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Protest and Tolerance: Legal Values and the Control of Public-Order Policing David Feldman I. Introduction This essay uses public order law in England and Wales and Northern Ireland to show how different factors affect the assessment of legitimacy of the balances that are struck between competing rights and interests. Section II sets the idea of toleration in the context ofBritish social history and aspects of international human rights law and suggests some procedural criteria, concerned with the form of the legal rules and institutions governing public order by which the justifiability of state action to enforce tolerance should be assessed. Section III evaluates systems for controlling public protest in England and Wales and Northern Ireland in the light of those conditions. Section IV offers some conclusions. It is argued that the official discretion must be legitimized by the constitutional position of decision makers, by appropriate and adequately determinate decisionmaking criteria, and by appropriate mechanisms for accountability. Rights should be given weight in public order decision making, but the formulations of the rights and the weights attached to them will properly vary significantly between jurisdictions by reference to local social and cultural conditions. II. Tolerance, Rights, and Social Values This essay considers the conditions under which it should be considered justifiable for officials to enforce tolerance of public protest, illustrating the discussion by reference to the law and practice of public order in England and Wales and Northern Ireland. To some people in a tradition that respects the right to free expression and expects a high level of tolerance for it, particularly in the United States, this will seem a strange way of formulating the issue. Surely, they may say, it is intolerance and restrictions 43 44 Liberal Democracy and the Limits of Tolerance on speech that need to be justified, not state expectations oftoleration. My answer is that it depends heavily on the matrix of political and social values that dominate a given society. To explain that, this section of the essay sets the idea of toleration in the context of British social history and aspects of international human rights law. I argue that the need for the state to act is rooted in a particular society and political structure, so the approach must be responsive to local conditions. Nevertheless, I suggest that there are some procedural criteria, concerned with the form of the legal rules and institutions governing public order, by which the justifiability of state action to enforce tolerance should be assessed. These apply regardless ofvariations in different jurisdictions' approaches to rights. Democracy and cultural pluralism within any society both rely on citizens ' being willing to tolerate (at least to some extent) values, opinions, and ways of life with which they disagree, of which they disapprove, and which annoy, inconvenience, threaten, or even harm them. Yet there will come a point at which people are no longer prepared to tolerate particular forms of behavior. Ideally, individuals or groups will respect and understand each other sufficiently to be able to reach an accommodation in such cases. Sometimes, however, this will be difficult, for reasons related to human nature and politics. A tolerant person has strong commitments. The commitment to allowing others to express views, or act in ways, that she considers to be wrongheaded or even to some degree harmful' is only one of these, and it may be weaker than her more concrete, strongly held opinions on particular issues if she concludes that the opposing view is simply intolerable.2 Furthermore, people have differential levels of tolerance . They tend to expect more tolerance for their own activities or views than they extend to the opinions or behavior of others.3 As Professor Brian Barry has pointed out, the great task of political theory, and especially democratic theory, is to find ways of institutionalizing reasons for citizens to maintain a commitment to higher-level obligations (including that of tolerance) that can in appropriate cases override the citizen's own, more concrete choices or values.4 Incentives and controls are likely to be necessary to persuade people that there is something significant to be gained, and nothing overwhelmingly important to be lost, by tolerating unappealing views or behavior. Sometimes opposed positions will be so strongly entrenched as to make agreement impossible, as in Israel, Northern Ireland, and until recently South Africa. In such cases, the state must step in to enforce either forbearance on the part of speakers and protesters or tolerance on the part ofaudiences. It has to...

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