Ratio Juris. Vol. 10 No.

2 June 1997 (236–46)

Tolerance of the Intolerant?

GUY HAARSCHER

Abstract. In the first part of the essay, the author analyzes the difference and the rela-
tion between two different ideas of toleration, the passive and the active meaning.
While the former is related to opportunistic and prudential purposes, the second is
grounded in an ethical framework and presupposes the individual’s freedom of
conscience. This second meaning appears to be very important in a multicultural
society: On its basis it is possible to develop toleration both as a plurality of contexts
of choice and as a priority rule between conscience and culture in Rawlsian terms. In
the second part, starting from the case of O. Preminger Institut v. Austria, the author
examines the relation between this idea of toleration and freedom of speech.

1. Philosophy: the Multiple Aspects of the Idea of Tolerance

What does tolerance mean in contemporary societies? It can be defined on a
broad spectrum. At one end, tolerance is identified with a sort of passive
acceptance of the “other”: There can be no question of considering his
opinions valid, and still less as potentially enriching. He is simply tolerated,
that is one accepts his existence, basically for prudential or opportunist
purposes and not on principle. Let’s only mention the French Edit de Nantes
(1598), which granted certain rights to the Protestants (Huguenots). This
document was signed by King Henry IV in particular circumstances: The
Protestants were too strong to be wiped out and too weak to be able to seize
power; so a compromise was reached according to which the Huguenots
were confirmed in their right to possess some fortified towns (particularly
in Western France), and their religious liberty was affirmed. When these
circumstances changed (as Machiavelli said: “time pushes everything
forward”),1 that is, when the French Catholic monarchy was strengthened,
Louis XIV simply revoked the Edit (1685). However, one must not under-
estimate such an idea of prudential or “self-interested” tolerance: It is of
course much less legitimate than active tolerance, based on a principled

1
“[…] car le temps chasse tout devant soi et peut apporter avec soi le bien comme le mal, et le
mal comme le bien”: Machiavelli 1980, part 3, 46.

© Blackwell Publishers Ltd 1997, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.
 Tolerance of the Intolerant? 237

attitude, a “categorical imperative” in the Kantian sense. But it means begin-

ning with an imperfect, an “impure” tolerance, based on enlightened self-
interest. We could reasonably say that we need not overtax people’s strength
in matters of virtue, provided we want to build political society on a
sufficiently broad foundation.
Active tolerance is related to a quite different intellectual framework. Such
an attitude has an essentially ethical character: Freedom of conscience is af-
firmed as being a categorical principle. Usually, passive tolerance or tolerance
“with resignation” is, as it were, asymmetrical inasmuch as the minority
group is accepted as a fact because one is not able to absorb (assimilate) or
eliminate it. Freedom of conscience, on the contrary, being at the other end
of the above-mentioned spectrum, presupposes a principled symmetry, that
is equality of rights. In concrete historical reality, one can of course enumer-
ate an indefinite number of intermediary degrees between these two poles of
the idea of tolerance, between the prudential-minimal-“asymmetrical” idea
and the ethical-maximal-“symmetrical” idea. And it is not at all excluded
that the former could, in certain circumstances, promote the progressive
emergence of the latter. Let’s remember here the motto “kneel down, pray
and implore” (“mettez-vous à genoux, priez et implorez”), addressed to the
libertines, or his eminently calculating bet (pari), based on enlightened self-
interest: Self-interested behavior can create a habitus which possesses a
certain symbolic efficiency, eventually allowing a “conversion” to the ethical
attitude that definitely leads beyond the “evil” realm of calculus and en-
lightened self-interest. So at the time when the Edit de Nantes was revoked
(1685), the very idea of tolerance had developed in the public mentality. That
is, it became more and more acceptable (although with much conservative
reaction, as Louis XIV’s policy shows) that an individual practising a
different religion could at the same time be a good and loyal citizen, pay his
taxes, wage war, etc. In his Letters concerning toleration, John Locke (1765)
dissociated in a decisive way political questions and questions of conscience:
The State was supposed to regulate exterior interests like life, liberty and
property, and not matters of personal orientation (seeking the good life). The
separation of the right and the good was firmly grounded, although Locke
thought, for instance, that atheists were incapable of being good citizens:
Believing in no divinity, they were not supposed to be able to honor their
commitments. And the Catholics were for another reason also denied the
freedom of conscience that was granted to the “protestant” groups: They had
a double allegiance, that is they were loyal to their country and Rome. So the
Catholics had too many loyalties, the atheists were unable in general to be
loyal, to “promise,” to abide by the fundamental principle of politics: Pacta
sunt servanda.
There remains, however, an imbalance between the passive and active
versions of the idea of tolerance. The former can be understood in individ-
ualist and in holistic terms. Actually, it is possible to “tolerate,” in the minimal
© Blackwell Publishers Ltd 1997.
238 Guy Haarscher

