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The Problem of Secularism in Human Rights Theory

Freeman, Michael, 1936-

Human Rights Quarterly, Volume 26, Number 2, May 2004, pp. 375-400 (Article) Published by The Johns Hopkins University Press DOI: 10.1353/hrq.2004.0020

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HUMAN RIGHTS QUARTERLY

The Problem of Secularism in Human Rights Theory


Michael Freeman*
ABSTRACT
Theorists and practitioners commonly assume that the concept of human rights is secular and that it normally takes priority over other values. These assumptions are controversial for those who approach human rights from the perspective of religious beliefs. This article examines the arguments both of those who claim that religious beliefs must interpret human rights in their own terms and those who claim priority for the international (secular) legal understanding of the concept. It compares Western and Islamic approaches to religion, secularism, and human rights, and reaches two conclusions: 1) at the philosophical level, there may be no decisive argument for according priority to secularism or religion; 2) the politics of this debate may be more important in practice than questions of religious philosophy.

I.

THE PRIORITY OF HUMAN RIGHTS

The United Nations conception of human rights accords to its principles and norms a certain priority over competing considerations. The Universal Declaration of Human Rights, for example, associates human rights with the highest aspiration of the common people, and proclaims itself to be a common standard for all.1 It is well known that this claim raises questions about the validity of universal principles in a culturally diverse world, and

* Michael Freeman is a Research Professor of Political Theory in the Department of Government, University of Essex, United Kingdom. 1. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), U.N. GAOR, 3d Sess. (Resolutions, part 1), at 71, U.N. Doc. A/810 (1948), reprinted in 43 AM. J. INTL L. SUPP. 127 (1949).

Human Rights Quarterly 26 (2004) 375400 2004 by The Johns Hopkins University Press

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these questions have been thoroughly discussed in human rights theory.2 Human rights advocates commonly assume that human rights provide the common, that is universal, standard, and that the question of culture is either how cultural barriers to the implementation of human rights standards might be removed, or to what extent concessions might legitimately be made to cultural diversity from the standpoint of universality. These are, however, not the only ways in which the question may be posed. Many of the worlds cultures, especially those associated with the great religions and philosophies such as Confucianism, Buddhism, Judaism, Christianity, and Islam are ancient, widespread, and deeply rooted in the lives, beliefs, and values of billions of people. It is often said that these religions and philosophies can support human rights, but there is no doubt that some human rights norms can conflict with some requirements of religion or philosophy. Insofar as these beliefs provide for those who hold them the most fundamental reasons for action, it is not obvious why they should yield to human rights standards in cases of conflict. This question of the possible conflict between human rights principles and religions or philosophies has resided at the heart of human rights theory from the beginning. While the Universal Declaration was being drafted, United Nations Economic, Scientific and Cultural Organization (UNESCO) undertook an investigation into the theoretical problems of such a project. In his introduction to the published results of this investigation, Jacques Maritain argued that a consensus on the justification of human rights would be impossible because of the diversity of philosophies around the world.3 Maritain could justify the concept on the basis of his philosophy, which he believed to be true, but he could not reasonably expect that there would be a global consensus on this justification. There might be a consensus on what human rights there were, but not on why there were these rights. Different philosophies might justify human rights in different ways, but they might well differ in their specification on the limits of, and mutual relations among, human rights. He warned that the attempt to achieve a global consensus on human rights might produce an agreed text, but the different philosophies might prove to be barriers to the implementation of the principles contained in the text.4 This raises the question as to whether the priority that human rights discourse gives to human rights over other values is itself a universally valid value. The assumption that it is has been

2. 3. 4.

JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE 10924 (1989); PETER R. BAEHR, HUMAN RIGHTS: UNIVERSALITY IN PRACTICE 919 (2001); MICHAEL FREEMAN, HUMAN RIGHTS: AN INTERDISCIPLINARY APPROACH 10130 (2002). Jacques Maritain, Introduction to HUMAN RIGHTS: COMMENTS AND INTERPRETATIONS 917 (UNESCO ed., Greenwood Press 1973) (1949). Id.

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challenged by the recently developed concept of internal dialogue about human rights.

II. THE CHALLENGE OF INTERNAL DIALOGUE The concept of internal dialogue does not challenge the universality of human rights directly, but does so indirectly by insisting that the theory and practice of human rights ought to be developed by dialogue internal to cultures. For example, Article 20 of the Constitution of the Islamic Republic of Iran states that all citizens enjoy all human rights equally in conformity with Islamic criteria.5 Human rights advocates might believe that the reference to Islamic criteria simply undermines the apparent commitment to the universality of human rights.6 Muslims might respond, however, by affirming that if they are to subscribe to human rights principles, they must do so in conformity with Islamic criteria. To do otherwise would be to abandon their religion, which cannot reasonably be required by the international human rights community, most obviously because Article 18 of the Universal Declaration guarantees their right to freedom of religion.7 Norani Othman, a Malaysian Islamic womens rights activist, has acknowledged that there are conflicts between human rights and common formulations of Islam.8 Muslims, she argues, can decide to what extent they should accept the concepts that are supposed to provide the basis for a universal conception of human rights only after they have critically reevaluated their Islamic heritage.9 Human rights activism must be grounded in local culture. Where religious orthodoxy is a source of laws that violate human rights, internal religious contestation is necessary. There are, for example, Islamic objections to the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).10 These objections must be met by Islamic responses. Given the deep commitment of Muslims to their religion, such responses are likely to be much more effective than direct appeals to international law. Othman believes that such responses can be made by the reinterpretation of Islams foundational religious texts

5. 6. 7. 8. 9. 10.

ANN ELIZABETH MAYER, ISLAM AND HUMAN RIGHTS: TRADITION AND POLITICS 198 (3rd ed. 1999). Id. at 6876. Universal Declaration of Human Rights, supra note 1. Norani Othman, Grounding Human Rights Arguments in Non-Western Culture: Sharia and the Citizenship Rights of Women in a Modern Islamic State, in THE EAST ASIAN CHALLENGE FOR HUMAN RIGHTS 169 (Joanne R. Bauer & Daniel A. Bell eds., 1999). Id. at 174. Convention on the Elimination of All Forms of Discrimination Against Women, adopted 18 Dec. 1979, G.A. Res. 34/180, U.N. GAOR 34th Sess., Supp. No. 46, U.N. Doc. A/ 34/36 (1980) (entered into force 3 Sept. 1981), reprinted in 19 I.L.M. 33 (1980).

