deliberative toleration

Deliberative TolerationAuthor(s): James BohmanSource: Political Theory, Vol. 31, No. 6 (Dec., 2003), pp. 757-779Published by: Sage Publications, Inc.Stable URL: http://www.jstor.org/stable/3595711 .Accessed: 13/06/2011 03:37

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EXPLOR TIONS OF DELIBERATIVE DEMOCRACY

DELIBERATIVE TOLERATION

JAMES BOBMAN Saint Louis University

Political liberals now defend what Rawls calls the "inclusive view" of public reason with the appropriate ideal of reasonable pluralism. Against the application of such a liberal conception of toleration to deliberative democracy ';the open view of toleration is with no constraints " is the only regime of toleration that can be democratically justified. Recent debates about the public or nonpublic character of religious reasons provide a good test case and show why liberal deliberative theories are intolerant andfail to live up to democratic obligations to provide justifications to all members of the deliberative community. ln a delaberative democracy, accommodations to religious minorities must be based on transformations in the current reflective equilibrium among the norms that make up the complex democratic ideal. This is not merely a conceptual enterprise of commensuration, since the needforany such transformation in standards of justification is due to changes in the nature of the polity itself; changes that in turn modify its regime of toleration.

Keywords: deliberative democracy, toleration, public reason, liberalism

Any feasible ideal of democracy must face the unavoidable social fact that the citizenry of a modern polity is heterogeneous along a number of intersecting dimensions, including race, class, religion, and culture. If that ideal is also deliberative and thus requires that citizens commit themselves to making decisions according to reasons they believe are public, then such diversity raises the possibility of deep and potentially irresolvable conflicts. When conflicts do emerge, deliberative democracy requires that citizens have equal standing and influence in the process that shapes their resolution. In the circumstances of "deep" pluralism (that is, of pluralism along a number of overlapping and intersecting dimensions), toleration would seem to be both part of the ideal of public reason and an important virtue for citizens to

POLITICAL THEORY, Vol. 31 No 6, December 2003 757-779 DOI: 10.1177/0090591703252379 O 2003 Sage Publications

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exercise and for institutions to secure and respect. Yet, deliberation also demands more of citizens than the silent toleration of reasons and attitudes that they abhor, especially if they accept that an important goal of public deliberation is to find the best possible, mutually acceptable solution to a problem or conflict. Because deliberation demands the critical engagement of citizens with each other, toleration in the sense of noninterference is too minimal for cooperative and yet engaged deliberation. When exercised by a majority, it may even be undemocratic. How can deliberation across differences be both tolerant and democratic? That is the task of a deliberative theory of tolerance.

It is now commonplace to distinguish "negative" or "weak" toleration from "positive" or "strong" toleration, and certainly toleration in a deliberative democracy would have to be of the latter sort. Amy Gutmann goes beyond "mere" toleration by distinguishing toleration from respect, where the latter performs the proper, positive normative role that some ascribe to positive toleration. The difference is one of scope. Toleration extends to all views that stop short of threat and harm, while respect is "far more discrimi- nating," extending only to those views that we may recognize as "reflecting a moral point of view."1 However, in sufficiently diverse polities it is just such discriminations that may be matters for deliberation. For this reason, participants in a deliberative democracy should invert Gutmann's distinction. They ought to consider the attitude of respect as part of toleration, while at the same time extending the scope of toleration to any point of view of those citizens with whom they engage in joint deliberation.

If we regard the persons whom we tolerate as citizens, then we must as such also regard them as entitled to put forth reasons that are valuable from their perspective. If we are to engage in deliberation with those with whom we disagree as citizens, our deliberative procedures require a "regime of toleration," that is, some set of social arrangements whose purpose is "to incorporate difference, coexist with it, allow it a share of social space."2 As Walzer points out, the success of any nonperfectionist regime of toleration demands neither that all participants share one form of the virtue of toleration nor that they stand at the same point on a continuum of tolerant attitudes. Some citizens will be less tolerant than others, perhaps even intolerant. My goal here is to establish the outlines of a deliberative regime of toleration, one that adds the reflexive feature of sharing a social space for judgment and yet also being able to challenge the limits and discriminations that inevitably become a source of conflict and disagreement in diverse societies. Given the fact of pervasive and sometimes deep disagreements that do not disappear even with respectful accommodation, toleration is a necessary component of any feasible conception of deliberation. Given that in a democracy there may be legiti-

Bohman / DELIBERATIVE TOLERATION 759

mate conflicts over the ideal of toleration itself, I argue democratic deliberation requires taking the next step beyond Rawls's "inclusive view" to a defensible version of what he derisively calls "the open view with no constraints."3 Only then is a regime of toleration democratically legitimate.

My argument for this strong conclusion has four steps. First, I distinguish between "old" and "new" pluralism, where the new pluralism poses the problem of "deep" conflicts in which intersecting dimensions and overlapping domains of social and cultural diversity become salient. Second, a positive conception of deliberative toleration shifts the object of toleration from attitudes to structures of communication. Toleration in deliberation maintains communication among citizens even in cases of deep conflicts. Third, I use recent debates about the public or nonpublic character of religious reasons as a test case and show why liberal deliberative theories are intolerant and fail to live up to democratic obligations to provide justifications to all members of the deliberative community. Finally, I consider standards for when accommodation to religious minorities is or is not necessary. Such accommodations must be based on transformations in the current reflective equilibrium among the norms that make up the complex ideal of a deliberative democracy. This is not merely a conceptual enterprise, since the need for such a transformation in standards of justification are due to changes in the nature of the polity itself, changes which in turn modify its regime of toleration.

PLURALISM OLD AND NEW

The need for toleration in any modern polity, whether democratic or not, emerges from general facts of modem societies, in particular "the fact of pluralism." Just how this fact is characterized has much to do with the contours of a theory of toleration, particularly in dealing with the nature and scope of toleration. For Rawls, the fact of pluralism is cultural and simply consists of the diversity of moral doctrines in modem societies, a permanent feature of modern society that is directly relevant to political order because its conditions "profoundly affect the requirements of a workable conception of justice."4 Such facts are permanent, in that modem institutions and ideals devel- oped after the Wars of Religion, including constitutional democracy and freedom of expression, promote rather than inhibit the development of further pluralism. This fact of pluralism alters how we are to think of the feasi- bility of an ideal of political justice under the conditions of pluralism. In this section I want to develop an alternative account of the need for toleration using examples of intersecting or "deep conflicts" that characterize a new threshold of diversity that is no longer captured by the model of religious


conflict. While they may often be the stuff of everyday politics, challenges to principles of deliberation in extremely diverse societies crosscutting and thus "deep" conflicts challenge the deliberative resources of even an inclusive democratic community.