sense of the term, the existence of religious—very often minority—groups by

granting them a more or less broad collective autonomy. The individual
members of such groups will not necessarily be free to choose their allegi-
ance: Instead of depending on an imposed alien religion, they will be sub-
jected to the confession of their “tribe”; they will only have changed masters
(in the sixteenth century, the principle cujus regio, ejus religio was supposed
to help pacify post-Reformation Europe by making the religion of the sub-
jects dependent on that chosen by the Prince). The history of minority
protections cannot therefore be too hastily identified with the progress of
individual human rights, and especially of freedom of conscience, which is,
as Jellinek (1964) showed, at their very core. One may tolerate a group and
grant its leaders rights and privileges which will mean oppression and
imprisonment (at any rate the refusal of free choice) for its members, who
would be considered, as it were, the “property” of the “government” of the
recognized minority.
Freedom of conscience must thus be distinguished from opportunist toler-
ance not only by its ethical and categorical character: The point is not just a
question of the source (interest or duty) of the considered judgment or atti-
tude. Indeed, there is a second important difference, related to the substance
and nature of the rights conferred: Freedom of conscience is necessarily
personal, “individualist”; matters of conscience should not be imposed on any-
one through external constraint. Freedom of conscience presupposes moral
autonomy: It excludes heteronomy, whereas passive tolerance quite often
implies it (cujus regio, ejus religio: just a changing of masters). The size of the
community is irrelevant as long as this problem is left unsolved.
Passive tolerance can therefore very well be compatible with a sort of
segregation, a coexistence of oppressive (micro)political orders. It is only pro-
gressively, through the Enlightenment process, that individual freedom of
conscience has been substituted for concrete and particular, communitarian
and holistic protections related to passive tolerance. However, in the nine-
teenth century, the ascent of “scientific” racism made things evolve in an ex-
tremist direction: This time, the separation of different groups was no longer
related to opportunist tolerance but was definitely grounded on a “biological”
hierarchy of human races. Accordingly, the situation of the “other” group
went from bad to worse: Its lot meant exclusion and even extermination. In
one sense, there is a continuity between passive tolerance and racism: In both
cases the “other” is not really perceived as an alter ego; at most, one coexists
with him (1598), and at the very worst one crushes or deports him when one
finds a way of doing it (1685). In other words, nothing guarantees that a
simple exterior juxtaposition of groups will remain peaceful: Such an
indefinite fragmentation of society into “tribes” is what Hegel (1970 par. 85,
227) called the “bad infinite”; in the absence of a recognition of the other
as the same in his or her difference (principle of humanism, universalism and
active tolerance), there is so to speak an abyss between the respective
© Blackwell Publishers Ltd 1997.
 Tolerance of the Intolerant? 239

