Toleration in the European Union: a forgotten virtue

Abstract

When the Hungarian Parliament passed legislation prohibiting the dissemination of information on diverse sexual and gender identities to minors, the Commission launched infringement proceedings pleading a breach of the common values under Article 2 TEU, amongst others. The dispute constitutes the occasion to explore the meaning of toleration in the EU and its scope, i.e., whether alleged intolerance of national minorities does or should lead to transnational intolerance of the EU vis-à-vis its Member States. Putting the work of the political philosopher Rainer Forst into dialogue with EU constitutional theories, this article identifies three justifications for transnational toleration: (1) functional; (2) liberal multicultural; and (3) liberal constitutional. By reference to the Hungarian case study, the article shows that these justifications are liable to legitimise transnational toleration on ethical rather than moral grounds. The dense structure of EU constitutionalism impairs a moral justification by way of Article 2 TEU.