11/16/2012 05:17 pm ET Updated Jan 16, 2013

Letter to Europe: Concering Toleration

A Letter to Europe: Concerning Toleration

Shortly after a trying visit to the European Parliament in Brussels (picture an entire city under the confused thumb of TSA...) I retreated to higher ground in an intriguing old building on a hill. Not having dusted off my Flemish in some time (like, ever,) I ignored the posted signs and let the relic reveal itself.

At first I thought it might be abandoned. Pigeons had been vigorous in their disdain on the porticos; Lycurgus and Demosthenes glared stonily from under a thick white coulis. Trash and abandoned sleeping bags, a miasma of urine, a pile of new-cut hair blowing down the steps. It wasn't abandoned after all; a black-robed twenty-something lawyer stood discussing a case with his client amidst the lurid graffiti. The "Justitiepaleis" I was told, as I sauntered unchallenged through the swinging wooden doors. "Palace of Justice," how appropriate...

Inside was cleaner, though at least as dilapidated. A gloomy and magnificent neoclassical tribute to Roman order and rule of law; all marble floors and soaring ceilings and Ionic capitals. I could pick out the words "Commerce" and "Register" from the carefully painted notices at the bottom of grand flights of steps. Clearly an artifact of 19th century extravagance, it turns out to have been the largest building constructed in that gilded era. In this century it serves as the city's convenient public spittoon, butt-can, and dumpster.

It got me thinking: can a society be too tolerant?

Modern Europe is rightly proud of its broad-mindedness. Heaven knows it suffered enough centuries of bigotry, prejudice, and despotism to be justly satisfied in creating a political climate that today welcomes religious diversity, freedom of expression, and liberty (mostly) to trade. Voltaire would be delighted.

But a disturbing postscript to Europe's chapter on the enlightenment is its modern passivity in the face of incivility. I'll call it radical toleration and I fear it may prove hazardous to cultural health.

Earlier, a young woman swiped her card to enter an ATM booth outside the train station. "Ha!" bellowed the creep sitting against the wall outside. Torn jeans, a filthy leather jacket and wild punk hair, he caught the door and slipped in behind her. "Oh no, do you see that?" murmured our guide, shaking his head and walking on, eyes locked forward... Granted, our guide may have just been lily-livered (and the same scene could have played out here), but taken it fit the larger context. The public space had been surrendered wholesale to rag-tag packs of degenerate scruffs.

Heedless embrace of the thug, the tagger, and the street bum is not enlightened toleration; it is abdication. Europe appears to have lost a great deal of respect for property, particularly (and ironically) public property. A 2004 study by the Bureau of Justice Statistics shows that the U.S. has lower burglary rates than much of Europe, not surprising given the sweeping acceptance of property invasion. Defending possessions is a bulwark of the modern liberal state and it is being undermined in the Old World.

Lest we be patted on our New World heads as lecturing ingénues, recall that the United States stands as the world's third oldest operational republic (charitably conceding San Marino's rather precipitate declaration in 301 AD...). Cultural greenhorns we may be, but America has something political to say about the proper relationship between state and society.

That something is this: a distinction must be made between toleration and indulgence. Europe is teetering on the verge of the latter, which, as in any dalliance with excess, threatens the very outcome it was supposed to foster. The creeping danger in Europe is that tolerance increasingly includes acceptance of the uncivil: defacement, harassment, and theft.

So what does toleration, properly understood, actually entail? What, indeed, are we allowed to allow? Certainly diversity in ideas, political persuasion, creative expression, lifestyle and faith choices. As Jefferson was wont to say, if an act "neither picks my pocket nor breaks my leg" then it ought to be protected from the policing powers of government. Europeans embrace this manifestly (my hasty retreat to the Justitiepaleis was, in part, to escape the awkward fawning of our he-she tour guide in snakeskin pants). My critique is not, therefore, for Europe's vibrant and commendable permissiveness, but for not knowing when this permissiveness becomes a lack of self-respect for its body politic.

Citizens of a liberal state should expect (no, demand) the right to believe, say, and do what they wish, according to the dictates of their conscience. But that right ends, forcefully if necessary, when property is trespassed. This then is the prism through which we may view well-understood toleration: if it injures property, it cannot be tolerated. Peeing on the national courthouse is not "expression," it is defacement. Badgering fellow citizens on the street is not "normative cultural display," it is harassment. Germany's requirement to declare one's religion (and to be taxed accordingly) is not a quaint folksy vestige, it is theft.

Defending an Offense

"What if," counters the relativist, "we're just being thin-skinned Americans with different aesthetic values?" Perhaps we're just being snobbish about standards of public behavior?

No, and here's why: an offense can be passive or active; if the former it must be tolerated, in the latter it must be confronted. Europe seems hard-pressed to make a distinction, precisely because it is so reluctant to view offensive behavior through the lens of property violation.

Offense can fairly be taken at the defacement of the courthouse because it is an active offense, a trespass against property purchased by the tax-paying public. Meanwhile next door, the controversial sculpture of the "Urinating Policewoman," while deeply offensive to some, is nevertheless a passive offense since you must choose to visit the display. It harms (we presume) nobody's property and yet authorities in Europe seriously considered censorship. In fact, "Urinating Policewoman" does nothing more than prove Nabokov's dictum that "In matters of art, 'avant garde' means little more than conforming to some daring philistine fashion." Likewise, the famously "offensive" YouTube video that sparked protests throughout the Muslim world, while probably tasteless, was a passive offense since users had to choose to be insulted.

The street goon leering his way into an ATM booth, however, is actively offensive: he demonstrates resolution to assault property and he cannot be ignored (we Americans, for the record, lingered and made sure nothing happened: Quelle horreur, quelle gauchiere!). Active affronts to property cannot be tolerated in a truly liberal regime; they should be resisted at all costs including, in Max Weber's memorable parlance, calling upon the legitimate use of physical force; i.e. the State.

Toleration, then, is not simply a matter of taste. Well-understood tolerance must exist within the boundaries between proper regard and active disregard for property. Europe has a muddled and somewhat cavalier conception of property rights (in Germany, for instance, a farmer cannot prohibit trespassers). It therefore wrestles with the question of toleration because it fails to make a clear linkage to property infringement.

As I prepare myself for shredding in a barrage of Europhilic hate mail, let me say that in point of fact, this critique is leveled at home at least as much as abroad. Europe may simply serve as a warning to us as we attempt to maintain a free state in the face of illiberal radical toleration.

Brussels' Justitiepaleis is falling apart. From an upper arcade I could see, through murky windows, a collection of used filing cabinets under a coat of dust on the balcony. A winged figure from the pediment lay broken nearby. This was a building dedicated to the promotion of justice, to the defense of property; now it stands as a derelict relic from the past, violated by modern sensibilities. Lawyers whispered from one dirty courtroom to the next like Vandals in the Pantheon. It depressed me.

Paul Schwennesen ranches in Southern Arizona. He recently returned form a McCloy Fellowship to Germany.