully, supra note 12, as follows: “The words and deeds of one side are redescribed and adjudicated in the monological framework of the other, thereby providing further evidence for the correctness of their comprehensive and exclusive view from the safety of the sidelines” (164). As he elsewhere writes, supra note 12 at 7, there is an “imperial culture embodied in most liberal constitutions.” Iris Marion Young describes cultural imperialism in a way that resonates with both Tully’s claims and with the account of legal tolerance that I am providing: “This, then, is the injustice of cultural imperialism: that the oppressed group’s experience and interpretation of social life finds no expression that touches the dominant culture, while that same culture imposes on the oppressed group its experience and interpretation of social life” (supra note 48 at 286-87). Of course, law’s self-presentation as neutral and, as I have emphasized, “above culture” means that it is unable to recognize its own imperial force. As Wendy Brown writes, “The double ruse on which liberalism relies to distinguish itself from culture—on the one hand, casting liberal principles as universal; on the other, juridically privatizing culture—ideologically figures liberalism as untouched by culture and thus as incapable of cultural imperialism” (supra note 1 at 23).

50. Multani, supra note 37.

51. Ibid. at para. 79.

52. Ibid. at para. 76.

53. Amselem, supra note 30 at para. 42.

54. Wendy Brown notes that the object of tolerance is always marked “as naturally and essentially different from the tolerating subject” (supra note 1 at 15). She explores the way in which this core dynamic within tolerance has the effect of legitimating the state and its role in reproducing the dominance of certain groups, while having profound identity effects for the “tolerated.” Although his explanation of the mechanism is different, Robert Paul Wolff similarly complains of the maintenance of social dominance as one of “the covert ideological consequences” of pluralism and tolerance as ideals of social policy. ( Wolff, Robert Paul, “Beyond Tolerance” in Wolff, Robert Paul, Moore, Barrington Jr., & Marcuse, Herbert, eds., A Critique of Pure Tolerance (Boston, MA: Beacon Press, 1965) 3 at 39ff.Google Scholar)

55. B.R., supra note 36.

56. Ibid. at 437.

57. Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772 [TWU].Google Scholar

58. As cited in TWU, ibid. at para. 4.

59. Ibid. at para. 36.

60. Chamberlain, supra note 32 at para. 18.

61. Ibid. at para. 28.

62. Bruker v. Marcovitz, 2007 SCC 54 at para. 1 [Bruker].Google ScholarPubMed

63. Minow, supra note 5 at 421, similarly argues that a commitment to multiculturalism demands recognition of “the conflict between ostensible tolerance, advanced by members of a secular, liberal community, and perceptions of intolerance by members of religious, conservative subcommunities. Secular humanism, from the vantage point of certain religious subcommunities, is not a solvent of tolerance for all points of view but a conflicting belief system that threatens the integrity and viability of their own culture.” Accordingly, she argues that the idea of tolerance must be re-thought in such a way as to “include the vantage point of members of traditional subgroups that do not share the dominant liberal commitments to individual choice, experimentation, and value relativism” (440).

64. Williams, supra note 40 at 67. Halberstam puts it somewhat differently, but in a way that echoes with my analysis that follows: “Tolerance is paradigmatically exemplified when one allows a meaningful challenge to a deeply-felt conviction” (supra note 40 at 192). Given his view that tolerance is a paradoxical concept such that it is untenable precisely when it becomes conceptually possible—when one feels a challenge to strongly-held convictions—Halberstam’s ultimate argument is “a plea for recognizing the implications of having convictions and a suggestion of a moral argument for curtailing the scope of these convictions” (ibid. at 190).

65. There is an irony in this point. The rhetoric of multiculturalism is usually levied against a vision of religious and cultural difference as a purely private matter. I am suggesting that, while in certain ways resisting the easy relegation of difference to the private sphere, the invocation of legal tolerance has the simultaneous effect of, in other ways, shoring up that border between the public and private.