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and by providing historical contexts for the provisions of Islamic law (Sharia) that conflict with human rights requirements.11 The Qur an, she maintains, can provide a source for the affirmation of human rights. On this foundation, the demands of Islam can be interpreted in the light of modern conditions so as to bring them into conformity with human rights standards.12 This can be achieved only through a sensitive, internal cultural discourse.13 Ultimately, she writes, the primary project for Muslim womens groups, in their struggle for womens rights, is not the recognition of CEDAW per se, but consensus within their own culture that the kinds of womens rights they are advocating are acceptable on the grounds of a public ethic derived from their own cultural and religious sources.14 In an Islamic society, human rights need Islamic legitimacy. The advancement of human rights in Islamic societies requires a religious rather than the secular approach familiar to most human rights activists, especially in the West. Othmans Islamic conception of human rights is offered to all faithful believers and all who may yet come to recognize the supremacy of Allah, that is, all of humankind.15 This seems to mean that human rights are the rights of actual and potential Muslims, but possibly not of those who are unlikely to become Muslims, including non-Muslim minorities in predominantly Muslim societies such as Malaysia. Othmans project for an Islamic conception of human rights may, therefore, have some strategic value in Malaysia, but it does not generate a convincing conception of universal human rights.16 Abdullahi An-Naim also seeks to root human rights in Islam. He argues that the concept of human rights raises questions of cultural legitimacy because international law in general, and international human rights law in particular, were formed by a small clique of lawyers, bureaucrats, and intellectuals at a time when Western culture was hegemonic.17 The implementation of human rights requires, therefore, that the problem of their internal cultural legitimacy be solved. If a culture appears prima facie to be incompatible with human rights, it can be reformed, whether

11. 12. 13. 14. 15. 16.

17.

Othman, supra note 8, at 172. Id. at 17377. Id. at 189. Id. Id. Othman, supra note 8, at 169. Othmans approach also offers little to women such as Ayaan Hirsi Ali, who rejected Islam and campaigned for the rights of Muslim women in the Netherlands. See Andrew Osborn, She Dared to Criticise Islam, Now She is Fleeing for Her Life, OBSERVER (London), 10 Nov. 2002, at 3, available at observer.guardian.co.uk/ international/story/0,6903,837035,00.html. Abdullahi A. An-Naim, Problems of Universal Cultural Legitimacy for Human Rights, in HUMAN RIGHTS IN AFRICA: CROSS-CULTURAL PERSPECTIVES 34950 (Abdullahi A. An-Naim & Francis M. Deng eds., 1990).

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internally or externally, only on the basis of respect for its traditions and of sensitivity to its criteria of legitimacy.18 It may be counter-productive for external human rights reformers to position subordinated internal reformers as agents of an alien culture. The Quran is, for Muslims, the word of God. Many Muslims believe that the whole of Sharia is divine, and that it is the whole duty of Mankind. Sharia, however, discriminates against women and non-Muslims, and, in this, is clearly not in conformity with international human rights law. This raises the question of why a Muslim should judge Sharia by human rights standards. An-Naim argues that the secular approach to human rights fails to answer this question convincingly since it requires Muslims to subordinate their religion to merely human, and non-Islamic, criteria.19 [If] secularism remains the only alternative to Sharia, therefore, the proponents of Sharia will be able to enlist Muslim public opinion to their side.20 AnNaim consequently seeks a middle way between traditional Islam, which is incompatible with human rights, and secularism, which is incompatible with Islam.21 He does this by distinguishing between the basic values of the Qur an, which is associated with the Prophets life in Mecca, and its historically contingent rules, which are associated with his move to Medina.22 Further, he argues that Sharia was constructed by Muslim jurists over the first three centuries of Islam and is therefore not divine law. Now Muslims have to live in a world of nation-states, constitutionalism and international law.23 The Qur an can retain its status as the religious basis of Muslim life, but it must be adapted to modern political conditions. It can, he maintains, be interpreted to support equal citizenship for men and women, for Muslims and non-Muslims. This reformed, but still Quranic, Islam would thus conform with human rights.24 An-Naim does not believe that Muslims and secular human rights advocates will always agree on the interpretation of human rights.25 One problematic area is that of hudud: the criminal offences for which the Qur an and/or Sunna (traditions of the Prophet) provide explicit punishments,

18. 19. 20. 21. 22. 23. 24. 25.

Id. at 366. ABDULLAHI A. AN-NAIM, TOWARD AN ISLAMIC REFORMATION: CIVIL LIBERTIES, HUMAN RIGHTS, AND INTERNATIONAL LAW 67 (1990). Id. Id. at 161. Id. at 1213. Id. at 78, 74. Id. at 84. Abdullahi Abdul An-naim, Toward a Cross-Cultural Approch to Defining International Standards of Human Rights: The Meaning of Cruel, Inhuman, or Degrading Treatment or Punishment, in HUMAN RIGHTS IN CROSS-CULTURAL PERSPECTIVES: A QUEST FOR CONSENSUS 36 (Abdullahi A. An-Naim ed., 1992).

