Law and Religion: Law, Religion, and Human Rights
LAW AND RELIGION: LAW, RELIGION, AND HUMAN RIGHTS
The roots of human rights reach back into history as long as human beings have struggled for liberty and justice, yet the modern international human rights movement only took shape, through the agency of the United Nations, in the wake of World War II. Despite the voluminous output of literature on human rights, scholarly analysis of the promotion and protection of the freedom of religion and belief, and the ambivalent relationship of human rights concepts to religious traditions, only started to become apparent in the 1980s—subsequent to the development of specific international human rights instruments. The manifold reasons for this orphan status include secularist perceptions of religion as privatized, irrelevant or dangerous, sensitivity of religion questions, relativist concerns, and difficulty of achieving consensus and definition across many different traditions. Yet the rise of religion to prominence on the world stage has added new impetus to analyzing and engaging religious ideas and institutions from a human rights perspective, and vice versa.
Contours and Challenges
Several specialized texts on the ambivalent relationship between religion and human rights emerged in the 1990s. Arguably the most influential publication was the two-volume Religious Human Rights (Witte and Vyver 1996; van der Vyver and Witte 1996). It represented the first attempt to bring together different religious traditions and scholarly disciplines to examine, from an international perspective, the various permutations of the relationship between religion and human rights. By the end of the 1990s it also became possible to consult reports on how freedom of religion is understood, protected or denied around the world.
International developments in the last few years with regard to freedom of religion and belief have forced the hand of scholars to pay more attention to what is possibly the most controversial of rights.
- There is a growing awareness of the role of religion in social and ethnic conflict (e.g. the Balkans, Nigeria, Indonesia, etc.), and in international terrorism.
- The former communist countries of Europe and Eurasia have embraced, at least in theory, democracy and human rights, occasioning significant religious pluralization and conflict.
- The United States took steps to make religious freedom a central aspect of its foreign policy in the form of the International Religious Freedom Act of 1998. As a result of this law there is now an Ambassador-at-Large for International Religious Freedom, an office in the State Department, an Advisory Commission, and annual report on the state of religious freedom worldwide; in addition, the President is required to act to oppose all violations of religious freedom and employ the tools of U.S. foreign policy to promote religious freedom, as well as to activate sanctions against countries that are major violators of this freedom.
- A number of European countries have in the last few years imposed or proposed restrictions on newer religious formations ("sects" and "cults"), as well as on immigrant religious communities, such as Islam. These new developments have served to shift the focus onto actual violations of religious freedom by individual states, as well as bringing it closer to "home." It is predominantly minority religions who continue to suffer the worst forms of human rights abuses on a global scale.
Determining Origins and Defining Terms
More than fifty years after the drafting and adoption of the historic Universal Declaration of Human Rights in 1948, with its purpose of establishing a "common standard of achievement for all peoples and all nations," human rights parlance has now achieved the status of a global lingua franca. Yet the origins and trajectory of the human rights movement are contested by both its proponents and opponents, notably over its religious or secular foundations. Paul Gordon Lauren refers more constructively to the evolution of the human rights vision as the many "tributaries" of the "ever expanding and evolving river of human rights" (Lauren, p. 9). There are also valuable accounts of the semantic, political, and theological wranglings that shaped the emergent human rights discourse.
David Little rejects any pretensions to a single methodological approach to the complex and uncertain interrelationship of religion and human rights. His analytical framework is predicated on the two fundamental interests of religious people: being able to affirm, express, and manifest their convictions, and being able to avoid unfair discrimination or bias on account of religion. Little defines a "human right" as:
- A moral right advanced as a legal right.
- Protecting something of indispensable human importance.
- Ascribed naturally.
- "Non-derogable" (if primary), or subject to limitations under prescribed conditions.
- Universally claimable by all people against all others, or by certain generic categories of people such as "women" or "children"(Little, 1996).
