The Cultural Limits of Legal Tolerance

Abstract

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.

Rethinking Canadian Discourses of “Reasonable Accommodation”

“…Emma Teitel (2014) of Maclean's magazine similarly presumed that the student must be either an Orthodox Jew or an Orthodox Muslim, and concluded that his "accommodation request" was outside the precepts of these religions. These responses significantly delimit the parameters of what is a 'reasonable religion' in a Western liberal context (cf., Berger, 2012). They are also vulnerable to sensationalism, as well as Orientalist and Islamophobic commentary.…”

“…In addition to the evaluation of the content of religion, assessing the 'reasonability' of RA also triggers determination of the request's compatibility with fixed societal values. Built on inherent power asymmetries (Barras, 2016;Beaman, 2012;Berger, 2012;Selby et al, 2018), the RA framework requires a determination of whether a request fits within the benchmark of 'our values', which in turn are constructed as stable, easily definable, ahistorical and unchanging.…”

In Your Face

“…The dominant community’s assumptions remain unquestioned. The majority decision is premised on NS’ difference, assuming the court must ‘permit her’ to wear the niqab (Berger, 2008; Brown, 2006). Starting from the assumption that she must remove her niqab is subjective; there is no constitutional right to face one’s accuser.…”

Transformations of Religion and the Public Sphere

“…But they also used the texts of geographical surveys, 'real estate' deeds, and other documents to claim what they took to be the fundament -the wilderness -in both state-sanctioned and 'mythologically' grounded ways. To adapt Benjamin Berger's argument about how Canadian law has both transcendent authority and a will to convert at its core, missionaries were very aware of how the Bible and the law were powerful and complementary tools for their own task of conversion (Berger, 2010). Anglican missionary James Benjamin McCullagh (1854-1921) well understood that competing mentalities and practices of claiming land were at the heart of conflicts between Nisga'a and colonial secular Christianity.…”