members of both groups; their values are radically different, and finally,
if they achieve a certain mutual “respect,” this takes place only in the
framework of force relationships that are by definition always volatile and
reversible. One cannot seriously say, without exaggeration, that the worm of
oppression hides in the fruit of prudential coexistence; but non-recognition,
mutual strangeness carried to extremes, is at least a possible outcome of
such a merely passive acceptance of the other. Passive acceptance is not
enough to build a democratic community of free and equal citizens. It can
progressively lead to a principled openness to the other (real freedom of
conscience), but also to a separation of tribes. And if this separation is
interpreted in the “scientific” context of a “natural” hierarchy, the result may
ultimately lead to nazism.
Confronted with such a “fragmentation” of humanity into radically
heterogeneous and hostile groups, the philosophy of human rights (and first
of all pluralism, which is a necessary correlative of freedom of conscience)
was for a while an efficient antidote: Humanist universalism was opposed to
the particularism of racialism, and the principle of equal liberty to hierarchic
“biological” thought. But more recently, the debate has been subtly trans-
formed: The wolf of communitarian particularism has been introduced, so to
speak, into the sheepfold of fundamental liberties. Actually, let’s say in short
that since 1945 biological hierarchical racism is no longer publicly accepted.
In order to have access to the public sphere of discussion, one must necessar-
ily pay tribute—or at least lip service—to the now dominant human rights
thought. Generally, ideas which are, because of their success, transformed
into, as it were, a ruling ideology, unavoidably become progressively insipid:
They necessarily acquire a superficial character. This is the case, today, of
human rights, which have been metamorphosed into a self-evidence, that is
into apparently simple values, reached by consensus. Such a shallowness is
quite hazardous. In particular, it facilitates the penetration of the humanist
“domain” by hostile, disguised forces. So far as tolerance is concerned, its
new name is “the right to be different.” Now what kind of difference is it all
about? A cultural difference, understood in holistic terms. Antiethnocentrism
involves the rejection of any domination of one culture by another: This is
the meaning, in our contemporary “multicultural” societies, of the require-
ment of respect and “tolerance” for the other culture. But should we respect
a culture, that is a holistic entity? In certain definite circumstances, the an-
swer might be yes: When a free association of individuals decide to preserve
it (necessarily at the same time reinterpreting it), and want to go on living
in what Kymlicka (1989, 162 ff.; 1995) calls a “context of choice.” But such
a liberty (first of all the freedom of conscience) must be preserved as the
essential value, so that the “culture” is not imposed on people and is, on the
contrary, affirmed in openness to the other. Actually, this openness involves
the unavoidable risk of dissolution of one culture into the other: Individual
choices are not predictable, no leader is able to master them in advance. Does
© Blackwell Publishers Ltd 1997.
240 Guy Haarscher

this mean that the right to be different would boil down to protecting
individual liberty? Not exactly. It is true that, if one grants such a right to
authoritarian and hierarchical “cultures,” that is, to more or less closed col-
lectivities, one ipso facto imprisons individuals in the exclusive domain of the
“ethnic” leaders. All the same, going in search of the good life, which is the
very aim of freedom of conscience—can only take place on a “cultural” soil:
One defines oneself against something, within a horizon of sense, and if this
is lacking, the process of seeking the good life (“wisdom”) might wither. This
is the reason why it is so important that a multiplicity of perspectives on
life—“contexts of choice”—can be maintained, of course in a permanent
process of change, without which uniformity would be dominant (what
Marcuse and the Frankfurt School stigmatized as “one-dimensional thought”).
Such a multiplicity has strictly nothing to do with a relativism or a “differ-
entialism,” that is with an idea of coexistence—everyone in their own home,
as it were—, which would leave the groups in a narcissistic closeness on
themselves. In other words, we must understand multiculturalism in a sense
which would not condone non-interventionism, absolute respect of com-
munitarian “sovereignties,” a right of micro-leaders to dispose of “their” own
people.
On the contrary, such a plurality presupposes freedom of conscience
(which can be affirmed by analogy with the Rawlsian priority rule: If there
is a conflict between conscience and culture, the former prevails) (Rawls
1971, 40 ff.). That amounts to saying that toleration concerns, as far as ulti-
mate values are concerned, only individuals. But for fundamental anthro-
pological reasons, these can only project themselves in the future, create
a path, bear, as Sartre says, “the world on their own shoulders,”2 if a multi-
plicity of “itineraries” is at their disposal. It is necessary that one sees oneself
from the outside, through the eyes of a sufficiently different “other,” in order
to relativize his or her own certainties, that is in order to dissolve prejudices
(doxa). But such an “otherness” is impure: If it were complete, I could not
recognize myself “in” the other, who would be a member of a different spe-
cies. On the contrary, if such an otherness were to totally disappear, I would
only be confronted with myself, in the eternal return of a dull identity which
would work as the mirror of my complacency and the illusions of my ego
(which is an “imaginary” entity). So I need otherness in order to be rescued
from the “given,” from my former identity. Actually, the latter cannot be
identified with “myself,” but embodies, so to say, the Other in me: I can
come to myself only by taking a distance towards this “Other,” by reflecting
it (Sartre 1943, 147–49: “Man is a being of horizons,” he comes to himself
only through the “circuit of ipseity”; Nietzsche 1971, Prologue: “Become
what you are”—the task of the superman [Uebermensch]. But in order for me