The lack of theoretical and conceptual clarity of rights language troubles a number of scholars. Preferring to eschew the confusing array of philosophical theories proposed to account for human nature and human rights, Jack Donnelly describes human rights as "the social and political guarantees necessary to protect individuals from the standard threats to human dignity posed by the modern state and the modern markets" (Donnelly, pp. 20–22). Defining religion is even more of a challenge. The complexity and variability of definitions of religion from a legal perspective are cogently presented by Jeremy Gunn (Gunn, 2003).
Legal Protection and Interpretation
Four major modern instruments are concerned with the protection of freedom of religion and belief, although we should not overlook the significant norms regarding freedom of religion established by both the Treaty of Westphalia (1648) and the Minorities Regimes of the post-World War I system. The first is the 1948 Universal Declaration of Human Rights with its most crucial provision, Article 18: "Everyone has the right to freedom of thought, conscience and religion; this right includes the freedom to change his [sic ] religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance." The first clause guarantees the right to freedom of thought (and the inclusion of theistic, non-theistic, and atheistic belief is a feature of these international documents), and the second enumerates the specific rights therein. Kevin Boyle and Juliet Sheen write that this article constitutes a paradigm of the widespread debates over the nature of human rights in general, because it "raises the issue of the universality and indivisibility of rights, of the primacy of international law over national law and religious codes, of individual, minority and collective rights and of the relationship between rights, duties and community."
In 1959 followed Arcot Krishnaswami's much-cited Study of Discrimination in the Matter of Religious Rights and Practices. Krishnaswami was appointed by the Subcommission on Prevention of Discrimination and Protection of Minorities to study rights pertaining to religion and belief, and to draw up a program of action to eradicate religious discrimination. He concluded that the collective aspect of the freedom to manifest religion or belief was especially important, as it was prone to state intervention and regulation. He noted the particular vulnerability of minorities in this regard. The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were adopted in 1966 and ratified in 1976. The ICCPR is the only global human rights treaty with articles on religion and belief that contains measures of implementation.
In 1981 (after years of intensive lobbying and complicated negotiations) came the landmark Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief. It served to elaborate what the 1966 Covenant adumbrated. To placate non-religious believers "whatever" was inserted before the word "belief" in Article 1(1), and explicit references to "changing one's religion" were deleted from the text at the behest of Muslim delegations, although this had already been partly degraded in the ICCPR.
A number of legal scholars have helped illuminate the theory and practice of the freedom of thought, conscience, religion and belief in international law. Many consider that it is preferable to strengthen existing norms and mechanisms rather than move toward a more legally binding convention. Boyle and Sheen acknowledge the considerable agreement that has been reached on the content of these freedoms in international law, notwithstanding the remaining disputes, chiefly over the interpretation of the requirements of these international standards. They see the more serious reality as the "open repudiation in practice" (Boyle and Sheen, pp. 4–5) of norms accepted by the majority of states in the United Nations in binding international agreements. These allegations of violations, generally pertaining to restrictions on practice and association, are forwarded to states, which must then respond. They are also documented biannually in the reports by the Special Rapporteur of the Sub-Commission on Freedom of Religion and Belief of the United Nations Commission on Human Rights. These reports are integral to the normative interpretation and development of the international norms pertaining to religion, as are the views of the Human Rights Committee of the ICCPR. However, the U.S. State Department is more effective in documenting abuses.
Many scholars point to the nature of the relationship—practical and not just legal—between religion and the state ("church-state" is proving less and less applicable as a descriptor in the face of religious pluralization) as being formative in accounting for the substantive differences in the achievement of religious freedom around the world. There is a growing body of literature on Europe in matters of freedom of religion and belief—which is to be expected given its historical significance—and a surge of cases raising difficult questions under Article 9 of the European Convention on Human Rights (ECHR). The Organization for Security and Co-Operation in Europe (OSCE) has been described as a "trendsetter" for the way it has raised the profile of religious freedom on the international agenda of participating states and focused critical international attention on their respective practices, although its far-reaching norms are politically, rather than legally, binding.
A large portion of the scholarship on the relationship between religion and human rights addresses the issue of their compatibility or incompatibility. For Louis Henkin (1998) religious ideologies differ from the human rights ideology principally in terms of sources and bases of authority. Religious traditions are more totalizing, and oriented (notably smaller, minority religions) toward the rights of their own adherents, or religious rights more generally. While acknowledging the shared concept of human dignity, he highlights recurring differences in contemporary interests and concerns, namely the areas of freedom of religion and religious choice, equality and nondiscrimination, gender distinctions, and capital punishment.