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such as the amputation of a thief s hand. These raise special difficulties, as many Muslims believe that God has decreed such punishments, and that those who suffer them will be rewarded in the afterlife.26 These beliefs are so deeply rooted that An-Naim doubts that the punishments can be removed entirely from Islamic law.27 Here, what Muslims believe to be the will of God conflicts with the prohibition by the usual, secular interpretation of human rights law of cruel, inhuman and degrading treatment. Even reformed Islam, therefore, will remain in some tension with dominant interpretations of human rights.28 Mohammed Arkoun rejects An-Naims approach because he holds that the problem of the relation between Islam and modernity, including human rights, is political rather than scriptural.29 Islamic elites have mobilized conservative readings of the Quran for political purposes. This strategy has had some success because it appeals to those who have suffered from Western intrusions into the Islamic world or from the policies of local Westernized elites. A religion that offers self-esteem, solidarity, and eternal rewards may for some be more attractive than the theoretical egalitarianism of international law that seems in practice to serve the purposes only of the rich and powerful.30 Ann Elizabeth Mayer suggests that An-Naims reform program for Islam may be too radical and too influenced by the modern West to be acceptable to those Muslims that he is trying to convince, while actual fundamentalist elites have shown ambivalence in the application of hudud penalties.31 Mayer agrees with Arkoun that the problem may be political rather than religious in that fundamentalism flourishes under political

26. 27. 28.

29. 30. 31.

Id. at 3536. Id. at 36. Abdullahi A. An-Naim, A Modern Approach to Human Rights in Islam: Foundations and Implications for Africa, in HUMAN RIGHTS AND DEVELOPMENT IN AFRICA 75 (Claude E. Welch, Jr. & Ronald I. Meltzer eds., 1984); Abdullahi A. An-Naim, Religious Minorities under Islamic Law and the Limits of Cultural Relativism, 9 Hum. Rts. Q. 118 (1987); Abdullahi A. An-Naim, Islam, Islamic Law and the Dilemma of Cultural Legitimacy for Universal Human Rights, in ASIAN PERSPECTIVES ON HUMAN RIGHTS 31 (Claude E. Welch & Virginia A. Leary eds., 1990); Abdullahi A. An-Naim, Problems of Universal Cultural Legitimacy for Human Rights, in HUMAN RIGHTS IN AFRICA: CROSS CULTURAL PERSPECTIVES 331 (Abdullahi A. An-Naim & Francis M. Deng eds., 1990); Abdullahi A. An-Naim, Toward a Cross-Cultural Approach to Defining International Standards of Human Rights: The Meaning of Cruel, Inhuman, or Degrading Treatment or Punishment, in HUMAN RIGHTS IN CROSS-CULTURAL PERSPECTIVES: A QUEST FOR CONSENSUS 19 (Abdullahi A. AnNaim ed., 1992). Mohammed Arkoun, The Concept of Islamic Reformation, in ISLAMIC LAW REFORM AND HUMAN RIGHTS: CHALLENGES AND REJOINDERS 1124 (Tore Lindholm & Kari Vogt eds., 1993). Id. at 2123. Ann Elizabeth Mayer, A Critique of An-Naims Assessment of Islamic Criminal Justice, in ISLAMIC LAW REFORM AND HUMAN RIGHTS: CHALLENGES AND REJOINDERS 3760 (Tore Lindholm & Kari Vogt eds., 1993).

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authoritarianism.32 In reply, An-Naim does not deny that the problem of Islamic fundamentalism may arise from the politics of post-colonialism, but continues to argue that the solution must be reformed Islam and not secular.33 Both Othman and An-Naim seek to reconcile human rights and Islam by re-interpreting Islam. Their projects are not quite the same, however. Othman seeks to liberalize Islam, and is somewhat indifferent to international human rights law. An-Naim, by contrast, seeks an Islamic foundation for international human rights law. His project is therefore to Islamicize human rights. An-Naim is clearer than Othman in conceiving of human rights as universal and as not privileging Muslims. Both reject the secular approach to human rights, and both leave open the possibility that Islamic human rights will turn out to be somewhat different from secular human rights. In different ways, both seek to reconcile human rights to Islam through an internal reform of Islam that does not recognize the priority of human rights to fundamental religious beliefs.

III. THE CONCEPT OF UNIVERSALITY REVISITED In view of this internalist challenge, it is useful to re-examine the claims of human rights universalism. Jack Donnelly offers something like a paradigmatic analysis.34 Human rights are the rights one has simply because one is a human being.35 Consequently, they are held universally by all human beings. They are the highest moral rights, and in ordinary circumstances they take priority over other moral, legal, and political claims.36 Human rights are universal also in the sense that they are almost universally acceptedat least in word, or as ideal standards.37 We can presume, therefore, that human rights are universal, although that presumption can be overcome in particular circumstances by specific cultural arguments.38

32. 33. 34.

35. 36. 37. 38.

Id. at 59; Arkoun, supra note 29, at 12. Abdullahi A. An-Naim, Islamic Foundations of Religious Human Rights, in RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE: RELIGIOUS PERSPECTIVES 33760 (John Witte, Jr. & Johan D. van der Vyver eds., 1996). See JACK DONNELLY, THE CONCEPT OF HUMAN RIGHTS (1985); DONNELLY, UNIVERSAL HUMAN RIGHTS, supra note 2; Jack Donnelly, The Social Construction of Human Rights, in HUMAN RIGHTS IN GLOBAL POLITICS (Tim Dunne & Nicholas J. Wheeler eds., 1999); Jack Donnelly, Human Rights and Asian Values: A Defense of Western Universalism, in THE EAST ASIAN CHALLENGE FOR HUMAN RIGHTS, supra note 8; Jack Donnelly, The Universal Declaration Model of Human Rights: A Liberal Defense, 12 HUM. RTS. WORKING PAPERS, available at www.du.edu/humanrights/workingpapers/papers/12-donnelly-02-01.pdf. DONNELLY, UNIVERSAL HUMAN RIGHTS, supra note 2, at 1. Id. Id. Id. at 122.

