Published in Duncan Ivison (ed), The Ashgate Research Companion to Multiculturalism (London: Ashgate Publishing, 2010), pp. 75-94. Diversity and the Limits of Liberal Toleration Thomas M. Besch Department of Philosophy The University of Sydney Sydney, NSW 2006, Australia thomas.besch@sydney.edu.au Abstract: To fully respond to the demands of multiculturalism, a view of toleration would need to duly respect diversity both at the level of the application of principles of toleration and at the level of the justificatory foundations that a view of toleration may appeal to. The paper examines Rainer Forst's post-Rawlsian,  reason-based' attempt to provide a view of toleration that succeeds at these two levels and so allows us to tolerate tolerantly. His account turns on the view that a constructivist requirement of generality and reciprocity provides a suitable criterion of toleration since a commitment to this requirement is part of what defines people as reasonable. But it is neither plausible nor coherent to build such a requirement into an idea of reasonableness from which an account of toleration starts. Thus, constructivism cannot provide a tolerant criterion of toleration, if such criterion, in order to overcome the  paradox' of intolerant toleration, must escape reasonable disagreement. 2 Diversity and the Limits of Liberal Toleration 1. From the perspective of an account of toleration, the multicultural quest for the proper recognition of identities and cultural orientations can be seen to raise a important and familiar challenge: namely, the challenge to duly respect, and limit, diversity not just at the level of the application of principles of toleration, but also at the level of the justificatory foundations that a conception of toleration may appeal to. Toleration, of course, is difficult to come to terms with in its own right. Not only is it difficult to determine what toleration is, why we ought to tolerate, and what we ought to tolerate. It is also difficult to determine where we may draw the line between the tolerable and the intolerable. However, these difficulties are aggravated if we seek to tolerate on grounds that are equally justifiable to all affected others – including not only people who share our most important moral, ethical, or cultural commitments and concerns, but also people whose identities, practices, and cultures deeply differ from ours, and that might hence seem, say, mistaken, flawed, or even intolerable to us. Arguably, this desideratum is not easily met. For instance, some liberals appeal to an idea of individual autonomy in order to ground and delineate tolerability – thus, they argue that toleration is needed to protect individual autonomy, or at least a meaningful diversity of practices and ethical orientations that nourish individual autonomy, and that practices and orientations are tolerable only if they do not harm that autonomy (e.g., Kymlicka 1996, pp. 152-172; Raz 1986, pp. 400-429). Yet, as has often been noted, the view that individual autonomy should be accorded such an important role might not be equally justifiable to all relevant others. After all, some people and groups could not coherently place suitably high priority on individual autonomy without first fundamentally changing their ethical outlooks. Thus, from their perspective, an autonomy-promoting practice of toleration would not duly respect their nonindividualistic commitments, and would hence fail to be truly tolerant. Can there be a conception of liberal toleration that takes the cultural and doctrinal diversity characteristic of multicultural societies seriously both at the level of the application of its principles and at the level of its foundation? Some philosophers take constructivist approaches in practical philosophy to be particularly suited to accommodate a deep and pervasive diversity of practices, lifestyles, doctrines, and identities. In one way or other, practical constructivists construe accessibility and acceptability, or some form of accessibility and acceptability, as something that can constitute the very correctness, validity, or epistemic-practical authority, of a conception of justice and its reasons. And some constructivists argue that a conception of justice can achieve suitably wide accessibility and acceptability only if it fundamentally and systematically respects reasonable disagreement – and, in their view, to respect reasonable disagreement is to tolerate. John Rawls and other political liberals have accordingly advanced what he calls a  political' brand of constructivism as the best way to respect such 3 disagreement, and to suitably respond to a  fact of reasonable pluralism', and this not only at the level of the application of a conception of (political) justice, but also at the level of the justificatory foundations and resources such a conception draws on (e.g., Rawls 1993; Larmore 1990, 1994; Macedo 1991). What I want to examine here is an exemplary constructivist, broadly Rawlsian conception of toleration, namely, Rainer Forst's view. In his much of his recent work, and in particular in his impressive Forst (2003a) – a book which might be the most comprehensive and advanced philosophical study on the topic in the recent German discussion – Forst has advanced an ambitious account of the history and the structure of toleration that culminates in an attempt to overcome several  paradoxes' of toleration, as Forst and others have referred to them, and, most crucially, what he calls the  paradox of drawing the limits' (the German phrase is Paradoxie der Grenzziehung) (Forst 2003a, pp. 38ff; 2003b, pp. 70ff; 2004). Forst describes this paradox as follows. All toleration necessarily implies intolerance toward those who are seen as intolerable and, quite often, as intolerant as defined by those limits [i.e., the limits between the accepted and the tolerated, and these two things and the intolerable]. The concept of tolerance makes no sense without certain limits, though as soon as these are substantively defined, tolerance seems to turn into nothing but intolerance. There is thus no  true' tolerance. To resolve this paradox a conception of toleration must show how far its limits can be drawn in a mutually justifiable and non-arbitrary way (Forst 2003b, p. 72). Thus, the problem of the paradox of drawing the limits is the problem that even our best attempts to delineate tolerability might fail to be duly tolerant, so that there might not be any real,  true', or not self-undermining conception (and practice) of toleration (see Forst 2003a, p. 38; 2003b, p. 72). For Forst, this problem is crucial: the concept of toleration must be abandoned as incoherent unless this paradox can be resolved (Forts 2003a, p. 40; 2004). Forst suggests a  reason-based' conception of toleration that aspires to overcome the paradox of drawing the limits. And, it would seem, if he succeeds, there might be a way to tolerate in ways that deeply accommodate diversity. In essence, he advances two claims. He argues (i) that this paradox can be resolved only if the criterion of toleration – i.e., the criterion by which we distinguish between the tolerable and the intolerable – is not the subject of reasonable disagreement: only then, he insists, can our conception (and practice) of toleration be tolerant itself. Moreover, he claims (ii) that the idea of reasonableness entails a criterion of toleration that indeed meets this threshold, namely, a constructivist requirement of public justifiability: as this requirement cannot reasonably be rejected, it can be used as a criterion of toleration that overcomes that paradox. Like Rawls, Forst sees toleration as a matter of respecting reasonable disagreement, and takes such respect to be part of reasonableness; and, like Rawls, he takes a constructivist requirement of public justifiability to not be the subject of reasonable 4 disagreement. Unlike Rawls, however, he anchors his views in a notion of reasonableness that does not depend for its authority and appeal on a commitment to the values of a liberal public-political