Those who advocate the compatibility approach tend to opt for a strong foundationalist orientation, believing human rights to be the modern political outcome of ancient religious beliefs and practices. In addition to the numerous works on Christianity and human rights, some focus on other traditions such as Buddhism, Judaism, Hinduism, or traditional African religions. There exist also several comparative works, often driven by an ecumenical, Golden Rule approach. Some studies explore differing points of emphasis, such as the interdependence of rights and duties, the concept of personhood, and the dynamic between individual and collectivity in religious communities. The case of Islam is viewed as particularly challenging in terms of whether Islamic law and theology support the modern notion of human rights.
Culture both complicates and enriches the whole question of human rights theory and implementation. The truth-claims and traditions of religious and ethnic groups feed into, and even exacerbate, the unending debates about universalism and relativism, or cultural domination and subordination. Frequently these are centered on concerns for the rights of peoples or populations identified as indigenous who have suffered both under colonialism and postcolonialism. In the case of Latin America, for example, some scholars have argued that religion provided the foundation for the defense of the rights of indigenous peoples in Latin America, as well as legitimating the atrocities against them. The protection now available to ethnic minorities in the form of Articles 18 and 27 of the ICCPR to maintain their language, culture, and religion is predicated on the control of sacred sites, skeletal remains, burial artifacts, and other items of religious and cultural significance.
Others would consider that it is the challenge that these indigenous peoples, along with other ethnic minorities, are mounting to the individualistically oriented human rights paradigm that is more preoccupying. There is a rich body of literature emerging on "group rights," some of it framed within current discourse on multiculturalism and cultural self-determination, in which religious identity often features prominently. The particular problems of religious rights come about as they constitute classic "civil" or "individual" rights and yet are fundamental to the protection of the rights of minority, indigenous, and other groups. The dichotomy of group versus individual rights is also a major issue as far as how countries and societies view the right to freedom of religion or belief, and one which adversely affects minorities.
Proponents of "Asian values" or "Islamic values" argue that the communitarianism, authoritarianism, and emphasis on economic development in their societies are antithetical to Western liberal conceptions of human rights. Such advocates have been challenged for using cultural reservations as a "smokescreen" for human rights violations, and for promoting a static and polarized image of the human rights movement. Some question the univocality of terms such as universal or freedom.
Human rights scholar and advocate Abdullahi An-Naʾim has been one of the most prominent proponents of the need for human rights to seek cultural legitimacy through internal and cross-cultural dialogue and to support more inclusive and equitable processes of change. He realistically sees how individual rights and collective rights complement, but also contradict each other—which is to be expected, as all rights are instruments of negotiation and mediation of competing claims. Similarly, he stresses the contingency of universalist projects to date, while calling for more global participation in the construction of the human rights ideal. This is reiterated by such critical theorists as Boaventura De Sousa Santos, with his concern to transform the conceptualization and practice of human rights from a globalized localism into a cosmopolitan project. This reconfiguring of the relationship between culture and rights is considered as arguably the most important development in recent rights theory and practice. Yet sensitivity to believers' positions, while not conceding to relativist arguments, continues to represent one of the most pressing challenges for the field of human rights.
Some consider that the right to engage in missionary activity is perhaps the most controversial aspect of religious freedom. This is closely linked to the disputed right of changing and exiting one's religion. The new "war for souls," precipitated by the globalizing forces of democracy and capitalism, became the focus of an international project conducted by Emory Law School's Law and Religion Program.
Perhaps the most problematic issue to emerge from the research was the clash between the right of an individual or group to promote, teach or propagate his or her religion or belief, and the right of an individual or group to resist such disruptive incursions. Disseminating one's religion is protected by both individual and group rights. Asymmetrical power relations are generally inherent in the proselytization exercise, although this type of interreligious encounter can arguably stimulate cultural exchange and self-critique. With the growth of religious revivalism and militancy within our global network society, the human rights community is gradually waking up to the potent influence of the media in promoting both tolerance and intolerance.