The defining historical moment of the liberal regime of toleration is the emergence of religious pluralism and the distinctive zero-sum character of religious conflict within a particular political community. With the emergence of genuinely multicultural and even global polities, religion has lost its central place and become only one aspect of pluralism among many. It has at the same time taken on increasing significance between societies, exacer- bated today by the unprecedented migration of peoples from a variety of religious cultures and traditional societies, the declining power of states, and the rise of religious fundamentalism throughout the world. In light of this historical difference between the newer and older situations of religious toleration, it is now important to disaggregate the fact of pluralism in two ways if we are to make sense of the need for a new regime of toleration: pluralism now needs to be distinguished according to its aspects and dimensions. These distinc- tions will in turn suggest further differences in types and levels of conflict relevant for deliberation. Unlike religious pluralism, different groups and indi- viduals experience such deep pluralism in very different ways, and this fact requires wider toleration in deliberative practices.

Under contemporary social conditions, the fact of pluralism has a number of aspects having to do with different sorts of diversity. Such aspects can be defined along several axes: cultural, social, and epistemic diversity. Each aspect of diversity can be measured along various deliberative dimensions: in terms of values, opinions, and perspectives. These roughly correspond to the main aspects of diversity: diversity in terms of basic moral or political norms (including conceptions of the common good), in terms of different opinions (including beliefs about the way in which beliefs are justified), and in terms of the perspectives afforded by different social positions (primarily emerging with the range and type of experience of one's society). Divergence in values, opinions, and perspectives can be quite wide, and in this way produce conflicts. Taken singly, however, such divergences need not be "deep." A conflict is deep only if it occurs along a number of overlapping dimensions. It is these deep and overlapping conflicts that best reveal the scope of toleration in pluralist societies, since democracy in general and deliberative democracy in particular offer ways of settling differences of value and opinion in ways that make possible solutions that everyone could reasonably accept. As they are usually interpreted, democratic principles such as equality or publicity may be appealed to for settling any number of disputes along one dimension. Appeals to free exercise of religious liberty may, for example, seek to limit


the scope of such conflicts by limiting majority rule to mutually grant freedom in ways that everyone could accept.

Conflicts of opinion are settled in fairly standard ways, using recognized procedures and assumptions. In order to promote epistemic values, these procedures leave wide disagreements in place. In practices of inquiry, diversity of true and false opinion is instrumentally valuable for Mill's aim of "having the truth win out in the marketplace of ideas." But epistemic diversity also has a negative side that produces potential conflicts when it overlaps with other aspects of the fact of pluralism, such as the plurality of values. Epistemic diversity is valuable in the Millian sense only in light of shared commitments to procedures and practices of evidence. In Christian Science refusal cases or disputes about evolution in schools, the conflict is not along a single dimension but involves overlapping disagreements of values and opinions (especially beliefs about how to settle differences of opinion). The diversity of values alone is not problematic, in light of the diverse commitments internal to democracy itself. For example, certain rights and liberties may define the scope of reasonable disagreement about values, limiting the degree to which one group may impose its values on others and thereby restrict their freedom. Such solutions become problematic when the value of equal liberty does not fully accommodate other moral values such as cultural self-determination (in terms of which some forms of democracy itself are seen as oppressive) or epistemic values that see little worth in requirements of publicity (as in the case of religious fundamentalism). When the accommodation of such differences is the topic of deliberation, as is the case in education policy, for example, noninterference is not a feasible democratic solution. Toleration as noninterference is democratically self-defeating in cases in which the regime of toleration is itself the topic of deliberation, the very regime that aims to make it possible for all to participate effectively in decisions about its nature and scope.

Considered in light of the problem of deep conflicts, a democratic pluralism might also seem to be self-defeating. On the one hand, democracy seems to be directly challenged by pluralism, since it seems to be a way of settling conflicts along a single dimension according to the single and perhaps abstract aspect of their political significance. On the other hand, democracy seems to directly challenge pluralism by pointing out its possible limits. One way out of this paradox is to eliminate those alternatives that challenge the principles of a democratic polity from the domain of public deliberation. Because such challenges are ipso facto "unreasonable" and as such can be excluded from deliberation, it is hard to see how these criteria are consistent with the "inclusive view" that Rawls now wishes to profess. While this solution is not obviously self-defeating, it does not, as Rawls argues, solve the


problem by analogy to religious toleration by making deep disagreement permanent. Given deep conflict, it is not possible to exclude such challenges as unreasonable, since the fact of pluralism now demands that conflicts be settled by public deliberation on the essentials of democracy themselves. Against Rawls and others, the deliberative regime of toleration requires that the "unreasonable" are owed a justification when they challenge the regime itself. Such conflicts seem less trenchant once the goal of deliberation in a tolerant democracy is not to resolve disagreements into consensus, but rather to maintain ongoing public communication and egalitarian social relations. In the case of deep conflicts, toleration can be put on firmer democratic grounds by shifting its object from beliefs to the structures of communication and from reasons to perspectives.

TOLERATION, DEMOCRACY, AND COMMUNICATION

When is deliberative toleration needed? In a democracy, tolerance is exercised in resolving conflicts and in making disagreements fruitful. Aban- doning toleration as a civic virtue and an ideal would seem to belie the fact of pervasive and deep disagreement of just this sort that would be part of deliberation on many divisive issues. It would seem then that toleration in deliberation requires that citizens adopt some impartial or neutral stance and avoid directly confronting each other on the most contentious issues. At the same time, it is also equally unlikely that citizens would be able to deliberate about the sources of their conflicts and disagreements at all if toleration entails, as Rawls holds, that "central to the idea of public reason is that it neither criticizes nor attacks any comprehensive doctrine, religious or non-religious."5 Rawls goes on to offer the following exception: criticism of any such doctrine is permissible "insofar as it is incompatible with the essentials of public reason and a democratic polity." Moreover, in the "wider background culture of civil society" such doctrines may be criticized without the restrictions of public reason.6 That is, given that when we deliberate we inevitably consider fundamental political questions of justice, the ideal of public reason allows a "proviso" that we may "introduce into political discussion at any time our comprehensive doctrine, religious or nonreligious, provided that, in due course, we give properly public reasons to support the principles and policies that our comprehensive doctrine is said to support."7