2
“[…] l’homme, étant condamné à être libre, porte le poids du monde entier sur ses épaules
[…]”: Sartre 1943, 639.

© Blackwell Publishers Ltd 1997.

 Tolerance of the Intolerant? 241

to leave—always partially, “impurely”—a cultural identity by establishing a

relationship with another cultural horizon, the latter must have something
in common with me: I must recognize in it a certain continuity (and at the
same time a relative rupture) with my present “identity.” That is the reason
why the idea of integrating multiple perspectives is so radically opposed to
the notion of the coexistence of identities which are closed on themselves.
Tolerance could regress toward a neo-holism only at the cost of definitely
endangering democracy, Enlightenment and the liberty of the Moderns.

2. Law: Tolerating Blasphemy and/or Racist Speech?3

Let’s now take an example of the concrete problems related to tolerance in
the recent jurisprudence of the European Court of Human Rights in Stras-
bourg. As everybody knows, there are limits to freedom of expression (as dis-
tinct from freedom of conscience) (see below). These are stated in particular
in the second paragraph of article 10 of the European Convention on Human
Rights. It seemed taken for granted, at least since the Handyside judgment
(December 7, 1976), that offensive or disturbing speech belonged to the
realm of protected liberty. Let’s suppose conversely that shocking speech
(speech that would “disturb” one group or another in contemporary society)
might be repressed: The result would unavoidably be that we would live in
a permanently self-censoring world, a world of conformity and submission
to the dominant political correctness. In other words, democratic life—which
needs clear, lively debates resorting sometimes to caricature and exaggera-
tion—would wither, maybe even more than, for other reasons, it has already
withered. But it is not totally necessary to have recourse to such a utilitarian
argument, already used by John Stuart Mill (see Rees 1985, 156ff.), according
to which a broad freedom of expression serves the truth (if repressed,
opinions are not put to the test of critical debate, that is the Popperian pro-
cess of “falsification”). Indeed, one can, further “upstream” in the argument,
defend freedom of speech in the name of the principle that ethical matters
belong to the realm of conscience. In the first section of the present article,
we called this attitude “active tolerance.” It can be identified with a broad
interpretation of John Locke’s Letters concerning toleration (1765). Let’s re-
mark that an opinion which is imposed by force, threat or material incent-
ives is, strictly speaking, no longer an opinion: It will have been adopted for
the wrong reasons, that is self-interest, and not out of recognition of the idea’s
inner validity; so the latter will unavoidably be professed in an exterior,
superficial, pharisaic way. Religious proselytes (or ideologues of a total-
itarian party), who wanted to impose their dogmas through the secular arm
of the State, learned it to their cost: As soon as the pressure loosens (which
3
A French version of this section was published under the title “Le blasphémateur et le raciste,”
in Revue trimestrielle des droits de l’homme 23/1995. The English version was somewhat modified
and improved.