A strong focus of the scholarship on the no less controversial case of women within the overall picture of religion and human rights has been on the religious traditions themselves. This is hardly surprising given the denial of their rights that many women experience both as citizens and as members of religious communities, and the fact that religious norms frequently underpin social practices of exclusion and domination. Women's rights to equality under state and international human rights law frequently clash with the rights of religious collectivities to self-determination. Religion is also a source of liberation or repression for women from a variety of textual, historical, legal, cultural and social perspectives.
The freedom of choice is important for women within religious systems, but not at the expense of their basic human capabilities. Conflicts frequently arise between religious and customary laws and international human rights norms over the equality and freedom of women in matters of land allocation, inheritance, marriage, and divorce. External freedoms, or the public manifestations of religion, are areas where women's rights to freedom of religion and belief are often compromised, as in dress codes and female genital muti-lation.
Conclusion: Lingua Franca, Lingua Sacra?
Now more than ever the convergences and divergences of human rights culture(s) and religious culture(s) in our globalizing world calls for new interpretations. Scholars of religion need to examine the ways in which both mainstream and minority religious organizations resist and accommodate the increasingly powerful discourse of international human rights as part of the strategies of these groups for recognition in the public sphere. The naturalization of human rights norms can lead to the objectification and standardization of religion. It also serves to blur conventional distinctions between public and private. Similarly, it points to the capacity of religious communities to generate much-needed political will for the implementation of human rights standards. Likewise, an appropriate focus on the cultural translation of human rights in diverse settings would illuminate the ambivalence surrounding their reception and implementation. Attention to the new strategies being developed by many states to regulate freedom of religion and belief would enhance understanding of patterns of discrimination more generally. In other words, the critical and comparative study of religion can help raise questions about the troubling question of human rights qua religion, in other words, the (occasional) intolerance of the human rights movement toward its detractors, and its functioning at times as a new world religion. For that reason, it has been argued that because religious thinking has contributed to the conceptual and practical development of human rights, and legal regulation draws increasingly on human rights norms, it should resist being coopted.
In sum, the particular skills that religion scholars bring to the table in terms of what Ninian Smart called "worldview analysis." The critical interpretation of sacred symbol, sound, text, space, ritual, object, community, as well as cultural difference and identity, are highly germane in the analysis of human rights discourse and practice. Moreover, the location of religious studies scholarship at the intersection of the humanities and social sciences, together with its focus on religious belief and practice as embedded historical and contemporary realities, can serve to complement, if not healthily challenge, the domination of human rights questions by legal, political, and philosophical theorists.
Good overview articles on the nature and history of the human rights idea can be found under "human rights" at http://www.britannica.com. For a range of texts on religion and human rights, see the invaluable http://www1.umn.edu/humanrts/links/religion.html, as well as http://www.religlaw.org/interdocs/rhrbdtoc.htm. For reports on freedom of religion and belief, see the annual reports by the U.S. State Department (http://www.state.gov) and the U.S. Commission on International Religious Freedom (http://www.uscirf.gov), and the biannual reports of the U.N. Special Rapporteur on freedom of religion and belief (http://www.unhchr.ch/html/menu2/7/b/mrei.htm). See also the news service on religious intolerance and discrimination from Human Rights without Frontiers (http://www.hrwf.net).
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An-Naʾim, Abdullahi A., ed. Proselytization and Communal Self-Determination in Africa. Maryknoll, N.Y., 1999.
Barry, Brian. Culture and Equality: An Egalitarian Critique of Multiculturalism. Cambridge, Mass., 2001.
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Tahzib-Lie, Bahia. "Applying a Gender Perspective in the Area of the Right to Freedom of Religion or Belief." Brigham Young University Law Review 3 (2000): 967–988.
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Witte, John. "A Dickensian Era of Religious Rights: An Update on Religious Human Rights in Global Perspective." William and Mary Law Review 42 (2001): 707–799.
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Rosalind I. J. Hackett (2005)
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