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To overcome the presumption of universality, one would have to show that a vision of human nature or society was both incompatible with universal human rights and morally defensible.39 So-called non-Western conceptions of human rights are not conceptions of human rights at all, but alternative conceptions of human dignity.40 All societies have conceptions of human dignity, but the concept of human rights emerged only in the modern West, principally in response to the rise of modern states and modern markets.41 Similar changes in virtually all areas of the world have given human rights a nearly universal contemporary applicability. Human rights require liberal or social-democratic regimes, but variations in the details of implementation may be allowed, and even required, in order to accommodate valued cultural practices, provided that these practices are not fundamentally incompatible with universal human rights.42 Human rights, for Donnelly, arise from the inherent dignity of the human being, and are needed for a life worthy of a human being.43 They also arise from human action, and are not given to man by God or Nature.44 They represent a choice of a particular moral vision of human potentiality.45 When human rights claims have brought legal and political practice into line with their demands, they will have created the type of person posited in that moral vision.46 Without the enjoyment of the objects of human rights, Donnelly claims, one is almost certain to be alienated from ones moral nature.47 Donnellys conception of human rights is thus based on secular humanism. In this, it conforms with most contemporary, Western, academic moral and political philosophy, but it is question-begging in that it assumes the inappropriateness of theocentric conceptions of human dignity and human rights. Donnelly admits that it is difficult to justify human rights philosophically.48 This might be a serious defect in a theory of human rights, he admits, if there were substantial disagreement about what human rights there were.49 There is, fortunately, a remarkable international normative consensus on the list of rights . . . based on a plausible and attractive theory of

39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49.

Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id.

at 1, 912, 23, 122. at 2. at 3. at 17. at 17. at at at at 18. 19. 21. 23.

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human nature.50 The verbal acceptance of this list by most states, he says, is a prima facie indication of the attractiveness of the underlying moral vision.51 There are societies, Donnelly acknowledges, that seek to realize human dignity without the concept of human rights, but these alternative conceptions of human dignity amount to challenges to the idea of human rights.52 Muslims, for example, are required to treat others with respect and dignity, but the basis for these injunctions are divine commands that establish only duties, not human rights. The social and political precepts of Islam, Donnelly acknowledges, reflect a strong concern for human good and human dignity.53 Such a concern is a prerequisite for the concept of human rights, but it is not equivalent to the recognition of human rights. To incorporate non-Western understandings and practices with respect to human rights would come dangerously close to destroying or denying human rights as they have been understood.54 Donnelly assumes, contrary to the approaches of An-Naim and Othman, that non-Western understandings are to be incorporated into the discourse of human rights rather than vice versa, and that non-Western understandings would undermine the concept of human rights.55 Donnelly has recently recognized that Muslims have developed Islamic doctrines of human rights that are strikingly similar in substance to the Universal Declaration.56 This appears to represent a shift in his position, because he now implicitly acknowledges that Islamic conceptions of human dignity include, not only the prerequisites for the concept of human rights, but also the potential for developing it. This acknowledgment brings Donnelly closer to An-Naim and Othman. Donnelly concedes that, in small traditional communities, many of the values that are protected in the West by human rights are protected by other means,57 and that the traditional conception of human dignity might be superior to that of human rights liberalism. Perhaps most people would prefer regulated, secure social roles with their concomitant sense of belonging to autonomy and its attendant insecurities. He argues, however, that in most places in the contemporary world modernization has separated

50. 51. 52. 53. 54. 55. 56. 57.

Id. Id. Id. at 50. Id. at 5152. Id. at 58. Id. DONNELLY, The Universal Declaration Model, supra note 34, at 9. See also JACK DONNELLY, UNIVERSAL HUMAN RIGHTS, supra note 2, at 75. DONNELLY, UNIVERSAL HUMAN RIGHTS, supra note 2, at 59.

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individuals from the small, supportive community, and left them unprotected from assaults on their dignity by modern social, economic and political institutions.58 In this situation, human rights are necessary to protect human dignity.59 The needs of human dignity in developing countries today are largely the same as they were in past centuries in the West. In such circumstances, human rights appear to be a natural response to changing conditions, a logical and necessary evolution of the means to realize human dignity.60 The claim that human rights appear to be a necessary evolution seems inconsistent with Donnellys belief that human rights represent a social choice of a particular moral vision of human potentiality.61 If responses to the threats to human dignity posed by modernity are chosen, then religious alternatives to human rights may be chosen, and cannot be defeated by the appeal to modernity alone. Donnelly defends human rights universalism against certain forms of relativism. He sees relativism as cultural, but does not address the particular challenge of religion. Universal human rights standards, he says, serve as a check on potential excesses of relativism.62 Nonetheless, certain types of moral variation are justifiable on grounds of the goods of diversity, self-determination, and tolerance. Human nature itself is partly a sociocultural product, and consequently variable.63 The cultural variability of human nature not only permits, but also requires, significant allowance for cross-cultural variations in human rights.64 Donnelly argues that respect for autonomous moral communities demands internal evaluations of their cultures, but, he says, to rely on internal judgements alone abrogates ones moral responsibilities as a member of the cosmopolitan moral community.65 He associates these with the inherent universality of basic moral precepts, at least as we understand morality in the West.66 We simply do not believe, he maintains, that our moral precepts are for us and us alone.67 He then cites Kantian and other deontological moral theories, utilitarianism, and human rights theories. Our moral precepts are our moral precepts. As such, they demand obedience of us.68 At some point we must say that cultures that are not in

58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68.

Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id.

at 60. at at at at at at at 17. 109. 11112. 112. 114. 116. 116.

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conformity with our precepts are wrong.69 Donnelly concedes that Western morality is diverse, but does not acknowledge that the Western philosophies that he cites have different implications for human rights.70 His argument moves from a cosmopolitan affirmation of universality to a Western moral rejection of incompatible moralities. This ends as a dogmatic affirmation of the universal applicability of the Western conception of human rights that provides little argument against either Western or non-Western opponents, apart from the not entirely convincing claim that human rights are necessary to protect human dignity under modern conditions.71

IV. THE RELIGIOUS POINT OF VIEW Donnelly seeks to strike a balance between the universality of human rights and the demands of culture, but, in his analysis, culture makes legitimate demands primarily if it protects human dignity. His conception of human rights presupposes a philosophical anthropology, although he admits that it is difficult to defend one convincingly.72 His solution to this problem is twofold: first, he claims that different philosophies can support human rights; and secondly, he appeals to the international consensus, although he allows that consensus as such does not defend a moral position adequately.73 This approach would not refute arguments that either respect human dignity without recognizing human rights or dispense with human dignity. Some religions emphasize the sinfulness or degraded nature of human beings. The point of some religions is not to protect human dignity, which they may deem to be impossible or undesirable, but to save souls or to unite with the cosmos. To such religions Donnelly can say only that our values are our values, but this rather Rortyan approach seems to give up on dialogue too quickly.74 Donnelly follows the UN in believing that a secular approach to human rights is adequate, even necessary, in view of the worlds diversity of religious and philosophical beliefs. This assumes, however, that secularism is neutral between these beliefs. This is precisely what some religious believers dispute. Donnelly acknowledges that religions such as Islam challenge the concept of human rights, but his principal response to this

69. 70. 71. 72. 73. 74.