Proponents of deliberative democracy often find Rawls's restrictions either too weak or too strong. Given sufficiently deep pluralism, the distinction between public justification and the background culture might be too strong to sustain. Others see the proviso as too weak, since public justifica-


tion simply entails agreeing to the limits of reciprocity, so that any further accommodation in moral disagreement requires the shared acceptance of such a principle in order to earn mutual moral respect.8 Still others argue that these disagreements can be avoided by appealing to independent epistemic standards rather than moral standards.9 Given that the outcome of a free and open procedure may be wrong, it is often thought that the best way to deal with possible error is to impose ex ante limits on possible reasons or ex post constraints on outcomes. The discussion also often turns on which ideational contents are the relevant objects of deliberation and which ought to be included: the culture of others, their moral claims, or various true or false assertions, and so on. In debates about multiculturalism and deliberation, such differences are traced to incommensurable conceptual frameworks.10

As opposed to this ideational approach to deep differences that are mani- fested in deliberation, a more practical approach is to see that attitudes of toleration have various potential objects depending on different practices. At the most abstract moral level, toleration ought to be extended to all persons as bearers of human rights, including rights of self-expression. This may be expressed in duties not to interfere with or to prohibit such expression. But these negative, perfect duties may not be the most appropriate level of description for democratic contexts in which citizens are already engaged in practices of deliberation. The language of rights, permissions, and prohibi- tions is not sufficient, in that we do not violate the moral and legal rights of others to self-expression when we fail to consider their reasons seriously in deliberation. In order to capture the obligations of public deliberation, Onora O'Neill correctly argues that it is communication itself that is "the proper object of toleration" in a democracy.11 In deliberative settings, citizens manifest their equality with each other not only by refraining from interference with their acts of expression; they also do so by sustaining the conditions for communication. How do they do this? They do so reflexively, in their communication with each other in public deliberation and in their attitudes towards others as participants in a public process.12 This concern of participants with the publicity of communication has special importance when the inclusive character of both discussion and reason giving are themselves the special object of deliberation. Toleration in this sense is at minimum discur- sive openness.

If publicity is the more general norm and attitude of concern for the structures and processes of communication in a democracy, then toleration demands that citizens be concerned with the structural features of public debate and discussion through which deliberation takes place. Two aspects of democratic communication are the more specific objects of toleration. First, toleration in a weak sense is directed towards the reasons that others offer in


communication: they must be taken seriously and not disqualified ex ante (either in principle or in fact). Toleration is needed in the public process aimed at discovering whether a reason is a publicly acceptable one or not. Publicity is thus historical rather than formal. If the public character of a reason is better seen as an outcome of an actual process of discussion, then it is not necessarily significant, for example, whether the reason is religious or secular.13 When communicating with an audience as heterogeneous as the citizens of a large and pluralistic polity, such disqualification of a type of reason threatens the public character of political communication in which reasons are considered on their own merits. However, taking a reason seriously does not entail that we refrain from criticizing it (even if we think it is reasonable in Rawls's sense). Indeed, the opposite is true: no reason can be expected to receive uptake by others unless it passes their critical scrutiny; that is, a criticism must be addressed to them as one that they could accept. Being tolerant thus does not exclude criticism; it in fact demands it, since without it others will not form the expectation that their reasons as publicly expressed shaped the course of the debate. Toleration is directed both towards policies that might accommodate a minority view as well as towards the minority's reasons put forward in deliberation. This inclusion of other citizens' salient reasons, such as they are, is a means toward preserving the public character of communication and the inclusive character of the democratic community of citizens.

This brings us to the second feature of communication that is the object of toleration. Taking reasons seriously is not all that deliberation requires. Tol- eration in the strong sense does not extend directly to the reasons as such but to the perspectives that inform these reasons and give them their cogency. Before a reason can first be seen as a reason and then potentially as one that passes the critical scrutiny of all citizens, the perspectives of others and the experiences that inform them must be recognized as legitimate; in light of this inclusion of their perspective, groups recognize themselves as contribut- ing to democratic decisions. Given the variety of topics of deliberation, it is not possible to privilege certain types of perspectives over others, as Iris Young does when she argues that it is social perspectives defined by objective structural positions in a society that are the object of deliberative inclusion.14 The precise boundaries of such a concept are unclear: do patients, for example, constitute a social-structural group for the purpose of deliberating about public policies about AIDS? More centrally to deliberative toleration, it is often the case that cultural or religious groups may seek to challenge the current regime of toleration when deliberating about any number of issues from education to legal exemptions. Here the point of inclusion is not to find the single correct or authentic perspective for every religion or cultural group,


but rather to show how differences in perspective may open up deliberation in the regime to correction.

The toleration of others' perspectives is then part of recognizing them as equal members of a political community, where membership is recognized despite the potential for persistent disagreements and deep conflicts. As Scanlon puts it, what toleration expresses is recognition of common membership that is deeper than these conflicts, recognition of others as "just as entitled as we are to contribute to the definition of our society."15 In light of this democratic entitlement, a regime of toleration is illegitimate if it fails to honor this obligation, denies such an entitlement by falsely generalizing the perspective of the tolerating group, and denies this entitlement to the tolerated group. Toleration in this sense is a property of a regime; a regime of toleration is just if it permits citizens to fulfill their obligations to provide justifications to all that respect the entitlement of each to contribute to the definition of society. The toleration of perspectives is not only a matter of first-order communication, but of the second-order properties of the regime that aim at protecting the integrity of communication and deliberation. Given this distinction between reasons and perspectives, Young and others are surely correct that reasoned argumentation by itself is often insufficient to communi- cate how reasons are informed by experiences had from a perspective.16 Nonetheless, focusing on the competing virtues of argumentative and rhetor- ical speech or attempting to identify a class of special perspectives falls short of the goal of a deliberative regime: making all forms of communication properly responsive and tolerant. 17 The publicity of a reason in a deliberative regime of toleration does not then depend on any formal syntactic or seman- tic property of the reason itself.

In the next section, I take up a distinctly deliberative argument for the exclusion of religious reasons in order to clarify the difference between a deliberative and a liberal regime of toleration. This discussion permits me to raise the traditional "paradoxes of toleration": that practices of toleration may themselves be intolerant. Far from undermining deliberative toleration, this sort of claim against a regime of toleration makes perfect sense in a deliberative democracy as an important topic of public communication, testing, and criticism. The admissibility or prohibition of religious versus nonreligious reasons into public deliberation is only one of many possible examples, although it does reveal clear differences between a liberal and deliberative regime of toleration. Contrary to the dominant view, a deliberative regime need not be liberal and indeed should not be liberal in cases when a democratic resolution to deep conflicts over a liberal regime of toleration is required.


TOLERATION: LIBERAL OR DELIBERATIVE?