culture, but that aspires to have wider and more fundamental authority and appeal. If it is successful, then, Forst's account points the way toward a conception of toleration suitable for the culturally diverse conditions of contemporary liberal societies. Even if we are sympathetic with these ideas and aspirations, however, we have reasons to be less optimistic than Forst is about the prospects of this type of approach: his constructivist,  reason-based' attempt to resolve the paradox of drawing the limits, I shall argue, is bound to fail. On the one hand, the broadly Rawlsian criterion of toleration that Forst advocates and the idea of reasonableness that is intertwined with it is the subject of reasonable disagreement. Thus, by Forst's own lights, it fails to be tolerant itself. At the same time, there is reason to believe that it is self-defeating to advance a constructivist requirement of public justifiability as a criterion of toleration, while characterizing reasonableness in terms of this requirement. In conjunction, all this suggests that constructivist, broadly Rawlsian conceptions of toleration of the overall type advertized by Forst are fundamentally incoherent. It is necessary to start from somewhere, but as Forst's account of the history of toleration is by far too rich and complex to be addressed here with any accuracy (see Forst 2003a, pp. 53-587), I shall leave it aside and focus directly on his structural and normative views on the topic. To get things started, I shall survey aspects of his view of the structure and of forms of toleration (section 2). After that, I will sketch his view of the limits of toleration and place them in their systematic context (sections 3 and 4). Once this reconstructive work is in place, I shall move on to criticism, and thus will address a range of problems at the heart of Forst's constructivist thinking about the criteria, role, and foundation of toleration (sections 5, 6 and 7). 2. All forms of toleration involve an  objection component' and an  acceptance component' (Forst 2003b, pp. 71-76). The object of toleration (e.g., some belief, doctrine, or practice) must in some respect be thought of as wrong, misguided, bad, deficient, or some such thing; without this objection component, there would not be toleration, but indifference or acceptance. However, toleration requires, too, that the object of toleration is at the same time approved of or accepted in some respect. This acceptance component, Forst insists, may not ―cancel out the negative judgment [i.e., the objection component] but gives certain positive reasons which trump the negative ones in the relevant context. The said practices and beliefs, then, are considered to be wrong, but not intolerably wrong‖ (Forst 2003b, p. 72).1 Not 1 As it is worth noting, in many discussions of the topic, the objection component of toleration is taken to be the dominating and thus characteristic component, and where it is taken to 5 least, toleration involves limits that mark ―the point where reasons for rejection become stronger than the acceptance reasons‖ (ibid.). More precisely, it involves two types of limits: one separating the things that are accepted from things that are rejected, but still tolerated, and one separating these two things from the things that are strictly rejected as intolerable. Only the latter limit is the limit of toleration ―properly speaking‖ (ibid.), and this is the limit that gives rise to the paradox of drawing the limits. Next, Forst distinguishes between various conceptions of toleration; three of which should be mentioned now. First, there is a  permission conception' of toleration. According to this conception (and practice) of toleration, the tolerator assumes a position of superiority, and grants toleration as a means to an end, e.g., the end of avoiding conflict, or of maximizing stability, or power. On a permission conception, toleration marks an instrumental and non-symmetrical relationship (Forst 2003b, pp. 74; 2003, pp. 42-48). Next, there is a  co-existence' conception of toleration. According to this conception, toleration is an instrumental and symmetrical relationship; it is still instrumental in nature, but now each of the tolerating parties equally gives and receives the benefit of toleration. Toleration thus becomes a mutually endorsed, reciprocal (but potentially instable) modus vivendi (ibid.). Many contemporary discussions construe of toleration along the lines of one of these two conceptions. A third conception, however, is crucial for Rawls and those who follow him, and it marks the form of toleration that is the focus of Forst's attempt to overcome the paradox of drawing the limits. According to the  respect conception' of toleration, then, toleration is a non-instrumental and symmetrical relationship in which the tolerating parties respect each other as equals, while toleration is, or is seen as, something is demanded by, and expresses, this respect. In Forst's terms, ―[e]ven though [people] hold incompatible ethical beliefs about the good and right way of life, and differ greatly in their cultural practices, they respect each other as moral-political equals in the sense that their common framework of social life should – as far as fundamental questions of the recognition of rights and liberties and the distribution of resources are concerned – be guided by norms that all parties can equally accept and that do not favor one specific  ethical community'‖ (Forst 2003b, p. 74). Forst focuses on a respect conception of toleration partly because he takes this form of toleration to be normatively superior to the other types just referred to. dominate, toleration is easily seen as something that fails to properly recognize or appreciate other people (to give just one example, see Brown 2001). Such views, it seems, in effect see cases where agents essentially suffer other agents without interfering with them as paradigm cases of toleration. It is important to note, however, that this at most marks one particular (even if often-encountered) way to tolerate, or one conception of toleration, rather than the nature of toleration. As we shall see shortly, there are others ways to tolerate – ways, that is, that amount to ways to respect the equal standing of other people, and that thereby in effect give essential, dominating importance to the acceptance component of toleration. From the outset taking the objection component to dominate thus conceals the substantive normative question of how we ought to tolerate, or how we ought to appreciate what we also have reasons to object to. 6 In his view, only respect-toleration duly reflects the freedom and equality of reasonable people, their reasonable disagreements, and, crucially, their discursive moral standing as beings that have a  right to justification', or, as Forst sometimes also puts it, that are worthy of being given adequate, justifying reasons in matters that affect them. However, Forst's view of the superiority of respect-toleration is not our focus here, and it relies on ideas that are at the core of his view of the criterion of toleration – and the latter is our main concern. Let me therefore sidestep his view of the superiority of respect-toleration, and turn instead to some of the ideas just referred to. Finally, not much depends here on the distinction between toleration as a virtue of persons, or tolerance, and toleration as a property of social arrangements.2 Like Rawls, Forst takes toleration in the first sense to be part of reasonableness, and takes reasonableness to be the standpoint from which political principles must be acceptable to count as justified, or legitimate, or just.3 On this view, authoritative political principles, and the social arrangements they prescribe, are consistent with toleration in the first sense, and so will be tolerant in the second sense. Toleration as a virtue of persons thus becomes (part of) what grounds toleration as a property of social arrangements. As I read Forst, his attempt to resolve the paradox of drawing the limits in the first instance focuses on toleration in the first sense, or tolerance proper, but it finds its point and upshot in a view of toleration as a property of social arrangements. 