Id. Id. Id. Id. at 2223. Id. at 2324. See Richard Rorty, Human Rights, Rationality, and Sentimentality, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 1993 11134 (Stephen Shute & Susan Hurley eds., 1993).

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challenge is to claim that modern institutions threaten human dignity, and that the concept of human rights is, at least in most circumstances, the best, or the only, adequate protection against the threat.75 He does concede occasionally that other cultures may sometimes do this better.76 But he does not address the possibility that the appeal of religions such as Islam may be precisely that they seem to their adherents to protect human dignity under modern conditions, especially the modern condition of Western economic, political, and cultural hegemony. Donnelly accepts these as either inevitable or desirable.77 Dignity and consensus do most of the theoretical work for Donnellys human rights, but these leave human rights vulnerable to those who believe, as he does sometimes, that dignity is better protected with different cultural and institutional measures, and who dissent from the international consensus on human rights. Donnellys appeal to consensus is vulnerable to an objection from the point of view of salvationist religions. If there is a conflict between international human rights law and what a believer holds is necessary for eternal salvation, it would be both irrational and impious to accord priority to the law. It is true that international human rights law recognizes the right to freedom of conscience and religion, but it is silent on conflicts between religion and other human rights. The claims of conscience are, historically and logically, stubborn obstacles to contradictory demands of universal human rights. Donnellys claim that the concept of human rights emerged in the West as a response to the modern state and modern capitalism suggests that the concept has always been a secular solution to a set of secular problems.78 This is historically inaccurate. The concept of human rights emerged in the West, to an important extent, as a religious response to a set of problems that was both religious and political at a time when religion and politics were inseparable. Gradually, the concept became secularized. The story of the secularization of human rights in the West is an important part of an informed dialogue between contemporary secularists and religious believers about the universality of human rights.

75. 76. 77. 78.

Id. Id. Id. Id.

at at at at

60. 59. 5960. 5960, 1046.

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V. THE HIDDEN GOD IN HUMAN RIGHTS Donnelly finds the roots of the Western approach to human rights in the seventeenth century, particularly in England.79 He says that a fully developed, liberal, natural-rights conception of politics had become well established in English political debate by the time of John Lockes Two Treatises of Government. He describes the Second Treatise as one of the standard sources of the conventional conception of human rights.80 Donnelly refers to Lockes two treatises, but moves swiftly to a reading only of the second treatise. Donnelly mentions, vaguely, the brief introduction of the Second Treatise.81 This introduction, however, summarizes the argument of the First Treatise, which is a critique of the biblical interpretation proposed by Sir Robert Filmer.82 Locke disputed Filmer s interpretation of the Bible because, while Filmer had used the Bible to defend absolute monarchy, Locke used it to defend natural rights and limited government. By ignoring the First Treatise, Donnelly suppresses the religious character of Lockes conception of natural rights. According to Donnelly, the Second Treatise begins by arguing that men are naturally in a state of perfect freedom and equality, and that each person has natural rights to freedom and equality.83 Locke actually wrote that men were naturally in a state of perfect freedom to order their actions, and dispose of their possessions and persons as they thought fit, within the bounds of the Law of Nature.84 This was also a state of equality, there being nothing more evident than that creatures of the same species born to the same advantages of nature should be equal without subordination, unless the Lord and Master of them all should, by any manifest declaration of his will, set one above another, and confer on him by an evident and clear appointment an undoubted right to dominion and sovereignty.85 Thus, Locke maintained that the natural freedom of men was bounded by the Law of Nature, the source of which, in his philosophy, was God. He also said that men were naturally equal, unless God had set one above another by any manifest declaration of his will.86 The Second Treatise, therefore,

79. 80. 81. 82. 83. 84. 85. 86.

Rorty, supra note 74, at 89. Id. Id. JOHN LOCKE, TWO TREATISES OF GOVERNMENT 28586 (1970). DONNELLY, UNIVERSAL HUMAN RIGHTS, supra note 2, at 89. LOCKE, TWO TREATIES, supra note 82, at 287. Id. Id.

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set its theory of natural rights within a Christian, natural-law philosophical framework. Donnelly identifies paragraph seven of the Second Treatise as the start of Lockes discussion of natural rights.87 This is correct, but again omits the religious argument, which is clear from a passage in paragraph six. Here Locke said that the state of nature had a law of nature to govern it which obliges everyone, and Reason, which is that law, teaches all mankind who will consult it that no-one ought to harm another in his life, health, liberty, or possessions.88
For men being all the workmanship of one omnipotent and infinitely wise maker, all the servants of one sovereign master, sent into the world by his order and about his business, they are his property, whose workmanship they are, made to last during his, not one another s pleasure.89

Paragraph seven then introduces the concept of rights by saying that, in order to restrain all men from invading others rights and to ensure that the law of nature is observed, the execution of the law of nature is put into every mans hands so that everyone has a right to punish transgressors of the law to such a degree as may hinder its violation.90 We should note carefully the logic of this important moment in the history of the Western theory of human rights. The argument begins, not with rights, but with the obligation of everyone to obey the law of nature. This obligation is not to harm the life, health, liberty, or possessions of others. The ground of this obligation is that all men are the workmanship of God, his servants, and his property, and are consequently made to last during his pleasure. This obligation not to harm others, Locke assumed, entailed the right of everyone not to be harmed. Locke introduced the concept of rights almost casually in a discussion of Gods purpose in creating mankind, and the consequent obligations of men to God and to each other. Since the Western origin of the concept of human rights is often said to undermine its universality, it is noteworthy that this origin was monotheistic, and may consequently provide common, cross-cultural ground at least among monotheists. This provides a starting-point for a dialogue on human rights with Muslims. In discussing Lockes contribution to the Western conception of human rights, Donnelly ignores Lockes theory of religious toleration that was perhaps as important as his Second Treatise. Lockes arguments for religious toleration were partly pragmatic and partly those of religious principle.