As the product of the specific historical situation of religious conflict, liberal toleration is increasingly inadequate to deal with pluralism along more than one dimension at a time. Depending on the target, critics argue that liberalism is either too thin or too thick. For some critics, liberal toleration is purely negative, having to do with prohibiting arbitrary interference with others rather than with engaging them morally. These critics argue that thin liberal neutrality leads to a "dynamic of toleration and oppression, sustained by the morally minimal and instrumental nature of liberal toleration."18 Instead, a positive or "liberating" conception of toleration is not based on discovering the functional requirements for stability in a democracy from some observer's perspective, but rather upon taking up the perspective of the citizen who seeks redress from forms of subordination and exclusion that inhibit her ability to give effective voice to her dissent.19 Other critics take the oppos- ing side, seeing liberal toleration as based on the culturally specific conception of autonomy and thus as imposing liberal norms and a comprehensive moral doctrine on those deemed intolerant.20 A deliberative conception is not identical with the liberal one in that it rejects toleration based on neutrality and autonomy. But like the liberal conception, it asks how it is that toleration and its limits could be justified to free and equal citizens, each from his or her own point of view.

It has historically been the case that those who are tolerated, rather than those who are tolerating and exercising political power, more often challenge regimes of toleration. For example, current challenges to the liberal regime of toleration now in place come from religious groups, which from the liberal perspective seem to be merely "the recurrence of sectarian and cultic religi- osity and of fundamentalist theologies."21 Contrary to the liberal view, however, religious challenges of this sort could very well be legitimate in a deliberative context. More often than not, it would take the form of the contestation of certain regulative principles that guide deliberation and its regime of toleration.

Before discussing the deliberative alternative, consider Gutmann and Thompson's application of the principle of reciprocity to a particular case, the controversy over reading textbooks in public schools as decided by the federal court in Mozert v. Hawkins County Board of Education.22 As one of many legal challenges by Christian fundamentalists to the use of books that they believe teach values that directly conflict with their deeply held religious convictions, the Mozert parents objected to many of the selections in the readers used in Hawkins County elementary schools. Objectionable readings included a story in which a wife refuses to do housework, the Hindu parable


of the elephant and the blind men, sympathetic portrayals of nonstandard families, stories that they held presented non-Christian religions and their holidays as equally valuable, and so on.23 According to Gutmann and Thompson, "The parents' reasoning appeals to values that can and should be rejected by citizens of a pluralist society committed to protecting the basic liberties and opportunities of all citizens."24 Such values are illiberal and intolerant.

My objections to this argument do not require that the parents be seen as they see themselves, as the victims of religious persecution. It may well be that the parents' reasons ought to be rejected by more tolerant citizens in public deliberation, but it is not the case that on a strict criterion their appeal is "unreasonable" or that their reasons are "nonreciprocal." Whatever the parent's own virtues or lack of them, the remedy that they sought was only an exemption rather than a change in school policy imposed on others.25 It is not enough just to show that the parents in this case were not literally unreasonable. Even if we grant for the sake of argument that religious reasons as such are "nonreciprocal" or "unreasonable," the principle of reciprocity begins to look very much like a substantive and specifically liberal conception of autonomy. Rather than guide deliberation, such principles simply exclude all religious reasons tout court, even when they are the condition for meaningful participation by some parties in discussion of the fundamental issues at hand. In this case, the parties cannot even formulate the objection to the practice in question apart from their full religious convictions.

This example raises several important issues. Granted that democratic discussion of such an issue will inevitably take place under some constraints, what constraints are both democracy and deliberation promoting? Is it reasonable to expect that citizens (especially religious ones) rationally accept such ex ante constraints as reciprocity as conditions for participation in public deliberation? When might citizens think it necessary to abandon such constraints? Reciprocity cannot be invoked as the overriding constraint if the issue is whether a policy that is part of the regime of toleration treats all parties in the deliberation as equal members of the same deliberative community.

Here the question is rather whether or not our practices of reason giving live up to the full range of democratic commitments. Joshua Cohen makes the same point about the limits of the constraint of reasonableness:

If one accepts the democratic process, agreeing that adults are, more or less without exception, to have access to it, then one cannot accept as a reason within that same process that some are worth less than others or that the interests of one group are to count for less than others.26


If the reasons of some are not to be worth less than others and if we accept that reasonableness and reciprocity as norms of justification are constrained by such larger democratic requirements, then the parents in Hawkins County, even if unreasonable in Rawls's sense, are owed a justification for the practice they are challenging. The obligation to offer a justification is especially salient in cases in which political power is exercised through legally enforce- able collective decisions. Not to offer a justification even to the unreasonable is to exclude them from the community of judgment and thus to violate the democratic commitments to political egalitarianism and nondomination.27 Thus, even if we may say that the parents' doctrine was unreasonable or nonreciprocal or even if certain citizens do not themselves engage in tolerant perspective taking, these facts in no way undermine their reflexive challenge. A second-order challenge of the sort they are making is legitimate only if it shows that the regime of toleration as practiced is indeed exclusionary, as when public reasons are considered secular or when religious reasons have no worth in the context of democratic deliberation. Gutmann and Thomp- son's substantive criterion of reciprocity is exclusionary in just this sense, to the extent that it violates the principle of political egalitarianism.

This criticism appeals to two considerations in rejecting the use of any single moral or epistemic criterion as the basis for determinate limits for deliberative toleration. The first reason is that democracy is a complex ideal that cannot be reduced to a commitment to any particular principle as more basic for deciding the scope or outcome of deliberation. Those charged with violating the principle of reciprocity may appeal to any number of considerations that are just as central to democratic deliberation, including freedom, equality, and publicity. Given the fact of pluralism and the possibility of deep conflict, these principles need not be given a univocal interpretation. Second, those who object to any given resolution of a deep conflict may respond by appealing to the deeper democratic commitments that it may violate. This is the crucial move of a democratic regime of toleration that Gutmann and Thompson block by appeal to some lexical ordering of moral principles that gives priority to reciprocity or reasonableness over other principles of equality or freedom. The move is to raise the issue to a dispute among democratic principles and thus no longer to remove deep conflicts as intolerable, but rather to place them in the heart of democratic debate.

When excluded from the community of judgment, citizens can appeal to democratic principles to urge that the regime be revised. Such exclusions cannot be justified to them as participants in public deliberation, all of whom as citizens are owed a justification whether they are reasonable or not. According to this argument, then, toleration in a deliberative democracy is based on the commitment to the principle of political egalitarianism: that is,


the equal availability of or access to political influence for all citizens over all decisions that affect them.28 How might we think of the Mozert case given a different account of the fact of pluralism and reflexive toleration based on political egalitarianism? The solution that takes seriously the parents' concerns would seek some form of accommodation consistent with the deeper democratic principles on which the parent's challenge implicitly relies. School officials could seek a principled compromise either in terms of an exemption (as was the policy in many schools in this district) or by creating a list of mutually acceptable books (as was offered by the parents in the case).29 While these parents continue to participate in a wider set of economic, social, and political practices, groups of "partial citizens" like the Amish or indigenous peoples seek less cooperation with the wider society and warrant the widest possible accommodation on this issue (as the Court has already decided in many cases).30 It is not unreasonable for them to adopt a stance toward the terms of social cooperation that they do not believe others will hold. Such toleration does not, as Gutmann and Thompson fear, "leave social divisions intact" and fail to provide "a positive basis for resolving moral disagreement in the future."31 The positive basis for resolving these deep conflicts is a regime that does what the liberal regime cannot do: regard all parties as members of the same open and inclusive deliberative community.