3. Forst's view of toleration is embedded in a constructivist narrative about the sort of justifiability that political principles (allegedly) need – a narrative that draws not only on Rawls's political constructivism, but also on the Kantian constructivist views of Habermas and O'Neill (see Forst 2003b, p. 80; 1994, pp. 280-306; 2002, pp. 182-200). The following are key ideas of this narrative that are particularly relevant for our purposes: (1) People are worthy of being given adequate, justifying reasons in matters that affect them: they have a right to justification (Forst 2003b, pp. 76f, 81; 1999). (2) Political principles raise validity claims to the effect that their correctness requires them to be justifiable to all others to whom they apply. ―The realm of justification,‖ Forst insists, ―must be identical with the realm of the validity of a norm‖ (Forst 2003b, p. 76). (3) Given the right to justification and the validity claims that political principles raise, such principles need to be, or be based on what is, equally accessible and acceptable by all relevant others – or, as Forst 2 On this distinction, see, e.g., Murphy (1997). 3 See Rawls (1993); on reasonableness in Rawls, see Besch (1998). 7 often puts it, they need to be reciprocally and generally acceptable. In other words, they need to meet a requirement of public justifiability (ibid.). (4) Given Rawls-type burdens of judgment, there exists reasonable disagreement about a wide range of comprehensive, philosophical, ethical, religious, metaphysical and other matters. Following Rawls, Forst takes the most important of the burdens of judgment to be ―that the way individuals assess and weigh moral and political values is shaped by their total experience and whole course of life, which will always differ between persons, especially in modern, diverse societies‖ (Forst 2003b, pp. 80ff; see also Rawls 1993, pp. 50ff). For Forst, as for Rawls, these and similar factors do not distinguish between reasonable and unreasonable disagreements, but explain, or are part of what explains, how reasonable disagreement between reasonable persons can arise and persist without impugning their reasonableness. Correspondingly, Forst endorses a Rawls-type maxim of the avoidance of reasonable disagreement: (5) Given the requirement of public justifiability, political principles may not be based on grounds that are the subject of reasonable disagreement (Forst 2003b, p. 76). For what comes later, three things should be highlighted now. First, the idea of public justification at the center of this broadly Rawlsian picture is constructivist in a sense that surfaced earlier on already, namely, it construes of the equal accessibility and acceptability – or the reciprocal and general acceptability – of political principles and their reasons as something that constitutes their correctness, validity, or their epistemic-practical authority. This, of course, marks a philosophically controversial doctrine. Anti-constructivists, such as Platonists, moral realists, or perfectionists,4 reject the idea that equal accessibility and acceptability can in its own right justify, or constitute correctness – even though anti-constructivists might, and sometimes do, agree that equal accessibility and acceptability is a valuable by-product or desideratum of good reasons and justifications, and could even be an important constraint on the legitimacy of (independently justifiable) political principles.5 Second, like Rawls, who sought to apply ―the principle of toleration to philosophy itself‖ (Rawls 1993, p. 10), and so applied it at many different levels of thought, Forst does not restrict the attempt to avoid reasonable disagreement to substantive, first-order normative, evaluative, or other considerations or reasons. For Forst, as for Rawls, we should avoid 4 For more on the difference between constructivism and these brands of anticonstructivism, see O'Neill (1996), pp. 54ff; O'Neill (1989b); O'Neill (2003). 5 At the same time, Platonists might require reasons to be the (possible) subject of what Nagel calls ―ideal unanimity‖ – i.e., an agreement that would occur if the relevant others grasped the epistemic merits of those reasons (where these merits are not seen as a function of the acceptability of these reasons) (Nagel 1991, pp. 33f). 8 reasonable disagreement across a wide range of resources that a public justification of political principles may need to invoke. Not least, third, for what comes later we should note now that it is not quite clear what systematic relationship obtains between some of the views at the center of Forst's constructivist narrative. In particular, it is not clear what relationship obtains between (1) and (2) on the one hand, and (3) on the other. Forst often emphasizes that the right to justification is  basic' or  fundamental', and more fundamental than other rights; and he suggests both that it is  constructed' and that the attribution of this right to others implies a commitment to the requirement of public justifiability (or the criteria of reciprocity and generality). In conjunction with his other views, this means that his narrative in effect oscillates between at least three distinct views about the relationship between the right to justification and the constructivist requirement of public justifiability: (i) the right to justification is basic in the sense of being a key part of the justification of other rights; but it is still a constructed right in that it depends for its content or authority on its public justifiability; (ii) if and where we recognize that others have a right to justification, we commit ourselves to the view that political principles must be publicly justifiable to them (in other words, the right to justification grounds the requirement of public justifiability); (iii) the commitment to justifying things to others is motivated by, or is based on, recognition of their right to justification, or of the normative standing to which this right refers, while other, independent considerations suggest that public justification is the form of justification most suitable for the task. Later on, we will have reasons to consider the justificatory dependencies that obtain between the right to justification, or the standing to which this right refers, and the commitment to public justifiability, understood in constructivist terms. For now, it suffices to note that (i) and (ii), but not (iii), take the right to justification to entail or suppose or depend on a constructivist requirement of public justification. That is, according to (i), the right to justification supposes for its authority constructivism, while (ii) takes the ascription of this right to others to commit us to a particular, constructivist way to respond to it, namely, the way of public justification. Consequently, if constructivism is reasonably controversial, then so would have to be the idea that people have a right to justification. By contrast, (iii) does not bundle constructivism into the view that the people have a right to justification, or the normative standing to which this right refers. All that (iii) entails is that if we accord this right to others, we commitment us to justifying certain things to them, but (iii) leaves open what requirements or criteria those justifications are to meet – thus, (iii) does not entail, but is consistent with, a constructivist view of public justification. In short, then, by the light of (iii), but not by the light of (i) and (ii), we can accept that there is a right to justification, or that 9 people have, or should be taken to have, the discursive moral standing of being worthy of being given adequate, justifying reasons, whether or not we are committed to constructivism. I shall come back to this in section 6. 