66. Brown, supra note 1 at 32. See also Asad, Talal, Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: Stanford University Press, 2003).Google Scholar Writing of the force of the state conception of the private and public within modern secularism, Asad observes that “[f]rom the point of view of secularism, religion has the option either of confining itself to private belief and worship or of engaging in public talk that makes no demands on life. In either case such religion is seen by secularism to take the form that it properly should have. Each is equally the condition of its legitimacy” (199).

67. See text accompanying notes 55 and 56 above.

68. The debate about the hijab in France is a sharp example of this symbolic economy.

69. TWU, supra note 57.

70. Being either myopically critical or overly aspirational can lead us to take for granted more modest but nevertheless very real political goods. In this vein, Williams, Bernard, “Realism and Moralism in Political Theory” in Hawthorn, Geoffrey, ed., In the Beginning was the Deed: Realism and Moralism in Political Argument (Princeton, NJ: Princeton University Press, 2005) 1, fn. 2 at 2Google Scholar, Williams chastises Rawls for his repeated use of the phrase “mere modus vivendi”: “The very phrase ‘a mere modus vivendi’ suggests a certain distance from the political; experience (including at the present time) suggests that those who enjoy such a thing are already lucky.”

71. Amselem, supra note 30 at para. 42.

72. A similar claim about the virtues of refined indifference can be made by reference to Multani, supra note 37.

73. Locke’s A Letter Concerning Toleration is still often invoked as the basis for modern political practices of religious toleration. It is interesting to recall that Locke himself was counseling only a relatively modest form of toleration that fundamentally inhered in leaving alone that which ought not to concern civil society. The kind of accommodation imagined in the prevailing story of legal multiculturalism is entirely foreign to his concept of toleration. Of the three limits to tolerance that he outlined, the first was the border of public law and the general interests of society. He stated that no magistrate should tolerate conduct that contravenes laws of general application enacted for a valid public purpose, stating that “no opinions contrary to human society, or to those moral rules which are necessary to the preservation of civil society, are to be tolerated by the magistrate.” ( Locke, John, A Letter Concerning Toleration (Buffalo, NY: Prometheus Books, 1990) at 61.Google Scholar) What were the other two limits? First, a magistrate need not tolerate religion that counsels loyalty to a foreign political power and, second and most emphatically, “those are not at all to be tolerated who deny the being of God” (ibid. at 64).

74. Alexander Bickel assessed the import of a court’s declaration that legislation is “not unconstitutional” in a way that resonates interestingly with the point that I am making here. Building his argument for the more robust judicial exercise of the “passive virtues”, Bickel observed that although finding a statute “not unconstitutional” is not a compliment, “neither is it an inconsequential appreciation. To declare that a statue is not intolerable in the sense that it is not inconsistent with the principles whose integrity the Court is charged with maintaining—that is something, and it amounts to a significant intervention in the political process.” ( Bickel, Alexander M., The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2nd ed. (New Haven, CT: Yale University Press, 1986) at 129.Google Scholar) The point that I am making here is that, though more modest than the robust ethic of tolerance that is invoked in the story of legal multiculturalism, a tolerance of indifference, in Bickel’s terms, is something.

75. I explain these claims more fully in Berger, Benjamin L., “Understanding Law and Religion as Culture: Making Room for Meaning in the Public Sphere” (2006) 15:1 Const. Forum 15 at 16-19.Google Scholar

76. See Reaume, Denise G., “Legal Multiculturalism From the Bottom Up” in Beiner, Ronald & Norman, Wayne, eds., Canadian Political Philosophy: Contemporary Reflections (Oxford: Oxford University Press, 2001) 194 at 196.Google Scholar (“A culture, whether all-encompassing or localized, is a normative order and as such has features that parallel those of the legal system.”) See also Sullivan, supra note 3, in which she notes that law “is replete with ideas and structures that find their origin in, and are parallel to, ideas and structures in religious traditions” (153).