© Blackwell Publishers Ltd 1997.

242 Guy Haarscher

unavoidably happens in the world of the “becoming”), the “opinion” is

abandoned. No loyalty is due to it, one was not intimately convinced by its
validity, one just pretended to adopt it in order simply to survive. This is
another utilitarian justification of tolerance: The defenders of a “vision of the
world” should think it over, in their own interest, before trying to impose
their conception by force, that is to enforce the doctrine of compelle intrare
(“let’s force them to enter the Church”). But again, at a more fundamental
level, the essential principle is: Opinion is a matter of conscience, and not of
State constraint.
Things are, of course, not so simple in concrete cases. But before addressing
difficult questions, it is worthwhile achieving clarity on principles, even if
they remain abstract. Case law is built around and from principles, and
enriches them in a movement of feed-back. Such a valuable deepening pro-
cess risks being endangered if, at any time, decisions based on opportunist
motives, and therefore not consistent with the principles, are taken. That is
actually the case, in my opinion, in the Otto-Preminger-Institut v. Austria
judgment (September 20, 1994). But before analyzing it, let’s clarify further
the general perspective. A good example is provided by the Rushdie affair,
in its beginning in 1989, before the fatwa by Imam Khomeini “condemning”
him (of course, without any legal basis) to the death penalty. Rushdie is a
British citizen of Indian-Muslim origin. His book, The satanic verses (1988),
had brought upon him the wrath of fundamentalists: Copies of the book had
been publicly burnt, reminding us of the terrible Nazi auto-da-fés; pressure
had been brought to bear on bookstore managers to prevent them from dis-
tributing it. When British judges condemned such behavior, some Muslims
maintained that the State, instead of acting as a neutral referee, had taken
sides with Rushdie. That was strictly untrue. If Rushdie had burnt copies of
the Koran and assaulted traditionalist Muslims, or posted pages of The
satanic verses on the walls of the mosques, the sanction would have been
imposed on him. The State may not intervene in matters of interpretation of
sacred texts, and generally in problems related to the orientation of life. Con-
versely, the State must intervene in these matters when anybody prevents
another person from acting according to his or her free ethical choice. The
“modern” role of the State—which has the monopoly of legitimate violence
—does not consist in imposing a conception of the good life, but, on the con-
trary, in guaranteeing the conditions of autonomy for the weaker. Nobody
was obliged to read Rushdie, so the conflict should have been settled at once.
This was, as everybody knows, not the case: Khomeini’s fatwa was then
enacted.
But some political leaders affirmed that Rushdie had “exaggerated” and
that his book could be shocking for a part of the population. Regardless of
the fact that Rushdie had been insulted and burnt in effigy in Pakistan by
huge crowds even though The satanic verses had not been translated into
Urdu (which shows that the book was a priori condemned—that is before
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 Tolerance of the Intolerant? 243