4. Against this background, Forst suggests the following as the criterion of toleration: Citizens are tolerant if they accept the boundary set by the criteria of reciprocity and generality as both delineating the justifiability of mutually binding norms and the limits of toleration. Tolerant citizens are  reasonable' in accepting that (...) they have a moral duty to tolerate all those ethical beliefs and practices that they disagree with but that do not violate the threshold of reciprocity and generality (trying to force their views on others). Such a violation of the basic right to justification is a form of intolerance that cannot be tolerated (Forst 2003b, p. 78). Persons are tolerant to the extent that, even though they disagree with others about the nature of the good and true life, they tolerate all other views within the bounds of reciprocity and generality. That is why toleration is a virtue of justice and a demand of reason (ibid.). On this view, the requirement of public justifiability – referred to in these passages in terms of the criteria of reciprocity and generality – is the criterion of toleration. Practices and beliefs are tolerable only if they are consistent with that requirement (and therefore with treating others in accordance with their right to justification). It is not entirely clear what, for Forst, it actually takes to interact with others within ―the bounds of reciprocity and generality,‖ and what range of practices and beliefs can justifiably be claimed to be ruled out as intolerable by that standard. But at its core it involves a commitment to the idea that political principles, or, more generally, ideas of the good and the right, may not be treated or enforced as binding for other people unless these principles are publicly justifiable to, and hence equally accessible and acceptable by, these others – that is, despite, and in avoidance of, their reasonable disagreements.6 Yet why should we draw the limits of toleration in these terms? Forst's 6 For attempts to apply his criterion to actual political conflicts, see Forst (2003a), pp. 675748 and Forst (2004), pp. 320ff. As far as I can see, it remains unclear how the application of this criterion can steer clear of the invocation of content that can be rejected reasonably and that, in being the subject of reasonable disagreement, ought to be the object of toleration by the light of this criterion. As the (purported) standing of the criterion does not necessarily infuse the content required to meaningfully apply it with similar standing, the application of the criterion can fail to pass the test posed by it. Waldron and McKinnon have in effect argued that the attempt to avoid reasonable disagreement is insufficient to determine where the line between the tolerable and the intolerable is to be drawn, and Forst, it seems, is faced with problems of the sort they discuss. See Waldron (2003), pp. 21ff. and McKinnon (2006), pp. 76ff. While these applicative problems have the potential to be damaging, the concerns I shall address later target more fundamental problems – problems, that is, that remain even if a Forst-type, Rawlsian conception of toleration has considerable applicative yield. 10  reason-based' case for his criterion of toleration amounts to this. A criterion of toleration (and the practice of toleration that is prescribed by it) can be duly tolerant itself only if it meets the threshold of reciprocity and generality – that is, only if it is equally accessible and acceptable by, or publicly justifiable to, the relevant others. However, a criterion of toleration cannot achieve this form of acceptability if it is the subject of reasonable disagreement. Thus, it must not be based on any reasonably controversial conception of the good and the right (widely conceived so as to include religious, metaphysical,  ethical', and other doctrines) – and if a conception draws the boundary between the tolerable and the intolerable on the basis of reasonably controversial content, the resulting criterion and practice of toleration will be intolerant by unduly, unfairly, arbitrarily, or dogmatically, privileging one conception of the good and the right over others. Now, for Forst, a commitment to the criteria of reciprocity and generality – that is, to the requirement of equal accessibility and acceptability, or of public justifiability – is part of what it means to be reasonable in the first place. Consequently, the criteria of reciprocity and generality cannot reasonably be rejected. But if they are not the possible subject of reasonable disagreement, then these criteria, if anything, can provide a criterion of toleration that is itself tolerant (see Forst 2003a, pp. 649ff; 2003b, p. 80). If we sum this up, this yields: (6) A criterion of toleration, to be tolerant itself, must be equally accessible and acceptable by, or be publicly justifiable to, the relevant others. (7) A criterion of toleration can meet the condition expressed in (A) only if it is not the subject of reasonable disagreement. (8) The requirement of public justifiability cannot reasonably be rejected: a commitment to public justification is part of what it means to be reasonable in the first place. (9) Therefore, the requirement of public justifiability (or of equal accessibility and acceptability, or of reciprocal and general acceptability) is a tolerant criterion of toleration. As illustrated by the central role of (8), Forst anchors his criterion of toleration in a conception of reasonableness – or, as he puts it, in  elements' of reasonableness. For Forst, reasonableness involves insight in the burdens of judgment and recognition of the existence of reasonable disagreement (as part of a more general insight in the finitude of both theoretical and practical reason), and two main commitments, one  epistemological', one  normative': The epistemological element of being reasonable consists in an insight into the finitude of both theoretical and practical reason. (...) The finitude of reason (...) [implies] the task of finding and defending justifiable reasons, because this is what reasonable and finite persons (...) owe to each other. (...) Thus the normative element of being 11 reasonable implies this form of respect for others as reasonable and worthy of being given adequate reasons; that is respect for their basic right to justification. Both elements in combination (...) are the basis for the acceptance and the recognition of the threshold of reciprocity and generality. They provide the essential reasons for being tolerant. Being tolerant thus means seeking reasonable agreement within the limits of reciprocity and generality, and being aware of the different contexts of justification that persons are part of (Forst 2003b, p. 80f). Given its context, this passage suggests that reasonableness involves at least three things, namely, (i) insight in the finitude of reason and recognition of the burdens of judgments and of the existence of reasonable disagreement; (ii) a commitment to providing adequate, justifying reasons – reasons, that is, that, where appropriate, pass the threshold of reciprocity and generality – that is, reasons that are equally accessible and acceptable by the relevant others, or that publicly justify; (iii) a commitment to respecting others as worthy of being given adequate reasons, or respecting their right to justification. Note that Forst is committed to the view that the conception of reasonableness that is characterized by (i), (ii) and (iii) is suitably accessible and acceptable by the relevant others. If it fails to be suitably acceptable, e.g., by being the subject to reasonable disagreement, then it would not be reasonable by its own lights – in which case, it would seem, it could not coherently ground a tolerant criterion of toleration. (I shall come back to this point later, especially in section 7.) In short, then, for Forst, the paradox of drawing the limits can be resolved only by a criterion of toleration that is not the subject of reasonable disagreement, while the requirement of public justifiability – or of reciprocity and generality – as it reflects elements of reasonableness, is not the subject of such disagreement, and therefore provides a criterion of toleration that resolves the paradox of drawing the limits. Writes Forst: The [paradox of drawing the limits] says that toleration, as soon as its limits are defined by a certain content, becomes intolerant toward those  outside' [i.e., those deemed intolerable]. As an answer to this, (...) we cannot call any form of moral critique  intolerance', because then we lose the concept of toleration completely. Instead, by drawing the  limits of toleration' with the help of the criteria of reciprocity and generality, we draw them (...) in the widest possible way given the existence of a large diversity of world-views, without sacrificing one for the sake of the unjustifiable claims of the other. Thus there is no arbitrary substantive content that defines the tolerable (...) (Forst 2003b, p. 81). 