77. As I have argued above (supra note 45 and accompanying text), depending upon the shape of their symbolic, normative, and practical commitments, religious cultures will be more or less comprehensively challenging to the law. As Reaume, supra note 76, puts it, “[o]ne minority community may adhere to a way of life that is comprehensively incompatible with the lifestyle of others; another may differ in relatively contained spheres” (195).

78. Kahn, Paul W., The Cultural Study of Law: Reconstructing Legal Scholarship (Chicago, IL: University of Chicago Press, 1999) at 84–85.Google Scholar

79. Mannheim, Karl, Ideology and Utopia (New York: Harcourt, Brace, and Co., 1936) at 40.Google Scholar Wolff, supra note 54, elaborates, explaining that ideology, in this sense, involves “the refusal to recognize unpleasant facts which might require a less flattering evaluation of a policy or institution” (43). For both Mannheim and Wolff, the effect of such ideology is always to privilege the already dominant in society.

80. Reaume, supra note 76, stands out as a strong counter-example. In her compelling plea for a “bottom-up” approach to legal multiculturalism, Reaume states that “[t]he challenge of multiculturalism is that of negotiating the relationship between two or more normative systems within a political unit” and emphasizes that “[t]he legal system is also a normative system—a complex set of rules guiding behaviour and facilitating human activity” (194). In speaking only of “normative systems” and “rules”, however, I would argue that the full contours of this challenge are not duly emphasized. The systems in issue are cultural systems, a more capacious and active category.

81. Kymlicka, Will, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon Press, 1995).Google Scholar

82. In a 1990 article, Martha Minow suggests an approach very similar to Kymlicka’s inside/outside model. She offers the concept of “oppression” as the figurative canary in the mineshaft, arguing that, although measures taken to protect the subgroup from the dominant culture are acceptable forms of tolerance, “[w]hen a religious subgroup implements practices that systematically subordinate some of its members, such as women and children, deference to the self-government and autonomy of the groups, from the vantage point of a liberal society, is not well-placed” (supra note 5 at 433). She argues that a theory and approach centred on oppression could serve as a “winning solution” (436) to the seemingly intractable difference between the perspectives of the dominant social groups and sub-groups because the demands for tolerance made by the subgroup and the demand for conformity to certain liberal norms made by dominant society are joined in their concern with anti-oppression.

83. Supra note 81 at 75.

84. Supra note 81 at 94. In an extension of aspects of Kymlicka’s model to the issue of immigration control, Joseph Heath argues that liberal contractarian theory can justify a demand for integration into social institutions and that, despite the fact that “[t]he long-run effect of this will be a narrowing of the differences in the value systems between members of a liberal society”, this is “simply because every values system is subject to the common set of constraints imposed by the basic institutional structure.” ( Heath, Joseph, “Immigration, Multiculturalism, and the Social Contract” (1997) 10 Can. J.L. & Jur. 343 at 359.Google Scholar) In the context of an argument distinguishing justified demands for integration from illegitimate demands for assimilation, however, Heath further argues that “it would be highly misleading to regard this as a form of assimilation. The correct term would be liberalization, which we can use to denote an endogenous transformation that renders cultural value systems institutionally compatible with a plurality of other cultural forms” (ibid). Like Kymlicka, Heath’s argument is compelling from within the horizon of liberal thought, which is—it must be emphasized—the horizon that both overtly seek to occupy. But whether ultimately liberally defensible or not, as experienced by a religious culture, “liberalization” as the “endogenous transformation that renders value systems institutionally compatible with a plurality of other cultural forms” may have a decidedly euphemistic ring to it.

85. Brown, supra note 1 at 202. Brown critiques Kymlicka’s approach for “deploying Kantian liberalism in a distinctly non-Kantian way: that is, treating tolerance as a means for transforming others rather than as an end in itself, and treating individual autonomy as a bargaining chip rather than as an intrinsic value. The demand for cultural transformation, of course, also compromises the gesture of tolerance at the moment it is extended” (ibid.).