87. 88. 89. 90.

DONNELLY, UNIVERSAL HUMAN RIGHTS, supra note 2, at 89. LOCKE, TWO TREATIES, supra note 82, at 289. Id. Id.

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Pragmatically, he argued that toleration was more conducive to civil peace than the attempt to suppress dissent. Christian principles recognized nothing as more important than individual salvation. Religious conflict created uncertainty, and the individual had to seek salvation amidst this uncertainty. God had, however, endowed man with reason so that he could discriminate truth from error, and thereby discover the path to salvation. There were two reasons why each individual had to do this for himself. The first was that religious duty was owed to God, and the commands of the state might be incompatible with that duty. The second was that salvation required sincere religious belief, and political coercion could produce only outward conformity. Locke advocated freedom of conscience, therefore, not from religious indifference, but from religious principle. The equality of rights in Lockes political theory is based on the equality of religious duties. Freedom of thought was necessary to acquire religious truth, which was in turn necessary to fulfil ones religious duties. The Christian duty of religious toleration (which Locke would not extend to Roman Catholics and atheists) provided a ground of the individual right to freedom.91 The development of human rights in the West, therefore, had its origin, not only in secular concerns with modern states and modern markets, but also with the problem of religious obligation in a world of religious diversity and political authoritarianism. This does not dissolve problems arising from the relation between contemporary, secular, humanist conceptions of human rights and religious challengers, but it does show that theocentric, duty-based moralities have the potential to develop robust conceptions of human rights. Thus, Donnellys contrast between Western and non-Western moral theories is somewhat overdrawn.

VI. THE SECULARIZATION OF NATURAL RIGHTS The Lockean, theocentric conception of natural rights was weakened and secularized in the following century in ways that were complex, gradual, and incomplete. Intractable disputes about religious truth led some to believe that Gods will was beyond our understanding, and that morality must therefore be secular. New Testament Christianity seemed to be the religion of the poor and the powerless, whereas the Christian Church had become associated with political power and wealth, and thus its legitimacy, judged by Christian standards, was subject to doubt. The Christian claim to

91.

JOHN LOCKE, A LETTER CONCERNING TOLERATION (1794, 1997); JOHN DUNN, THE POLITICAL THOUGHT OF JOHN LOCKE: AN HISTORICAL ACCOUNT OF THE ARGUMENT OF THE TWO TREATISES OF GOVERNMENT (1969); JOHN MARSHALL, JOHN LOCKE: RESISTANCE, RELIGION AND RESPONSIBILITY (1994).

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the moral high ground was also called into question by the cruelty involved in religious persecution.92 As official Christianity became epistemologically, politically, and morally vulnerable, science and mathematics seemed to offer epistemic security and liberation from superstition, dogma, and the oppression of priests and rulers claiming divine legitimation. The attempts by the great philosophers of the Enlightenment to reconcile Christianity and science in various ways added philosophical to religious confusion, while society enjoyed the practical benefits of scientific and technological progress. The discourse of rights could still draw on Christian, natural-law sources for its legitimacy, but increasingly its practical concerns were secular.93 In addition, increasing knowledge both of classical, Greco-Roman civilization and of non-European cultures provided alternatives to Christianity. Machiavelli had already pioneered a neo-pagan political theory. In the eighteenth century European intellectuals could look, not only back to Greece and Rome but also outside Europe, for alternatives to Christian politics. This turn of European thought would have mixed results for the idea of universal human rights, as it opened the door to cultural relativism, and thereby created the conditions for throwing the natural-rights baby out with the Christian, universalist bathwater. Both neo-classicism and cultural relativism were means to weakening the hegemony of Christianity, however, and so religion increasingly became, not the source of truth, but the object of scientific inquiry. The religion of society would, in the nineteenth century, become the sociology of religion.94 The French Revolution did its best to wreck the remaining, tenuous connection between religion and the Rights of Man that existed at the end of the eighteenth century.95 The violence and disorder of the Revolution discredited the concept of natural rights without rehabilitating religion. For some critics the problems of the concept derived not from its atheistical character, but from its supposed anti-social nature and its unscientific status. The Revolution placed the question of social order at the top of the intellectual agenda, and the answer was believed to lie in the field of social

92.

93. 94. 95.

JONATHAN I. ISRAEL, RADICAL ENLIGHTENMENT: PHILOSOPHY AND MAKING OF MODERNITY 16501750 (2001); RICHARD H. POPKIN, THE HISTORY OF SKEPTICISM FROM ERASMUS TO SPINOZA (1979); JEROME B. SCHNEEWIND, THE INVENTION OF AUTONOMY: A HISTORY OF MODERN MORAL PHILOSOPHY (1998); JOHN CHARLES ADDISON GASKIN, HUMES PHILOSOPHY OF RELIGION (1978). FREEMAN, supra note 2, at 2226. Id. at 2631. Thomas Paine wrote The Age of Reason to counter what he perceived to be the atheism of the French Revolution. His own conception of the Rights of Man was based on Quakerism and deism. See MARK PHILIP, PAINE 94113 (1989); GREGORY CLAEYS, THOMAS PAINE: SOCIAL AND POLITICAL THOUGHT 9091 (1989).