reading), we must emphasize that even a posteriori, after reading, a book

(and its author) must be protected against people who dislike it. Nobody
prevented the adversaries of The satanic verses from responding, arguing,
even caricaturing and shocking or disturbing (remember the Handyside case
in The European Court of Human Rights) in attacking Rushdie. But they
were not allowed to use violence in order to prevent him from expressing
himself and therefore to deprive his potential readers from their right to
culture and information.
But what happens when a State represses blasphemy in a statute, or even
in its Constitution? One might have expected that such an extraordinary
instrument of human rights protection as the European Convention plays its
part fully. Now the Otto-Preminger judgment proves, in my opinion, the
contrary, and carries matters to extremes in order to spare and “protect” the
member States (and not the individual holders of the guaranteed rights).
A movie, based on a first rate literary work (Panizza 1973), was censured
by the Austrian judiciary (the film, which was to be screened in Innsbruck,
was confiscated), but the judges in Strasbourg justified such a censorship in
the name of human rights themselves; in particular, they invoked the “rights
of others,” and more precisely freedom of conscience (that is, our present topic).
But in doing so they gave a very debatable interpretation of the latter: Free-
dom of conscience would involve, according to the majority of judges, a right
not to be shocked in one’s religious convictions, even by a work of art that, by
definition, nobody is obliged to see. Such an attitude amounts, in my opinion,
to retrospectively justifying the arguments of the anti-Rushdie militants:
Freedom of expression stops just where the “other”—the rights of whom
one allegedly defends—begins to be shocked, to feel disturbed, “insulted.” If
such a theory of human rights—resulting from a particularly perverse
reading of article 4 of the Déclaration des droits de l’homme et du citoyen4—
were valid, neither Voltaire nor Sartre, nor (on the Catholic side) certain texts
by Bernanos, or better Léon Bloy could have been published. The great
literary polemic would have been in one way or another considered a “blas-
phemy” by the militants of the dominant religion, or—which amounts to the
same thing—of the official, politically correct atheism.
People have sometimes invoked, during the Rushdie affair, the idea of
“collective defamation.” Such an argument was doubly smart (but, as we shall
see, also particularly weak on the level of sound reasoning): One accused
Rushdie of defamation, undoubtedly a widely accepted and legitimate
limitation to the exercise of liberty; and, by doing this, one killed two birds
with one stone: Such a form of “defamation” was then identified with racist
discourse, which is legally repressed in the majority of member States of the
4
“La liberté consiste à faire tout ce qui ne nuit pas à autrui: ainsi, l’exercice des droits naturels
de chaque homme n’a de bornes que celles qui assurent aux autres membres de la société la
jouissance de ces même droits. Ces bornes ne peuvent être déterminées que par la loi”
(Déclaration des droits de l’homme et du citoyen du 1789, art. 4).

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244 Guy Haarscher

Council of Europe, as the relevant statutes also repress racist speech. Indeed,
one went on, collective defamation, that is, speech maliciously questioning
the honor of the members of a given group, is legitimately repressed in the
case of people defending an exclusionary ideology stigmatizing the “other.”
So blasphemy and racist speech were put on the same level: Both were
considered “collective defamation.” Why then refuse to condemn Rushdie or
the Otto-Preminger-Institute, if one accepts the repression of racist discourse?
Now there is precisely an essential difference between blasphemy and racist
speech. One must never forget that a religion is a set of ideas. In other words,
if some opinions are attacked, it is always possible for the “offended” to
defend them, to show that the adversary’s interpretation is insufficient or
erroneous, or else to change ideas (which seems humiliating only to fools),
that is to recognize, after discussion, the strength of the better argument (the
validity of the critique). This means that ideas are, at least in principle,
“detachable” from the individual and his thinking activity. Of course, such a
detachment does not take place in an instrumental way, as when somebody
changes his or her shirt. It often involves, as Sartre puts it, that one “thinks
against oneself”:5 One must be ready to dissolve prejudices inside oneself.
Now these might, in other respects, be “comfortable” and reassuring. It
should also be remembered in this context that ideas which have been taken
upon oneself for a long time seem to “stick,” as it were, to the person, to his
or her character: The discovery of their inanity will unavoidably affect, as
would a narcissistic wound, the individual himself. He will thus sometimes
tend to feel insulted, lowered, “defamed.” But how can we believe for a
single moment that reason and the strength of the better argument—for
which the critical interlocutor is only a vehicle—would amount to an
“insult”? Will we eternally repeat the trial of Socrates, who was condemned
by an Athenian tribunal because his use of maieutics destroyed the illusory
certainties of his fellow citizens? And if the attack against the given idea
proves weak, unjustified, if its bad faith becomes visible to all, it will be
all the easier to reject the critique as such. Either the critique is valid, which
means that reason—or at least reasonableness—speaks through it, or it
will crumble under the legitimate “attacks” of the counter-arguments. In
either case, how could one seriously speak of “defamation”? It is only
through a perverse interpretation of the philosophy of human rights—and
in particular of article 9 § 2 of the European Convention, which makes
provision for a limitation of freedom of expression in the name of, notably,
the “rights of others”—that the judges in Strasbourg were able to reject the
case brought before them by the Otto-Preminger-Institute. Panizza’s work is
for the Catholics what Rushdie’s novel is for the Muslims: A free critique
which deserves only counter-argument. In these matters, it cannot be a

5
“[…] je fus amené à penser systématiquement contre moi-même au point de mesurer
l’évidence d’une idée au déplaisir qu’elle me causait”: Sartre 1964, 210.