86. Supra note 81 at 18.

87. Denise Reaume criticizes Kymlicka’s approach on very much this basis. From a cultural perspective, “Kymlicka’s approach—presumptively validating rules directed at outsiders for the protection of the group while exhibiting suspicion about rules imposing restrictions on insiders—is puzzling. At its core, a culture is a set of rules and practices, some mandatory, directed at insiders—it does, after all, constitute their way of life” (supra note 76 at 197).

88. Shachar, Ayelet, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge: Cambridge University Press, 2001) at 18.CrossRefGoogle Scholar Shachar also notes the curious fact that Kymlicka “pays relatively little attention to religiously defined minority communities” (26), a point of limitation in Kymlicka’s theory and on which Shachar is much stronger. For her detailed critique of Kymlicka, see 29-32. Equally critical of Kymlicka on this point, Modood’s “institutional inte-gration approach” to multiculturalism that centres on “a moderate and evolutionary secularism based on institutional adjustments” is quite close to Shachar’s theory in certain other key ways. In particular, Modood similarly adopts an essentially functional/institutional conception of law and assumes the values of public law as the framing limits of his approach. See Modood, Tariq, Multiculturalism: A Civic Idea (Cambridge: Polity Press, 2007) at 79.Google Scholar

89. Shachar, supra note 88 at 18.

90. Ibid. at 126.

91. Ibid.

92. Ibid. at 124. In this respect, Shachar’s approach is a kind of anti-pole to Tully’s, who seeks to reorient legal practices towards recognition and understanding of the other group’s nomos. Tully’s approach is discussed more fully below.

93. See Berger, supra note 75. One is reminded of Robert Cover’s observation that “[w]e construct meaning in our normative world by using the irony of jurisdiction, the comedy of manners that is malum prohibitum, the surreal epistemology of due process.” ( Cover, Robert M., “The Supreme Court 1982 Term—Foreword: Nomos and Narrative” (1983) 97 Harv. L. Rev. 4 at 8.CrossRefGoogle Scholar) See also Ford, Richard T., “Law’s Territory (A History of Jurisdiction)” in Blomley, Nicholas, Delaney, David & Ford, Richard T., eds., The Legal Geographies Reader: Law, Power, and Space (Oxford: Blackwell, 2001) 200 at 201Google Scholar (“jurisdiction is … a way of speaking and understanding the social world”); Raustiala, Kai, “The Geography of Justice” (2005) 73 Fordham L. Rev. 2501.Google Scholar

94. Ayelet Shachar states, for example, that “[a] truly comprehensive solution to the multiculturalism paradox must therefore identify and defend only those state accommodations which can be coherently combined with the improvement of the position of traditionally subordinated classes of individuals within minority group cultures” (supra note 88 at 118).

95. Supra note 11 at 55-56.

96. Ibid. at 47.

97. Ibid. at 48-49.

98. Ibid. at 33.

99. Ibid. at xviii. See, e.g., Connolly, William E., Pluralism (Durham, NC: Duke University Press, 2005) at 125 Google Scholar (“In a relation of agonistic respect, something in the faith, identity, or philosophy of the engaged parties is placed at risk”).

100. Supra note 11 at 48-49.

101. Kahn, Paul W., The Reign of Law: Marbury v. Madison and the Construction of America (New Haven, CT: Yale University Press, 1997) at 167.Google Scholar