The tension between liberalism and democracy is not new. A defender of extending liberal toleration to deliberative contexts may well turn this argument against the open view. Liberal toleration, it might be thought, defends diversity by not tolerating the intolerant, as exhibited in Mozert parents' desire not to allow their children even to be exposed to literature that might portray men and women as equals or non-Christian religions as having some value. Exempting children from these requirements harms the polity as a whole and undermines the common purpose of liberal education. The "multicultural temptation" is "to suppose that it is always right to adopt a posture of accommodation" in the face of a prima facie claim that some policy is biased against a culture or imposes burdens upon it.32 However, the fact that the parents argued for an exemption based on nonliberal and even nondemocratic reasons does not justify school officials in not seeking to find the positive basis for resolving the disagreement by mutual accommodation.33 Even if we do not accept their reasons, they are owed a justification that makes manifest their political equality as fellow citizens. The defender of deliberative toleration can take up their challenge as legitimate by pointing out that there are different conceptions of diversity at stake in this debate.34 When considered from an institutional perspective, public schools would certainly be less rather than more diverse if fundamentalist parents and many others are not accommodated for differences of beliefs that are relevant for reason-giving


practices of deliberation. In this way, democratic education should more closely mirror the requirements of the deliberative process itself. The issue is not the intrinsic value of diversity as such, but rather how diversity is understood in a regime of toleration that more clearly expresses democratic values of equality, freedom, and publicity.

The conception of diversity guiding deliberation about the limits of toleration must then be multidimensional and aware of overlapping differences in the case of deep conflict. This is true not only given the fact of the "new pluralism," but also for normative reasons having to do with maintaining the recursive and self-corrective properties of public reason needed for its improvement and self-testing by heterogeneous citizens. Indeed, public reason can improve deliberation and reliably perform its role of solving problems and conflicts "only when it is itself subject to revision and correction in light of public standards that are open, accessible and available to all."35 If the limits of toleration are drawn so tightly as to make this impossible, then democracy's capacity for self-correction operates as a vicious rather than a virtuous circle. But what are the public standards for such second-order revi- sions? I argue that these standards must be democratic standards if we are to solve the paradox of toleration after we have permitted the reflexive challenge. These challenges ask citizens to initiate a rethinking of the reflective equilibrium among the many principles that make up the complex democratic ideal.

DELIBERATIVE DEMOCRACY AND THE PARADOX OF TOLERATION

With these resources it is possible to solve another potential paradox of toleration. It is not only equal membership, but also the regulative ideal of an inclusive democratic community that provides the basis for tolerating those whom we judge to be wrong or immoral.36 But this ideal is not the actual political community in which the tolerated and the tolerator may stand in a social relationship of inequality or subordination. Rather than raise the standards of democracy so high that only a fully egalitarian society would be democratic, a democratic community characterized by social inequalities would have a just regime of toleration to the extent that it first of all promotes the proper attitudes of free and open communication and then, second, orga- nizes a framework for deliberation that makes possible the effective participation of all. Given these normative requirements, the temptation is to hold certain aspects of deliberation as fixed and thus to regard them as the necessary limits of toleration. Rawls and Habermas succumb to this temptation in


different ways.37 If deliberation is to be both dynamic and pluralist, however, it is better to appeal to the regulative ideal of an inclusive community that both sets the limits on deliberative toleration and opens them to democratic challenge. When such challenges are successful, they mark changes in the nature of the deliberative community itself and of the differences relevant to its regime of toleration.

Next I want to look at the process of deliberation that is initiated by the acceptance of a claim that the current regime of toleration is undemocratic. Indeed, my argument implies that views that set determinate limits on toleration are paradoxical from the point of view of democracy. They either subordinate democracy to some moral content of toleration and its attitudes, or they subordinate the complex possibilities of justification in democracy to one value or principle that they consider "more fundamental," "basic," or "prior," for any number of reasons: as an independent standard, the guarantor of the conditions of deliberation or as a necessary condition for a public justification that all could accept. Given the new form of pluralism described above, no such principle could be immune to reflexive challenge. At the very least, if traditional religious communities are to be included there are no noncontestable norms that guide deliberation across liberal and nonliberal communities. Committing any such framework to a thicker and more specific philosophical interpretation has the danger not only of making deliberation irrelevant, but also of intolerance, as can be seen in the common liberal charge made by Guttman and Thompson that religious reasons are "nonpublic" and "nonreciprocal." Any reflexive challenge to the normative framework for deliberation asks citizens to rethink the very nature of the democracy in which they live, and for that reason multiculturalism often has led to constitutional debates and reform. When considering such challenges, the deliberative interpretation of democratic norms as enabling conditions for resolving conflicts needs to be given prima facie priority over the liberal interpretation of norms as constraints and presuppositions. As the membership of the polity grows more diverse, an important feature of public deliberation will be the reflexive critique of the very normative framework that made deliberation possible in the first place. If this sort of revision is not possible, then deliberative democracy loses its capacity to accommodate pluralism and collapses into either a comprehensive or a political liberalism.

In what follows, I first consider a pluralist form of democratic justification as a decidedly non-Rawlsian, dynamic process of reflective equilibrium as the method of moral learning that occurs through the admission of new perspectives on the deliberative regime of toleration and then consider an important objection to it.


How might a form of justification work that is accommodating of pluralism, yet also guided by normative standards? I have argued that if communication is the proper object of deliberative toleration, then it is perspectives rather than reasons that must be tolerated in democratic discussion and debate. The appropriate form of justification under the conditions of deep conflict would be pluralist in the sense of allowing the widest possible range of perspectives to inform and influence the deliberation. It could do so only by regarding democracy as a complex ideal, that in any moment of legitimate challenge ought to seek reflective equilibrium among its competing dimensions. In the Mozert case considered above, the requirements of reciprocity or publicity that excluded the parents' perspective could be challenged by the demand for political equality, that all have equal entitlement to participation in the definition of the normative framework in which such decisions are made. Similarly, cultural minorities may challenge the regime of toleration because they cannot accept it without subordination; that is, they may challenge some particular institutional interpretation of its requirements of publicity in light of freedom from domination. Thus, in cases of pluralism citizens participating in second-order debates may appeal to a variety of democratic values and norms to demand accommodation, including publicity, equality, and freedom.