12 That is, to retain the concept of toleration, we need to concede that not all rejections of conceptions of the good and the right are intolerant, but only those rejections that are not based on adequate, publicly justifiable reasons – and a commitment to public justifiability is part of what it means to be reasonable. Where rejections are based on the criteria of reciprocity and generality, then, they are not intolerant. 5. So much as a reconstruction of this constructivist conception of toleration. At its core, we have seen, are two ideas: the idea that a criterion of toleration, to be tolerant itself, may not be the subject of reasonable disagreement, and so needs to be compelling from the standpoint of reasonableness, and the idea that a requirement of public justifiability can play the role of such a criterion. These ideas, in turn, are embedded in a view to the effect that the requirement of public justifiability answers to the validity claims of political principles and duly reflects the discursive moral standing of people as beings that have, as Forst often puts it, a  right to justification'. It is not entirely clear what relation obtains between the requirement of public justifiability and Forst's right to justification; what is clear, however, is that this conception of toleration takes reasonableness to entail, amongst other things, a commitment to public justification and a commitment to according to others the sort of discursive moral standing just referred to. In the remainder of my discussion, I shall call into question the plausibility and coherence of this conception of toleration. If a criterion of toleration, to overcome the paradox of drawing the limits, may not be the subject of reasonable disagreement, then Forst's criterion does not seem to be suitable for the task. For, it is plausible to believe, both the requirement of public justifiability and Forst's conception of reasonableness are, or can be, the subject of disagreement that is, or can be, reasonable. At the same time, there are reasons to believe that a Forst-type approach cannot coherently characterize reasonableness in terms of a constructivist requirement of public justifiability. I shall turn to the issue of incoherence later on, and shall now address concerns that relate to the first issue. To begin with, Forst's criterion of toleration, i.e., the requirement of public justifiability, is a constructivist requirement, and constructivism is a philosophically disputed doctrine. As we have seen above already, anticonstructivists, such as Platonists, moral realists and perfectionists reject the view that accessibility and acceptability justifies in its own right, or constitutes correctness. Thus, Forst's criterion of toleration is the subject of disagreement, and some of this disagreement reflects long-standing, intelligent, conscientious, informed and systematic controversies about the criteria and the foundations of practical reasoning and justification. Now, it is plausible to claim that intelligent, conscientious, informed and systematic disagreement about constructivism is, or can be, reasonable disagreement, if anything is. If that is right, though, then we would have to conclude that Forst's criterion of toleration is, or can be, the subject of reasonable disagreement, and so fails to be tolerant itself. By implication, his 13 criterion of toleration does not overcome the paradox of drawing the limits. Of course, this line of thought, while plausible, might beg the question. After all, it simply takes it that it is not, or at least not necessarily, unreasonable to reject the requirement of public justifiability. Nevertheless, disagreement, or at least intelligent, conscientious, informed, and systematic disagreement, gives rise to a simple dialectic that undermines the aspirations of a Forst-type,  reason-based' constructivist conception of toleration. That is, suitably sophisticated disagreement about a constructivist criterion of toleration either is reasonable, or it is unreasonable. If it is seen as reasonable, the conclusion drawn in the last paragraph follows. If it is seen as unreasonable, however, another problem ensues. For the view that suitably sophisticated disagreement about a constructivist requirement of public justifiability fails to be reasonable will amount to little more than a mere stretch of dogmatism unless it is made the subject of justification itself. Thus, constructivists like Forst would need to (publicly) justify to others who disagree with them that we cannot reasonably reject the constructivist requirement of public justifiability. Now, it seems that this justification cannot without vicious circularity, or, again, dogmatism, presuppose that reasonableness involves a commitment to a constructivist requirement of public justification. Instead, such a justification would have to establish the link between reasonableness and that requirement in the first place. But this entails that the  reason-based' conception of toleration at hand would in effect cease to be reason-based: rather than being reason based, that is, it would have to be based on whatever it is that justifies the claim that reasonableness involves a commitment to a constructivist requirement of public justifiability. All this assumes that reasonableness can coherently be thought of in terms that are thin or abstract enough in content to not entail constructivism. And of course this is possible. Consider, for instance, Moore's view of the meaning of the word ―reasonable‖: The idea of being reasonable, at least in ordinary discourse, involves the idea of offering reasons for one's actions and being prepared to listen to and be persuaded by the reasons of others. This practice of reason-giving, which defines the reasonable person, presupposes that others are worthy of reason-giving and some minimum consideration, but it is also compatible with highly partial reasons. Indeed, many of the reasons that people offer to justify their actions are inextricably linked to the things that they deem important from the personal perspective, such as their own desires, aims and ends (Moore 1996, p. 1712). This seems to get things approximately right. On this picture, reasonableness, at least as far as the meaning of the term is concerned, involves a commitment to a practice of reason-giving, or justification, but not necessarily to a constructivist practice of reason-giving, or justification. And reasonable people take it that others are, as Moore puts it here, worthy of reason-giving and some minimum consideration: but being worthy of reason-giving and some minimum consideration marks a discursive moral standing that may or may not amount or entail to a right 14 to (public) justification. That is, that reasonable people should pursue their willingness to engage in reason-giving and to accord to others a certain discursive moral standing by adhering to a constructivist requirement of public justification is a substantive claim – a claim, that is, that might have much in its favor, but that is nevertheless disputed by reasonable people who reject constructivism. And even if we go beyond Moore's view of reasonableness, and add that reasonable people attach positive value to reasoned agreement (or, say, reasoned