“Constitutional Intolerance. The Fashioning of the Other in Europe’s Constitutional Repertoires” (CUP, 2025), by Mariëtta D. C. van der Tol (University of Oxford), is without doubt a book that is timely in topic, very interesting in its interdisciplinary character, offering a philosophical, historical, and comparative analysis of how modern European constitutional orders fashion and sustain the figure of “the Other”—particularly religious, ethnoreligious, ethnic, and sexual minorities—through legal, symbolic, and spatial practices. The author argues that intolerance is not merely a feature of illiberal regimes, but is structurally embedded in constitutional repertoires across both liberal and illiberal states.
It is a work of considerable conceptual ambition, combining legal analysis, political theology, and comparative constitutional law. At its core, the book advances a provocative thesis: that modern European constitutions, whether liberal or illiberal, often sustain exclusionary practices not in spite of their constitutional structures, but through them. The legal and symbolic repertoire of the constitution is used not only to organize political life but to fashion the figure of the Other—be that religious, ethnoreligious, ethnic, or sexual minorities.
Here, I will present an overview of some key arguments present in the book and then posit some remarks and open questions related to its content and implications.
An overview of some arguments of “Constitutional Intolerance”
There are three central moves in the book that I would like to highlight: tolerance, temporality and spatiality, and constitutional exclusion.
(1) Tolerance
First, van der Tol introduces a crucial distinction between tolerance and toleration.
- Tolerance is an individual or cultural attitude—liberal, egalitarian, pluralist.
- Toleration, by contrast, is a legal and political technique, historically rooted in early modern canon law. It is hierarchical, discretionary, and often conditional. It permits the Other—but only on terms set by the majority.
This conceptual distinction allows van der Tol to critique the liberal narrative that constitutionalism is necessarily inclusive. She argues that many modern constitutions retain the logic of toleration even as they invoke the language of tolerance.
(2) Temporality and spatiality
Second, the book introduces temporality and spatiality as critical, but often overlooked, categories in constitutional theory.
Constitutions, van der Tol argues, do not only regulate political authority in space—they also regulate time. They mark who belongs now, and who is deferred, not yet ready. Minorities, especially Muslims and LGBT individuals in the case studies, are often positioned as temporally out of sync with the national or constitutional identity. This “temporal othering” is reinforced by their restricted visibility in public space.
Public space, in this account, is not neutral—it is managed and legally encoded. Constitutional law thus becomes a tool not only of institutional design, but of symbolic and spatial regulation.
(3) Constitutional exclusion
Third, van der Tol explores how constitutional repertoires—including legal doctrines, amendments, symbolic language, and pseudo-constitutional practices—are mobilized to reinforce exclusion. Her case studies show four different patterns:
- In France, laïcité is reinterpreted as a tool of exclusion through the “living together” doctrine, targeting Muslim women.
- In the Netherlands, vague invocations of public order are used to normalize social majoritarianism.
- In Hungary, constitutional identity is redefined by the ruling party to exclude dissenting religious groups and sexual minorities.
- In Poland, pseudo-constitutional instruments such as “LGBT-free zones” are used to signal symbolic expulsion from the national community.
In each case, constitutional forms are used to define the “We” by legally and culturally regulating the “They”.
Three questions for “Constitutional Intolerance”
(1) Is it really about the constitutions?
Let me explain. When we say constitution we might mean at three different things. The first meaning is the very constitutional text, or the various bits and pieces of law texts that are part of the constitution in those rare cases in which we call the constitution unwritten. The second meaning is all of the norms derived from the constitutional texts including those norms arising from the judicial interpretations of constitutional texts. The third meaning is the social norms that we at times call constitutional conventions that either filll the social voids created by the lack of constitutional texts in the regulation of certain matters that we commonly consider matters to be regulated by the constitutions.
In this way we might come to a problem with the very concept of constitutional intolerance. It might well be that on the level of constitutional text we do not identify something that might be considered as an intolerance, but on the level of constitutional conventions there is a significant degree of intolerance, or the other way around. In fact, and there is some discussion about this in the book related to interpretations of constitutions in illiberal regimes, it seems to me that this is not an aberration, a bug so to say, but a feature of constitutions in virtue of the fact that their texts are overly general, ambiguous, vague or even contested.
(2) Is it only about the constitutions?
Let me briefly retell a Serbian case here that has more to do with ethnical minorities and not strictly speaking . The social norms in the Roma population is that sexual relations and procreation are allowed as soon as factual reproductive age is achieved. However, the criminal law in Serbia criminalizes sexual relations with minors below the age of 14. Since factual sexual maturity is reached before the age of 14, it is a quite common occurrence within Roma families that sexual relations with minors occur regularly. What is more, they occur within what is in the social sense considered as marriage in this population, sanctioned and closely regulated by the family of the girl, or both the families of the man and the woman.
As a consequence of the fact that medical doctors have to report on cases of underage pregnancy to state bodies, some of these cases finish in court. I won’t go in the details about the courts treatment of cases, but is seems quite obvious that we are justified in asking about whether the arguments of the book are not restricted to constitutions, but raise problems about legal regulation in general. Namely, what van der Tol diagnoses as a problem with the modern European constitutions might well be a problem for the very idea of regulating social life by using words that are supposed to express legal norms, along with the possibility of coercively enforcing these norms.
(3) Is it possible at all to regulate (and even a-synchronically address) these issues by means of law?
While the constitution can in general express in a certain way a general relation towards a certain religious issue, it lacks the tools and resources to close the discussion on many an issue that it regulates. This might be framed as a Waldron’s ideas (by the way, an idea that I deeply disagree with): the idea that the law sometimes serves the purpose of opening the field of discussion, and not the purpose of closing the discussion about the issue. This possibility brings about the constitutional realities that are unavoidable by the very text of the constitution or its interpretations.
Let me give an example. Both Serbia and Montenegro are secular states as defined by their respective constitutions. In Serbia, the secular character doesn’t exclude public institutions from celebrating a Cristian orthodox saint day, nor has this been successfully challenged within the framework of constitutional law. In Montenegro, the introduction of the Christian Orthodox Saint Day in a city has been successfully challenged in recent months, though the Constitutional Court has unfortunately relied on procedural issues and not on substantive issues to declare the introduction of the official saint of a local institution unconstitutional.
An open conclusion for further debate
If I were to draw a general issue from these questions, it would most probably be the following. Can constitutions, or law in general actually pre-empt religious or any other intolerance in the way that the book and the author suggests?
As for me, it’s like in the saying that when you only have a hammer, everything looks like a nail. I’m not inclined to really too much on legal texts in solving delicate issues. Legal texts are, most of the time, blunt instruments that are crucially shaped by the interpretations that are conferred to those texts by the community which gave rise to those texts, and crucially to the judges and the courts that are also, for better or for worse, a reflection of those communities.
The content of this blogpost was first presented at “POLREL2025 – Politology of Religion: V Bi-Annual Conference 2025″, specifically within “P10: Book talk, ‘Constitutional Intolerance: The Fashioning of the Other in Europe’s Constitutional Repertoires (Cambridge University Press, 2025)'”.
My work on both the presentation and this blogpost results from research conducted within the Horizon Twinning project “Advancing Cooperation on The Foundations of Law – ALF” (project no. 101079177). This project is financed by the European Union.
SUGGESTED CITATION: Spaić, Bojan: “Can constitutions actually pre-empt religious or any other intolerance?”, FOLBlog, 2025/6/3, https://fol.ius.bg.ac.rs/2025/06/03/on-constitutional-intolerance/