The salient feature of pluralist justification is not only that there is no single form of justification or set of reasons that can be appealed to as democratic. In addition, these components of the ideal of democracy are often opposed to each other, and in that way the appeal to various democratic norms and principles may cut across the various axes of a conflict. Hard cases of conflicts of interest are formulated and adjudicated in this way. The famil- iar conflicts between freedom and equality occur when the interests involved are not identical, as when freedom to associate comes into conflict with equal treatment in cases of conflicts over memberships in various clubs. It would be odd indeed if deliberation about deep conflicts of principle did not have a similar or even wider set of normative resources at its disposal for finding ways to accommodate claims to injustice brought about through democratic practices. The ideal of justification that guides the deliberative process of reflective equilibrium is keeping inclusive and multiperspectival practices of communication (that are the object of toleration) consistent with a complex and evolving democratic ideal, the outcome of which would be tested from all points of view. The achievement of practices that permit multiple perspectives allows for practical, moral, and epistemic improvement to the extent that testing and innovation is a matter of the interplay of different and sometimes new perspectives. Constitutional reform can be seen as just such a learning process by which the democratic ideal changes as the inclusion of


more perspectives shifts the dynamic reflective equilibrium of the deliberative community. The civil rights movement is an example of this process, which gave more weight to the principle of equal protection in legal and political deliberation as the polity became multiracial rather than segregated.

The defender of a more deontic and less pluralist form of deliberation might object that public reasons have justificatory force only if they possess the requisite generality and impartiality such that they are ones that everyone could accept. Certainly, the critic could argue, we do not know in advance which claims or group perspectives count as reasons. We do know that they will possess certain general structural features. As Seyla Benhabib has put it, "Reasons count as reasons because they could be defended as being in the best interests of all understood as equal moral and political beings." In discussing the example of the Supreme Court of Canada's admission of tribal stories to establish evidence for their land claims, she argues that "what lent legitimacy to the Canadian court's decision was precisely their recognition of a specific group's claims to be in the best interest of all Canadian citizens."38 Even if that were true, on my account, it would be incomplete. It would be true only because the Court exercised deliberative toleration and held that such a decision represented the best available reflective equilibrium of the competing democratic ideals at stake. Moreover, it is implausible to say that the interests of Canadians hold constant before and after the decision. After the decision Canada is a different, more multiperspectival polity, just as after Brown the United States became a multiracial polity that it was not before. In both cases, what counts as a reason and a justification has changed, precisely because the courts exercised deliberative toleration, shifted the reflective equilibrium of the practical understanding of its complex democratic ideal, and expanded the range of possible reasons and changed the understanding of what it meant to be treated as equal. Frank Michelman calls this the "full blast condition" for deliberation.39

Some challenges to toleration still evade this reflexive solution and thus fall outside of the deliberative ideal of toleration. Some tolerated groups may even ask not to be tolerated in the sense that they do not wish to be part of an inclusive community, as is the case for the Amish and many indigenous peoples. Here the appeal is to some other ideal, such as the recognition of their equal freedom to pursue their definition of their own society. Such groups are accommodated through the right not to be included in the common life of a community that they do not wish to have the entitlement to define. The exis- tence of such groups does not challenge the ideal of toleration but presents limits to its capacity to solve problems of difference in a highly heterogeneous society. These groups attempt to create a different sort of social relationship of nonsubordination outside of (rather than within) a democratic


society. By contrast, intolerant groups who seek more than accommodation cannot claim to offer a reflexive challenge, insofar as they can neither offer a justification by appeal to any democratic norms and values such as freedom or equality at all, nor participate in providing a new perspective in the process of dynamic reflective equilibrium concerning democratic ideals that might be the outcome of their challenge.

Since the purpose of the regime of toleration is precisely to protect the integrity of communication in the deliberative process in cases of deep conflict, it creates at least the potential for a more pluralistic community. In such a community, accommodation makes sense only as a deliberative response to the injustice in the communal spaces for practical judgment or to the viola- tion of democratic norms in institutional practices of inclusion. Given the full blast condition, the entitlement to alter the regime of toleration extends to all citizens, whether it is national minorities or ethnic immigrant groups who seek to enter the political life of the community as equals without subordination.40 On pain of violating norms of consistency and democracy, the same sort of entitlements and constitutional claims extend to religious groups as well. This does not deny that democracy is a common political project, but rather sees it as undergoing self-correction and continual self- transformation.

CONCLUSION: CHALLENGING TOLERATION, EXTENDING THE DELIBERATIVE COMMUNITY

The superiority of the deliberative over a liberal regime of toleration consists in providing feasible solutions to the main problem of deep pluralism: second-order challenges and overlapping and intersecting deep conflicts. In a deliberative democracy, debates about the basic principles of governance and shared political life belong on one end of the continuum of deliberative problem solving. Far from being avoided, appeals to fundamental principles are an everyday occurrence in a deliberative democracy, especially when pluralism produces conflicts along a number of dimensions (as is the case in debates about the wall of separation of church and state and the accommodation of religious minorities in schooling, the rights of immigrants, and other issues concerning the nature of the polity itself). Such debates can become pitched conflicts, whose constant recurrence indicates a lack of problem- solving capacity in the current deliberative framework. Spurred by persistent deep conflicts (and not merely everyday persistent disagreement), debates about the framework for deliberation and the ideal of democratic community can lead to a period of "constitutional politics" such as was the case in the


Reconstruction period and the New Deal in United States history when the deliberative framework of rights and powers had to shift to solve problems and conflicts.41 The regulative ideal of an inclusive political community of judgment guides deliberation about transforming the obligations and entitlements of citizenship.

Religious toleration has played a crucial role in the emergence of modem citizenship. It became the basis for a distinctly universal identity within the political community of a modem nation-state that united citizens across social and cultural differences. Both multiculturalism and cosmopolitanism challenge the adequacy of this particular interpretation of universal identity. Deliberative toleration looks at the problem of inclusion from the other way around. Precisely because of the successful inclusion of ever more citizens in a nonnaturalistic, nonculturally-based community of judgment, the conflicts inherent in deep pluralism recursively challenge the same institutional framework that made this inclusion possible. The emerging challenges to the liberal regime of toleration even in its expanded multicultural form are increasingly transnational, given the fact that global migration has spurred new levels of pluralism in liberal democratic societies. This migration will call into question the requirements of citizenship, as people no longer live their lives within the boundaries of a particular nation-state. Here we might consider the extent to which traditional liberal and republican conceptions can still provide the basis for mutual toleration among diverse citizens. As Rawls put it, liberal toleration applied in the international sphere "asks of other societies only what they can reasonably grant without submitting to a position of inferiority or domination."42 Given the fact of deep pluralism, cosmopolitanism now begins at home. It may well be that the deliberative framework in societies characterized by migration and deep pluralism will have to incorporate interactions among many different inclusive communities. The revival of the debate about religious identities in the public sphere is one more indication of the fact that democracies are no longer the expression of a single political subjectivity.