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science.96 Both religion and the Rights of Man were treated by social science as ideologies, that is, belief systems that had social significance but not truth value. The nineteenth century witnessed the relentless progress of science and technology in the West in the face of a defensive reaction by Christianity. The rise of industrial capitalism produced workers and socialist movements that claimed various economic, social and political rights. Although these demands were sometimes given a Christian justification, these movements were predominantly secular, and left behind the philosophy of natural law. Although the socialist movement was highly moralistic, there was no clear consensus on its philosophical basis. Forms of Kantianism and Utilitarianism jostled with non-philosophical practical demands, as well as ideas drawn from post-Hegelian philosophy and scientific positivism. Many of these ideas can be found in the thought of Karl Marx.97 By the end of the Second World War, religion still played a role in public life in the Western democracies, but politics had become predominantly pragmatic and secular. The United Nations was established with the primary goal of preventing war. Its commitment to human rights was based largely on a moral revulsion against Nazism,98 although it included the economic and social rights that had been advocated by workers and socialist movements. The language of human rights was the best available for this purpose, since other philosophies of the timesuch as Utilitarianism, scientific positivism, and existentialismdid not offer the same kind of protection from governmental abuse. Politically, human rights were expressed in secular terms in order to attract universal support. A proposal to include a reference to God was made during the drafting of the Universal Declaration, but rejected because it was not universally acceptable.99 The Universal Declaration grounded human rights in the secularized, neoKantian formula of the dignity and worth of the human person rather than on any particular religious doctrine. This formula is not itself very controversial, but its implications still are. Wars are not fought for and against the dignity and worth of the human person, but they are fought over what political practices and institutions this idea entails.100

96. 97.

98. 99. 100.

Id. STEVEN LUKES, MARXISM AND MORALITY 6170 (1985); Alice Erh-Soon Tay, Marxism, Socialism and Human Rights, in HUMAN RIGHTS 10412 (Eugene Kamenka & Alice Erh-Soon Tay eds., 1978); L.J. Macfarlane, Marxist Theory and Human Rights, 17 GOVT & OPPOSITION 41428 (1982). See JOHANNES MORSINK, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: ORIGINS, DRAFTING, AND INTENT (1999). Id. at 28490. Id. at 281328.

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VII. CONTEMPORARY HUMAN RIGHTS THEORY The most fundamental problem of contemporary human rights theory is that, while the concept of human rights seems necessary to oppose abuses of power, there is no consensus on its religious and philosophical foundations. Donnelly maintains that the concept of human rights is socially constructed.101 This provides no justification of the concept, however. He also says that there is a global consensus on the concept. Consensus also does not provide a justification, as he admits, and the extent of sincere consensus is doubtful, as he also admits.102 Donnelly finally justifies human rights by claiming that they are necessary to defend human dignity under modern conditions. Yet Donnelly concedes that human dignity can be defended in societies that lack the concept of human rights, and must consequently rely on the claim that the concept is necessary under modern conditions.103 This is controversial, especially since Donnelly associates human rights with Western secular liberalism. It is not likely to be persuasive for those who approach the subject from a religious perspective. Alan Gewirth maintains that human rights are derived from the necessary conditions of human action.104 In contrast with Donnelly, Gewirth argues that human rights can be justified neither by inter-governmental consensus nor by international human rights law.105 There are two reasons for this. First, if human rights were justified only by such a consensus or by this law, we would have to say that there were no human rights before this consensus or this law existed, and this is inconsistent with the definition of human rights as rights that all persons have insofar as they are human. Second, normative theory addresses the question as to which human rights international law ought to recognize, and the answer to this question must consist of a moral argument and not an appeal to convention or law.106 Gewirth surveys several arguments for human rights that he considers to be invalid. Human rights, for example, cannot be justified by appeal to intuition or to their supposed self-evident truth, because intuition and selfevidence can support diverse values.107 They cannot be justified by reference to their institutional basis, since that institutional basis itself requires justification. No empirical features of human nature, such as basic interests, can justify human rights, since moral conclusions cannot be

101. 102. 103. 104. 105. 106. 107.

DONNELLY, UNIVERSAL HUMAN RIGHTS, supra note 2, at 17. Id. at 23. Id. at 60. ALAN GEWIRTH, HUMAN RIGHTS: ESSAYS ON JUSTIFICATION AND APPLICATIONS x (1982). Id. at 4142. Id. Id. at 44.

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drawn from purely empirical premises.108 To appeal to the inherent dignity of the human person, as the Universal Declaration and Donnelly do, is question-begging as it assumes the validity of the principle that is to be justified. Similarly, Gewirth argues that Rawls contractarian argument is circular in that its egalitarian conclusions are included in its premises.109 There are many philosophical and religious moralities in the world with different, and often mutually inconsistent, contents. Nevertheless, Gewirth claims, a certain core meaning may be elicited from these moralities.110 Gewirth defines a morality as a set of categorically obligatory requirements for action that are addressed to every actual or prospective agent, and that are intended to further the interests, especially the most important interests, of persons other than the agent. The general subject matter of morality consists of actions.111 Certain objects are the proximate necessary conditions of action. It follows logically, he argues, that all rational agents must claim, at least implicitly, that they have rights to such objects. Every agent must regard his or her purposes as good, and must regard as necessary goods the proximate necessary conditions of his or her acting to achieve his or her purposes. This is a logical not a descriptive claim. The necessary conditions of action, on this account, are freedom and well-being.112 Freedom consists in controlling ones behavior by ones own unforced choice with knowledge of the relevant circumstances. Well-being consists in having the other general abilities and conditions required for agency. Freedom and well-being are the generic features of action.113 From the claim that freedom and well-being are necessary goods it follows, according to Gewirth, that agents have prudential rights to freedom and well-being.114 Prudential rights are justified entitlements that entail correlative duties. All agents must claim the prudential right to act so as to achieve their goals and claim the obligation of others at least not to interfere with such actions. Since agents must claim this right, qua agent, and not qua some particular kind of agent, they must logically accept that all agents have the generic rights. These generic rights are moral rights since they require of all agents that they take favorable account of the most important interests of all other agents. Since each agent has the same obligation to respect the generic rights of all other agents, all agents are equal in generic rights. Since all human beings are actual or prospective agents, the generic rights to

108. 109. 110. 111. 112. 113. 114.

Id. GEWIRTH, HUMAN RIGHTS, supra note 104, at 89. Id. at 45. Id. at 4546. Id. at 4647 Id. at 4548. GEWIRTH, HUMAN RIGHTS, supra note 104, at 49.