convergence in judgment, or unanimity), constructivism would still not follow – this is so at least so long as it remains open what justificatory role, if any, reasonable people accord, or should accord, to reasoned agreement, and by what standards they take, or should take, such agreement to be reasoned in the first place. As far as the meaning of the term  reasonable' is concerned, then, reasonable people can coherently reject a constructivist requirement of public justifiability and with it a Forst-type criterion of toleration. Another remark is in place. Especially if we follow constructivists like Forst and place considerable importance on inclusive reasoned agreement, or wide accessibility and acceptability (whether or not we also accord a genuinely justificatory role to agreement or acceptability), do we have reasons not to presuppose in our justifications a view of reasonableness that some relevant others are committed to reject. To apply O'Neill's terms to the case at hand, we should select starting points for our justifications that abstract from, or  bracket', (purported) elements of reasonableness that some relevant others intelligently dispute, and we should do so not only to ensure that our starting points and the conclusions that we seek to build on them are suitably acceptable by all relevant others, but also in order to avoid dogmatism.7 As there is intelligent, conscientious, informed and systematic disagreement about constructivism, then, we have reasons to base an account of toleration (or indeed of anything else), if it is to be  reasonbased', on a notion of reasonableness that is abstract or thin enough in content to allow such disagreement about constructivism to qualify as reasonable disagreement. (In fact, as we shall see in section 7, there might be reasons to endorse a much stronger version of this claim.) 6. Let us observe next that a rejection of the requirement of public justifiability does not commit us to reject the view that there are burdens of judgment, or that political principles raise special validity claims, or, not least, that people have a right to justification, all understood in suitable terms. Thus, these things neither entail that requirement, nor do they suffice to establish that reasonable people should understand their commitment to a practice of reason-giving, or justification, in constructivist terms. Take the issue of the burdens of judgment first. We do not need to deny that 7 O'Neill elaborates on abstraction in O'Neill (1996), pp. 38ff. See also O'Neill (1988). 15 there are burdens of judgment if we reject a constructivist requirement of public justification. Rawls-type burdens of judgment explain how disagreement that is characterized as reasonable on other, independent grounds can come about. Thus, where we reject a constructivist requirement of public justifiability, or, say, concede that this requirement, too, is the subject of reasonable disagreement, we simply (and plausibly) add to the list of reasonable disagreements the emergence of which would need to be explained by a true account of the burdens of judgment. That is, rejecting the requirement of public justifiability might enrich or deepen the explanatory agenda of an account of the burdens of judgment, but it does not entail that there are no such burdens. Next, consider the validity claims of political principles. Much depends on how we conceptualize validity claims in the first place. If we seek to construe of validity claims in terms that do not depend on or suppose the resolution of longstanding epistemological, ontological and normative disagreements about the nature of practical, political justification, then, evidently, we have reasons to construe of them in terms that neither entail constructivism nor anti-constructivism. And, quite on the lines of the point made at the end of the previous section, it would seem that we have such reasons anyway. On the one hand, if we positively value inclusive reasoned agreement about the foundations of toleration, or, more narrowly, of practical justification, then we have reasons to construe of validity claims in terms that abstract enough from constructivist assumptions to be accessible and acceptable to all relevant others, including, as it were, anticonstructivists, such as Platonists, moral realists, or perfectionists. Thus, constructivists have reasons to conceptualize validity claims in terms that do not require constructivist public justification. On the other hand, that we claim our political principles to be correct (or true, valid, or reasonable) does not by itself entail any particular conception of the standards of the correctness of such principles. The practice of raising validity claims might give us reasons to search for some such conception, but it does not single out any particular conception as the right one. After all, the search for the best account of the nature of correctness in political principles is shared by proponents and opponents of constructivism alike. Not least, does a rejection of the constructivist requirement of public justifiability entail a rejection of the idea that people have a right to justification? Again, the issue turns on how we construe of this right in the first place. As we have already seen, it is not entirely clear how Forst's narrative relates the right to justification to the requirement (and the practice) of public justifiability. Now, if we are to assume that this right is a constructed or attributed right in the sense that it depends for its authority on constructivist public justification, then this right is as controversial as constructivism itself. If, by contrast, the right to justification does not depend on the resolution of long-standing disagreements about the nature of practical justification, then it cannot entail or suppose constructivism. It would seem that the latter marks a more plausible way to construe of this right anyway. Forst's label  right to justification' refers to the discursive moral standing of being, 16 or being seen to be, worthy of being given adequate, justifying reasons – or, to use Moore's terms, of being  worthy of reason-giving and some minimum consideration'. And construing of others as having discursive moral standing does not by itself, or conceptually, commit us to any particular conception of the goodness of reasons or of the requirements of justification. More specifically, there are at least two distinct types of discursive moral standing that one can accord to others: one justification-constitutive type and one justification-consequential type. If we take it that other people have constitutive discursive moral standing, then we not only believe that we should interact with them on the basis of reasons that they could accept – as a way to treat them as being worthy of reason-giving and at least minimal consideration – but also take it that the goodness of good reasons at least in part is a function of what these others could accept. This, it seems, is the kind of discursive moral standing that constructivists like Forst have in mind; and if the right to justification refers to this sort of discursive moral standing, then attributing that right to others comes with a commitment to constructivism, while anticonstructivists will have reasons to reject that others have a right to justification.8 Things are different, of course, if we accord to other people consequential discursive moral standing. In that case, we seek to interact with them on the basis of reasons they could accept, but we do not take the acceptability of those reasons as something that (in part) constitutes the goodness of good reasons, but, rather, see it as something that flows from, or is a consequence of, a proper appreciation of their goodness.9 This is a kind of discursive moral standing that anti-constructivists can accord to other people, as it does not commit us to constructivist criteria of good reasons or justification. However, once we consider that there are distinct types of discursive moral standing, it emerges that a right to justification