102. This is where Forst’s argument for a “respect conception” of toleration founders when applied to the interaction of religious culture and the culture of Canadian constitutionalism (Forst, supra note 41). Forst’s reflections are provocative and helpful for many contexts in which toleration is salient (he calls for attention to the context of toleration himself at 314) but, in his analysis, law is always a background consideration or mechanism, never a tolerating agent itself. As a result, some of his predicate demands for toleration based on respect seem structurally inconsistent with the constitutional rule of law as I have described it. Most tellingly, toleration as recognition demands “that one does not project one’s own reasons (values, interests, needs) onto others in arguing for one’s claims” and that one must defend a norm based on reasons “that are not grounded in ‘higher’ truths or in conceptions of the good which can reasonably be rejected by others with a different ethical or cultural identity” (317). Both are, of course, the very stuff of adjudication within the culture of law’s rule. Forst seems to best describe law’s mode of tolerance when he explains the “permission conception” of toleration, whereby “[t]oleration means that the authority (or majority) gives qualified permission to the members of the minority to live according to their beliefs on the condition that the minority accepts the dominant position of the authority (or majority). As long as their expression of their differences remains within limits, that is, is a ‘private’ matter, and as long as they do not claim equal public and political status, they can be tolerated on both pragmatic and principled grounds” (315) [emphasis added]. Consistent with my argument, Forst concludes, however, that the permission conception fails as a non-coercive model of toleration.

103. Supra note 12 at 24. See also Taylor, Charles, “Understanding and Ethnocentricity” in Philosophy and the Human Sciences: Philosophical Papers 2 (Cambridge: Cambridge University Press, 1985) 116.CrossRefGoogle Scholar Tully is not alone in seeking a new form of constitutionalism that centres on dialogic forms for engagement. See Sheppard, supra note 46, who writes “For a growing number of scholars … dialogue across group-based differences is the essence of constitutionalism” (487).

104. In this way, James Tully argues that “a just dialogue is precluded by the conventions of modern constitutionalism” (supra note 12 at 56.) Whereas I have discussed the impact of this modern constitutional dynamic as one of “assimilation”, Tully describes it as the imposition of uniformity. Tully expresses this point with characteristic clarity and force when he concludes that “the language of modern constitutionalism which has come to be authoritative was designed to exclude or assimilate cultural diversity and justify uniformity” (58). My argument in this piece could be thought of as a close exploration of the way in which the modern culture of Canadian constitutionalism effects this assimilation and imposes this uniformity in its encounter with religious difference.

105. As Van Praagh writes, “[d]espite a tendency for students and practitioners of law to presume its paramount importance, the law is but one set of influences that direct our behaviour and relationships.” ( Praagh, Shauna Van, “Identity’s Importance: Reflections of—and on—Diversity” (2001) 80 Can. Bar Rev. 605 at 608.Google Scholar) In her penetrating discussion of the role of the Court in issues of diversity and pluralism, she goes on to recognize its special role, noting that although it is “never solely determinative of our relations and interactions … its presence is significant in our collective existence and our shared experience of living our pluralist lives. When it offers a judgment, it not only adjudicates the particular dispute before it, but traces the contours of our liberal, diverse society” (617).

106. Indeed, there is a strand of scholarships that sees law’s meaning-shaping capacity as so powerful as to destroy or threaten to destroy other forms of the social. See, e.g., Diamond, Stanley, “The Rule of Law Versus the Order of Custom” (1971) 38 Soc. Res. 42 at 44Google Scholar who writes “No contemporary institution functions with the kind of autonomy that permits us to postulate a significant dialectic between law and custom. We live in a law-ridden society; law has cannibalized the institutions which it presumably reinforces or with which it interacts”. See also Habermas, Jurgen, The Theory of Communicative Action, trans. by McCarthy, Thomas, vol. 2 (Boston, MA: Beacon Press, 1984) at 356–73 Google Scholar, in which he describes “juridification” as a “colonization of the lifeworld” brought about by a modern trend towards both the increasing density of law and the expansion of law to regulate “new, hitherto informally regulated social matters” (357).

107. Supra note 62.

108. Ibid. at para. 1, per Abella J.

109. See Tully, supra note 12. Tully’s reconstructed/reimagined form of constitutionalism is one built upon the three conventions of mutual recognition, consent, and continuity. Tully argues that, in order to adequately recognize cultural diversity, rather than the prevailing approach to constitutionalism, a “constitution should be seen as a form of activity, an intercultural dialogue in which the culturally diverse sovereign citizens of contemporary societies negotiate agreements on their forms of association over time in accordance with the three conventions of mutual recognition, consent and cultural continuity” (30).