© Blackwell Publishers Ltd 1997.

 Tolerance of the Intolerant? 245

question of using the “sword,” but only discourse, the communication of

thoughts, even if these are in their turn shocking and disturbing. Finally, it is
only out of an error of perspective that persons can be identified with their
ideas: In principle, the very concept of liberty presupposes a splitting of two
entities, that is the independence of thought from the particular ideas which
are adopted in contingent contexts: The former always survives its tempor-
ary crystallization into an opinion.
But if there is strictly speaking no “defamation” concerning ideas, if thus
a group accepting common values—a common conception of the “good”—
is not entitled, in the intellectual framework of human rights, to insist on
legal repression of speech criticizing these values, what can be said about
racist speech? In my opinion, the confusion is extreme here: The racist does not
attack ideas. Did the Nazis ask for the “opinions” of the children who were
abducted in Izieu (near Lyon, in occupied France) and then led to the exter-
mination camps? The essence of racism is an a priori exclusion of a group of
individuals from the domain of democratic communication. There is no
question of discussing and possibly rejecting the ideas of the members of a
given community: Before any expression of opinion, there is censorship (this
is of course an understatement in the context of racism), an exclusionary
behavior based on the color of the skin or any selected “racial” trait; the
so-called racial determination silences the people who are the object of the
stigmatizing attitude. The case of the Jews is of course distinctive: Blacks
were discriminated against, in the history of the United States, on a racial
basis, whereas Judaism is a religion, or a way of life, a tradition, a relatively
vague allegiance, or even simply the object of a personal choice. There are
many Jews who, quite normally, vehemently criticize the Jewish religion,
or at least its orthodox forms. But since the nineteenth century, the fantasy of
anti-Semites made Judaism a “racial” category, which provoked exclusion
and even extermination of people who, sometimes, had lost all cultural link
with the Jewish tradition. It is essentially for that reason that anti-Semitic
speech can be considered racist, and does not therefore belong to the realm
of the perfectly legitimate critique of religious (or other) ideas. In such a
context of a priori exclusion, one can certainly justify the repression of the
discourse (of course, with all the guarantees attached to the rule of law):
Here there is no communication of opinions at all, but rather an a priori re-
jection of the other, a dogmatic rejection of any discussion with the excluded,
in short a fundamental contempt for the humanist principle of universality.
This is finally the reason why the Jersild judgment (September 23, 1994),
delivered by the European Court of Human Rights, is also very disturbing:
Mr. Jersild is a journalist on Danish radio and television. He allowed very
brutal racist speech to be expressed in a broadcast and was condemned by a
tribunal on the basis of an anti-racist statute. The Court considered the
sanction to be disproportionate because the journalist had not himself made
racist remarks. But this is very debatable, because the journalist had taken
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246 Guy Haarscher

the entire responsibility for the broadcast of the “discussion.” So the Jersild
judgment seems to be too protective of abuses of freedom of expression (it
seems—at least partially—to justify the attitude of the journalist and to
condemn only the young racist people who directly spoke in a racist way),
while the Otto-Preminger judgment is not protective enough (it justifies the
repression of blasphemy, that is of ideas). Such inversions of perspective
could threaten the system of protection of human rights, which has been
patiently built by the Commission and the Court in Strasbourg. Two unprin-
cipled decisions concerning the tolerance of the “intolerant” might signal a
weakening of the vigilance of the judges, where basic liberties are at stake.

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Belgium

References
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