that actually does entail constructivism would at best amount to a reasonably 8 It is not always clear what kind of moral standing constructivists take others to have. Discursive standing, of course, is not the only kind of moral standing that we can accord to other beings. E.g., if we take sentience to be the morally relevant feature of a being, some non-human animals will merit moral standing, or, as we might also say, will be appropriate beneficiaries of moral concern, even though they will be unable to have discursive moral standing (in their own right). However, even where discursive standing is attributed, it is often unclear whether it is of the constitutive or the consequential type. Philosophers who are influenced by contractualist and Kantian ideas tend to construe of moral standing in terms of discursive standing, while interpreting the latter in constitutive terms – which often comes to the fore not so much by what they explicitly say, but by how they use the idea of discursive standing in substantive argument. E.g., political liberals often suggest that respect for other people requires us to interact with them on the basis of reasons that they could accept, and therefore commits us to constructivist public justification. Exemplary here is Larmore (1990) and (1994). Yet as much as there is no direct inference from moral standing to discursive standing is there no direct inference from discursive standing to constitutive discursive standing: in each case, we need substantive argument to show why beings that merit the more general type of standing should also be accorded the more specific type of standing. 9 By implication, according to others consequential discursive more standing would give us reasons to seek Nagel-type ideal unanimity (Nagel 1991, pp. 33f). 17 controversial, constructivist conception of the right of justification, or, say, a substantive ideal of discursive moral standing, rather than something that truly reflects what a right to justification necessarily entails, or that unpacks what it necessarily means to regard others as worthy of reason-giving and some minimal consideration. Accordingly, a constructivist requirement of public justification cannot be grounded in a right to justification unless it is already established on independent grounds why one should endorse a constitutive conception of discursive moral standing. By implication, especially if we follow constructivists like Forst and value reasoned agreement about the foundations of an account of toleration (or indeed of anything else) do we have reasons not to premise such an account on a right to justification that is understood in the constructivist terms of constitutive discursive moral standing. Instead, prior to further argument we should try to interpret our commitment to the discursive moral standing of other people in a way that allows it to be, as it certainly already is, shared by constructivists and non-constructivists alike. To sum up, at least as far as the meaning of the word  reasonable' is concerned, reasonable people embrace a practice of reason-giving, or justification, and accord to others discursive moral standing; and they can accept that there are burdens of judgment, that political principles raise special validity claims, and that people have a right to justification, while rejecting a constructivist requirement of public justification. And, again, there are reasons not to draw a distinct conclusion especially if we place positive value on reasoned agreement. All this suggests not only that Forst's criterion of toleration is the subject of reasonable disagreement – so that, by his own lights, it fails to be suitably tolerant, and so cannot overcome the paradox of drawing the limits. It also suggests that constructivists, insofar as they seek reasoned agreement, have reasons to premise an account of toleration, if it is to be reason-based, on an idea of reasonableness that is thin or abstract enough not to entail a constructivist requirement of public justifiability. 7. Perhaps we can strengthen this conclusion – a conclusion, however, that looks quite plausible in its own right. There is something self-defeating about the constructivist assumptions at the heart of the approach to toleration that we are considering. To conclude this discussion, let me now outline the nature of this problem. To begin with, then, even if we build a constructivist requirement of public justifiability into the idea of reasonableness, we can still ask whether it is reasonable to accept that requirement. In fact, especially if we build such a requirement into the idea of reasonableness will we have reasons to ask that question, given the importance that equal accessibility and acceptability – or reciprocal and general acceptability– thereby acquires, and given, too, that the resulting, constructivist conception of reasonableness will be the subject of intelligent, conscientious, informed and systematic disagreement. Let us note, as well, that the question of the reasonableness of the requirement of public 18 justifiability is consonant with the very point of the search for a tolerant criterion of toleration. At least by Forst's light, this search is a search for a criterion of toleration that cannot be rejected reasonably, and that hence is not the subject of reasonable disagreement. The search for a tolerant criterion of toleration, therefore, is the search for a criterion of toleration that is reasonable in a particularly strong sense. Now, if we characterize reasonableness in terms of a constructivist requirement of public justifiability, then if we ask whether it is reasonable in that sense to accept that requirement, what we in effect ask is the question of whether that requirement passes its own test.10 If it does not pass its own test, then it would not be reasonable in the relevant sense to accept it – it would, in other words, be self-defeating, or incoherent, to characterize reasonableness accordingly. However, it seems that the requirement of public justifiability does not pass its own test. Given the existence of sophisticated forms of anti-constructivism, the constructivist claim that equal accessibility and acceptability – or, in Forst's terms, reciprocal and general acceptability – constitutes the correctness (or the reasonableness, validity, or truth) of views, or, more generally, of stretches of thought, is not equally accessible and acceptable by all relevant others, and so is self-defeating. To elaborate, consider the following claim (for some view or stretch of thought, S): (10) S is correct (or has epistemic-practical authority) only if S is equally accessible and acceptable by all relevant others. This claim simply expresses a generic version of a constructivist requirement of public justifiability. Now, anti-constructivists, such as Platonists, moral realists, and perfectionists, cannot coherently accept that it is the equal accessibility and acceptability of S that constitutes the correctness (or epistemic-practical authority) of S – even though they might concede that equal accessibility and acceptability is an important desideratum or by-product of good reasons, justifications, or stretches of thought. Thus, anti-constructivists are committed to reject (10). However, if Betty cannot coherently accept S without first abandoning major, defining elements of her current anti-constructivist outlook on matters relating to the acceptability of S, but Paul can coherently accept S without any such changes to his outlook, then, it seems, S is not  equally accessible and acceptable' by Betty and Paul. But if that is so and if anti-constructivists count as  relevant others' at the level of discourse about the nature of reasonableness, the requirements of toleration, and the nature of correctness – which, it seems, most constructivists would concede – then two things seem to follow: (11) It is not the case that (10) is equally accessible and acceptable by all relevant others. 10 As it is worth adding, on a Kantian constructivist view of reason, a requirement can adequately define reason as such only if it passes its own test. See O'Neill (1989a). 