In such an emerging multiperspectival polity, intolerance is evidenced in the inability of citizens to raise vital and significant concerns in deliberation, in the exclusion of relevant reasons, and in the illicit and unspoken general- ization of the dominant or majority perspective. Deliberative toleration does not merely aim at mutually granted rights and immunities from interference, but at the ideal of a democratic community of deliberation and judgment. Guided by its practical orientation to successful public communication and the regulative ideal of an inclusive community, toleration becomes reflexive and thus both a means and an end for furthering democratization in a situation of undiminished pluralism. Toleration is thus the attitude of perspective


taking that makes such disagreements fruitful for deliberation, in that they are necessary to promote a richly complex ideal of democracy in large, diverse, and increasingly porous polities.

NOTES

1. Amy Gutmann, "Introduction," in Multiculturalism and the Politics of Recognition (Princeton, NJ: Princeton University Press, 1992), 22ff. For a similar distinction, see Monique Deveaux, Cultural Pluralism and Dilemmas of Justice (Ithaca, NY: Cornell University Press, 2000), chap. 3.

2. On the concept of a regime of toleration, see Michael Walzer, On Toleration (New Haven, CT: Yale University Press, 1997), 12.

3. John Rawls, "The Idea of Public Reason Revisited," in Collected Papers (Cambridge, MA: Harvard University Press, 1999), 601.

4. John Rawls, "The Idea of an Overlapping Consensus," in Collected Papers, 424. 5. John Rawls, "Idea of Public Reason Revisited," 574. 6. Rawls, Ibid., 576. 7. Rawls, Ibid., 144, also p. 152ff. 8. Jurgen Habermas, "Reconciliation through the Public Use of Reason," Journal of Philos-

ophy 3 (1995): 124. Habermas's criticisms of Rawls might be thought to push him toward an open view of deliberation similar to the one that I am defending here. Because he argues that a "liberal political culture" is an empirical precondition for democracy, however, his conception of toleration and the obligations of justification led him to a standard liberal conception of the limits of toleration.

9. On "the epistemic value of quantity," see David Estlund, "Political Quality," Social Phi- losophy and Policy 17 (2000): 144; his "epistemic difference principle" is formulated on p. 147. More input is valuable from the participants' perspective only if it increases the possibility of each perspective being heard. Increasing input could be democratically justified to the worst off only if it increases the number of perspectives in discussion. In order that the worst off (here the least effective in deliberation) may accept the epistemic difference principle, the relevant value is the diversity of perspectives rather than quantity.

10. See, for example, Jorge Valadez, Deliberative Democracy, Political Legitimacy and Self- Determination in Multicultural Societies (Boulder, CO: Westview, 2001), 3 1ff.

11. Onora O'Neill, "Practices of Toleration," in Democracy and the Mass Media, ed. J. Lichtenberg (Cambridge, UK: Cambridge University Press, 1990), 167.

12. On the variability of norms of publicity as related to their problem-solving capacity, see James Bohman, "Citizenship and Norms of Publicity: Wide Public Reason in Cosmopolitan Societies," Political Theory 27 (1999): 176-202.

13. Robert Audi has long identified public with secular reasons. See his initial article and sub- sequent ones thereafter, "The Separation of Church and State and the Obligations of Citizen- ship," Philosophy and Public Affairs (1989). For Rawls's criticisms of this view as well as his rejection of the use of the principle of reciprocity in Gutmann and Thompson, see "The Idea of Public Reason Revisited," 587ff.

14. Iris Young, Democracy and Inclusion (Oxford, UK: Oxford University Press, 2002), chap. 3.


15. T. M. Scanlon, "The Difficulty of Toleration," in Toleration: An Elusive Virtue, ed. David Heyd (Princeton, NJ: Princeton University Press, 1996), 231.

16. On a different way of making the distinction between reasons and perspectives, see Iris Young, "Difference as a Resource for Democratic Communication," in Deliberative Democ- racy: Essays on Reason and Politics, ed. J. Bohman and W. Rehg (Cambridge, MA: MIT Press, 1997). Young argues that the primary resource that such differences offer for democratic communication "is not a self-regarding identity or interest, but rather a perspective on the structures, relations, and events of a society" (pp. 393-94). This leads her to see perspectives as objectively determined by a group's place in the social structure.

17. John Dryzek, Deliberative Democracy and Beyond (Oxford, UK: Oxford University Press, 2002), 68. Dryzek argues that the simple claim that all forms of communication must be accommodated does not go far enough. Rather, all forms of communication must be tested for their coercive potential and their capacity to connect the particular to the general. I argue here that such testing makes sense as part of a democratic regime of deliberative toleration.

18. Barbara Herman, "Pluralism and Moral Judgment," in Toleration: An Elusive Virtue, 61; on "positive tolerance" as distinguished from the repressive character of purely negative toleration, see Herbert Marcuse, "Repressive Tolerance," in A Critique of Pure Tolerance (Boston: Beacon, 1965); specifically, a positive or liberating conception has for Marcuse an epistemic conception, since "the telos of toleration is truth" (p. 90). Marcuse's criticism of liberal toleration stresses that toleration need not be skeptically motivated. For an epistemic criticism directed at Rawls's idea of "toleration extended to philosophy," see David Estlund, "The Insularity of the Reasonable: Why Political Liberalism Must Admit the Truth," Ethics 108 (1998): 252-75. Estlund's criticism also relies on a reflexive argument, to the effect that political liberalism must admit the truth of its own view. This argument is insufficiently reflexive, however, because it does not make clear that the necessity of admitting truth is apparent only from the participants' point of view.

19. Marcuse, "Repressive Tolerance," 95. The "liberating" feature of democracy is not mere or "pure" toleration, but "the chance it gave to social dissent" to change circumstances.

20. See Rawls's criticism of arguments for liberal neutrality based on autonomy as a moral doctrine; for Rawls, liberalism as a moral doctrine itself "fails to satisfy the criterion of reciprocity." See John Rawls, Political Liberalism (New York: Columbia University Press, 1996), xliv- xlv, also p. 77ff. Autonomy-based liberalisms include Kymlicka's arguments for the basis of toleration and Gutmann and Thompson's use of reciprocity discussed below.