19 (12) Given (11) and the condition expressed by (10), (10) is not correct (or does not have epistemic-practical authority). If (12) indeed follows, then a constructivist requirement of public justifiability is self-defeating if and when it needs to pass its own test. Taking the equal accessibility and acceptability of stretches of thought to be something that constitutes the correctness of stretches of thought fails to be equally accessible and acceptable by all relevant others.11 If we translate this back into the language of reasonableness, the following is suggested. If we understand reasonableness in terms of a constructivist requirement of public justifiability, then it is unreasonable to accept stretches of thought that need to meet, but fail to meet, that requirement. However, if the requirement of public justifiability needs to meet that requirement, or needs to pass its own test, then it would be unreasonable to accept it: as I have just suggested, that requirement does not pass its own test. Consequently, it would be unreasonable to be reasonable. And this looks very much like a reductio ad absurdum of the attempt to define, explain or characterize reasonableness in terms of a constructivist requirement of public justifiability. As it is worth emphasizing, though, the lesson here is not that we must reject a constructivist requirement of public justifiability, or that it could never be coherent to endorse that requirement as a the criterion of toleration. The lesson is more complex. Strictly speaking, all that follows is that it is incoherent to require a criterion of toleration not to be the subject of reasonable disagreement, while both (i) construing reasonableness in terms of that requirement and (ii) advancing this requirement as a criterion of toleration. If a criterion of toleration can overcome the paradox of drawing the limits only if it is not the subject of reasonable disagreement (that is, if we endorse one of Forst's key intuitions about the coherence of the very idea of toleration), then we have at least two options. Either we abandon claim (i) by conceding that it is not, or not necessarily, unreasonable to reject the constructivist requirement of public justifiability; or we abandon claim 11 For a detailed discussion of this problem, see Besch (2008). To mention just two possible strategies to overcome it, constructivists could tweak the requirement of public justifiability in such a way that it can be claimed to be accessible and acceptable by all relevant others despite the fact that some people intelligently and conscientiously reject it. E.g., they might argue that these people could accept this requirement in the conditional sense that they would accept it, or could coherently accept it, if they did not endorse the views, interests or preferences that actually keep them from accepting it. Another move might be to impose restrictions on the membership in the group of the  relevant others'. E.g., constructivists might insist that a criterion of toleration needs to be equally accessible and acceptable only by those people who do not reject that political principles can count as correct (or valid or reasonable) only if they are equally accessible and acceptable by all relevant others. Either way, however, it is hard to see how the attempt to save the requirement of public justifiability can draw its rationale from its equal accessibility and acceptability. It would be more plausible to argue that the importance or value of this requirement does not depend on its equal accessibility and acceptability, and to attempt to defend constructivism on non-constructivist grounds. I elaborate on this in the paper just referred to. 20 (ii) by accepting that this requirement is not a suitable criterion of toleration. It has been the drift of my argument to suggest that abandoning (i) is a good thing in its own right, given the meaning of the word  reasonable' and the fact that discursive moral standing is not necessarily of the constitutive type, and considering, as well, the implications of placing positive value on wide accessibility and acceptability. Once this is supposed, though, it would follow that a constructivist requirement of public justifiability can be a criterion of toleration only if such a criterion may be the subject of reasonable disagreement. This implication would call for either of two things: constructivists would have to show that a criterion of toleration does not need to overcome the paradox of drawing the limits, or that such a criterion, to overcome that paradox, does not need to avoid reasonable disagreement. But this would seem to give away the very essence of a respect conception of toleration and the search for a tolerant conception of toleration. Consequently, if we abandon (i), but adhere to a respect conception of toleration and seek a tolerant criterion of toleration, we have reasons to also abandon (ii) by concluding that a constructivist requirement of public justifiability cannot be the criterion of toleration.12 Thomas M. Besch Department of Philosophy, The University of Sydney, Sydney, NSW 2006, Australia. thomas.besch@sydndey.edu.au 12 For helpful feedback I am indebted to Sabine I. Jentsch, Duncan Ivison, Andreas Muth, Paul Redding, J. L. Sands, W. Todd Davidson, as well as the attendants of a presentation of an earlier version of this paper at Bogazici University, Istanbul, in early 2008. 21 References Besch, TM 2008,  Constructing Practical Reason: O'Neill on the Grounds of Kantian Constructivism', Journal of Value Inquiry, Vol. 42, no.1. –– 1998, Über John Rawls' politischen Liberalismus, Peter Lang, Frankfurt a. M. Brown, W (2001),  Reflections on Tolerance in the Age of Identity', in Botwinick A, Connolly WE (eds.), Democracy and Vision. Princeton University Press, Princeton. Forst, R 2007a,  Das grundlegende Recht auf Rechtfertigung. Zu einer konstruktivitischen Konzeption von Menschenrechten', in Forst (2007b). –– 2007b, Das Recht auf Rechtfertigung, Suhrkamp, Frankfurt a. M. –– 2004,  The Limits of Toleration', Constellations, Vol. 11, no. 3. –– 2003a, Toleranz im Konflikt. Suhrkamp, Frankfurt a. M. –– 2003b,  Toleration, justice and reason', in McKinnon, C & Castiglione, D (eds) 2003. –– 2002, Contexts of Justice. University of California Press, Berkeley/Los Angeles. –– 1999,  The Basic Right to Justification: Toward a Constructivist Conception of Human Rights', Constellations, Vol. 6, no. 1. –– 1994, Kontexte der Gerechtigkeit. Suhrkamp, Frankfurt a. M. Kymlicka, W 1996, Multicultural Citizenship. Oxford University Press, Oxford. Larmore, C 1990,  Political Liberalism', Political Theory Vol. 18, no. 3. - 1994,  Pluralism and Reasonable Disagreement', Social Philosophy and Policy 11, no. 1. Macedo, S 1991, LiberalVirtues. Oxford University Press, Oxford. McKinnon, C 2006, Toleration. Routledge, Abingdon. McKinnon, C & Castiglione, D (eds) 2003, The culture of toleration in diverse societies. Manchester University Press, Manchester. Moore, M 1996,  On Reasonableness', Journal of Applied Philosophy, Vol. 13, no. 2. Murphy, AR 1997,  Tolerance, Toleration, and the Liberal Tradition', Polity, Vol. 29, no. 4. Nagel, T 1991, Equality and Partiality. Oxford University Press, Oxford. O'Neill, O 2003,  Constructivism in Rawls and Kant', in Freeman S (ed.), The Cambridge Companion to Rawls. Cambridge University Press, Cambridge. –– 1996, Toward Justice and Virtue. Cambridge University Press, Cambridge. –– 1989a,  The Public Use of Reason', in O'Neill, Constructions of Reason. Cambridge University Press, Cambridge. –– 1989b,  Constructivisms in Ethics', in O'Neill (1989). –– 1988,  Abstraction, Idealization and Ideology', in Evans, JDG (ed.), Moral Philosophy and Contemporary Problems. Cambridge University Press, Cambridge. Rawls, J 1993, Political Liberalism. Columbia University Press, New York. Raz, J 1986, The Morality of Freedom. Clarendon Press, Oxford. Waldron, J 2003,  Toleration and Reasonableness', in McKinnon & Castiglione (2003).