21. Michael Walzer, On Toleration, 71. 22. Just as he criticizes Kymlicka's autonomy-based argument for toleration, Rawls criti-

cizes Gutmann and Thompson's view of deliberative democracy for treating reciprocity as a substantive norm in the sense of a "comprehensive doctrine." See Rawls, "The Idea of Public Reason Revisited," 578.

23. For a detailed account of the practices of accommodation and the specific background to Mozert, see Stephen Bates, Battleground (New York: Poseidon, 1993). By far the fullest treatment of this case and its implications for liberal democracy is to be found in Stephen Macedo, Diversity and Distrust: Civic Education in a Multicultural Democracy (Cambridge, MA: Har- vard University Press, 2000), especially pt. 2.

24. Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge, MA: Harvard University Press, 1996), 65.

25. While he ultimately wants to reject the parents' claims, Macedo shows that it is not because they are unreasonable or nonreciprocal in their goals. See Diversity andDistrust, 160.

26. Joshua Cohen, "Procedure and Substance in Deliberative Democracy," in Democracy and Difference, ed. S. Benhabib (Princeton, NJ: Princeton University Press, 1996), 101. Note


that for Cohen this is a matter of freedom of expression, not a matter of entitlement to contribute to the common definition of a society. Freedom of expression permits religious reasons to be used in public discourse as first-person acts of testimony; this is a defense of toleration as based on rights to noninterference.

27. Erin Kelly and Lionel McPherson, "On Tolerating the Unreasonable," Journal of Politi- cal Philosophy 9 (2001): 38-55. However "strong" their conception of toleration, it leads Kelly and McPherson to the opposite conclusion from the one that I defend here: "Our position in favor of extending public justification to the unreasonable implies, however, that philosophical discussion in the public sphere should ideally be kept to a minimum" (p. 51). This is because they defend and extend a liberal notion of noninterference with clearly antideliberative consequences. Second, their argument in favor of extending justification to the unreasonable continues to hold that the norm of reasonableness is decisive in discussions of toleration. The proper conclusion is that since justification is owed to the reasonable and the unreasonable alike for exactly the same democratic reasons, judgments about reasonableness of the tolerated are simply irrelevant to the aims of toleration.

28. Views that endorse political egalitarianism as essential to deliberative democracy include Joshua Cohen, Thomas Christiano, Jack Knight and James Johnson, and others. See the essays in Deliberative Democracy: Essays on Reason and Politics, ed. J. Bohman and W. Rehg (Cam- bridge, MA: MIT Press, 1997); I have mentioned David Estlund's argument against political egalitarianism above. To the extent that his epistemic alternative is based on principles that can be reasonably rejected, it violates democratic principles and could be used to justify intolerance.

29. The parents initially accepted such an accommodation, but some school officials rejected it. See William Galston, "Diversity, Toleration and Deliberative Democracy: Religious Minor- ities and Public Schooling," in Deliberative Politics, ed. S. Macedo (Oxford, UK: Oxford Uni- versity Press, 1999), 39-48. Galston defends "mere toleration," limited only by "the minimum necessary social unity." A deliberative theory does not defend such a minimum unity; social unity may, like civic virtue, exist to a greater or lesser degree without undermining the success of the deliberative regime of toleration.

30. On the related conception of "partial citizens," see Jeffery Spinner, The Boundaries of Citizenship (Baltimore: Johns Hopkins University Press, 1994), 87ff.

31. Gutmann and Thompson, Democracy and Disagreement, 62. 32. Both these arguments in favor of liberal education and against the default mode of accom-

modation are found in Macedo, Diversity and Distrust, 165f. My argument for accommodation is based on democratic rather than cultural grounds. Accommodation is required if it can be shown that political egalitarianism or other democratic principles are violated without it. I am grateful to Alan Paten for pushing this objection to the presumption that accommodation is always correct in a pluralist democracy.

33. On the specific accommodations offered in general to fundamentalist parents in the district and in this particular case, see Bates, Battleground, 159. For a criticism of liberal and deliberative arguments against accommodation to religious groups, see Jeff Spinner-Halev, "Extending Diversity: Religion in Public and Private Education," in Citizenship in Diverse Soci- eties, ed. W. Kymlicka and W. Norman (Oxford, UK: Oxford University Press, 2000), 68-95. Spinner-Halev makes central the practical and institutional argument that having fundamentalist parents withdraw their children from public schools serves the democratic goal of civic education less well than accommodation.

34. As Bates shows, competing diversity claims were central to the arguments of the lawyers for the parents; see Bates, Battleground, 267.

35. David A. J. Richards, "Toleration and the Struggle Against Prejudice," in Toleration: An Elusive Virtue, 135.


36. On the impact of the fact of pluralism on the way "regulative principles constitute a community of moral judgment," see Barbara Herman, "Pluralism and Moral Judgment," in Tolera- tion: An Elusive Virtue, 69. Herman's Kantian account of moral community in terms of "engaged moral judgment" is quite similar to Habermas's conception of an inclusive communication community. Both are inadequate in the face of democratic dilemmas of deep conflict and must be sup- plemented by reflexive challenge to the deliberative framework.

37. Jurgen Habermas, Between Facts and Norms (Cambridge, MA: MIT Press, 1996), 339. For such a theory of toleration, see Rainer Forst, "Toleranz, Gerechtigkeit und Vernunft," in Toleranz, ed. R. Forst (Frankfurt, Germany: Campus Verlag, 2000), 118-43.

38. Seyla Benhabib, The Claims of Culture (Princeton, NJ: Princeton University Press, 2002), 140-41.

39. Frank Michelman, Brennan and the Supreme Court (Princeton, NJ: Princeton University Press, 1999), 59.

40. I am here arguing that Kymlicka's distinction between ethnic and immigrant minorities ought not apply to deliberative practices. See Will Kymlicka, "The Good, the Bad and the Intoler- able: Minority Group Rights," Dissent 3 (1996); 29.

41. Bruce Ackerman, We the People, vol. 1 (Cambridge, MA: Harvard University Press, 1991).

42. John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), 121.

James Bohman is Danforth Professor of Philosophy at Saint Louis University. He is author of Public Deliberation: Pluralism, Complexity and Democracy (MIT Press, 1996) and New Philosophy of Social Science: Problems of Indeterminacy (MIT Press, 1991). He has also edited books titled Deliberative Democracy (with William Rehg) and Perpet- ual Peace: Essays on Kant's Cosmopolitan Ideal (with Matthias Lutz-Bachmann), both with MIT Press. He is currently writing a book on cosmopolitan democracy.

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