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freedom and well-being are human rights. Further, since all agents logically must accept that they have rights to freedom and well-being, the having of these rights is morally necessary.115 Human rights are, therefore, grounded in reason so that they have a normative necessity which transcends the variable contents of social customs and positive laws. Since human rights can conflict with each other, however, they are only prima facie rights. In cases of conflict, rights more necessary to action have priority over those that are less necessary: the right not to starve, for example, would trump the right not to be subject to discrimination. Violations of human rights are justified only when they are necessary to prevent more serious violations, rectify past violations or comply with social rules that sustain human rights. The rights to freedom and well-being entail such rights as those to political participation, to be free from discrimination and to the resources, such as health and education, that are necessary for action so far as possible.116 Gewirth differs strikingly from Donnelly in that he holds that human rights are logical entailments of morality as such and not contingent social constructions.117 His analysis is based on the claim that, notwithstanding the diversity of moral philosophies and religions in the world, there is a core meaning to all of them, and all require action and agency. Since, he argues, freedom and well-being are necessary to agency, the rights to freedom and well-being are universal human rights. Gewirth interprets freedom and well-being to entail a set of rights very similar to those to be found in the Universal Declaration. These rights therefore trump all beliefs, customs, and laws that are inconsistent with them.118 All cultures that seem to lack the concept of human rights must either have it implicitly or they are in a state of logical and moral error. Like Donnelly, Gewirth believes that everyone ought to be a liberal, social democrat, but Gewirth goes beyond Donnelly in claiming that this is logically necessary. Gewirth does not address the problem that those who hold illiberal moral beliefs, especially those who believe that they are absolutely required to hold them by the ultimate source of moral obligation (God), cannot, on pain of self-contradiction, be logically required to hold moral beliefs that are inconsistent with their considered convictions.119 If Gewirth insists that they can, he would violate his own principle of respect for the religious freedom of others. Gewirth can avoid

115. 116. 117. 118. 119.

Id. at 4954, 6869, 7475. Id. at 5558. Id. at 46. Id. at 2426. Gewirths exclusion of considered convictions from moral philosophy distinguishes his theory from that of Rawls. See JOHN RAWLS, A THEORY OF JUSTICE 20 (1972).

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this self-contradiction only by employing his method of according priority to the most important human rights.120 However, this move has two defects: 1) it probably does not offer a clear solution to the problem; and 2) worse, it is question-begging, since it assumes the correctness of Gewirths theory. Gewirths logic of action is resolutely secular, and is inapplicable to the eternal life, in which it is not certain that there is action. Despite its dialectical ingenuity, therefore, Gewirths theory is an implausible solution to the problem of cultural diversity.

VIII. EQUALITY AND TOLERATION IN INTERNATIONAL SOCIETY Whereas Gewirth and Donnelly require religion to bring itself into line with human rights, An-Naim and Othman meet the requirement of Maritain that human rights must be grounded in the various religions and philosophies of the world rather than vice versa. Their Islamic conceptions of human rights may, however, produce controversial versions of both Islam and human rights. To the extent that they do, their attempt at reconciliation fails, but there can be no guarantee that all conceptions of human rights will be compatible with all religious beliefs. The discourse of contemporary Western political philosophy is now predominantly secular. The problem for human rights theory then is how to construct a universal theory that recognizes the importance of diverse religions in the world, but is not itself religious. John Rawls has attempted to solve this problem from a Western, liberal perspective. His theory of justice as fairness considers a political system to be fair if everyone would consider it to be so when thinking about it impartially, that is, without giving priority to their own interests.121 Gewirth criticizes Rawls for inferring egalitarian conclusions from egalitarian premises, but Rawls attempt to derive justice from impartiality is similar to Gewirths derivation of human rights from prudential rights: both begin with self-interested individuals and go on to derive conclusions about the rights and obligations of a society of such individuals.122 Rawlsian contractors agree on the principles of justice because they are supposed to decide on them while behind a veil of ignorance, where they know that they have interests, but do not know what those interests are. Gewirthian logicians recognize that their own claims to act for their own good entail the recognition of the same rights of others.

120. 121. 122.

GEWIRTH, HUMAN RIGHTS, supra note 104, at 5759. RAWLS, A THEORY OF JUSTICE, supra note 119, at 13637. GEWIRTH, supra note 104, at 47; Id. at 142.

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The theories of both Rawls and Gewirth are secular in the sense that they are not derived from a religious doctrine and require the state to be neutral among religious beliefs. Rawls emphasizes, however, that his theory is not secular in the sense that it favors secular over religious beliefs.123 Rawls theory has changed over time. In A Theory of Justice he was concerned to show that citizens could develop a sense of justice that would lead them to support the principles of justice.124 Later, he emphasizes the fact that modern democratic societies contain a pluralism of incompatible but reasonable comprehensive doctrines, such as religious faiths.125 This pluralism is the normal outcome of human reason under free institutions. Rawls differs strikingly from Gewirth on this point. Gewirth is a logical and moral monist: he argues that all rational agents are logically committed to a universal conception of human rights similar to that of the United Nations.126 Rawls holds that free reason leads different agents to different religious, philosophical, and moral beliefs.127 Gewirth holds that all these beliefs logically entail the same set of human rights. Rawls draws a more limited inference from the fact of philosophical pluralism.128 Rawls addresses the problem of pluralism by distinguishing between reasonable and unreasonable comprehensive doctrines. Comprehensive doctrines are reasonable if they respect the principles of liberal democracy and do not attempt to use state power to correct or punish those who live by other reasonable doctrines.129 Liberal justice requires toleration of all reasonable comprehensive doctrines, including those that are not liberal. This requires a distinction between political liberalism and comprehensive liberalism. Political liberalism requires respect for liberal principles in the political institutions of society. Comprehensive liberalism is based on the value of individual autonomy in all areas of life. However, this is only one comprehensive doctrine among the many that will be found in a free society. Political liberalism is neutral among different reasonable comprehensive doctrines, and is therefore neutral between comprehensive liberalism and non-liberal comprehensive doctrines.130 Rawls extends his liberal conception of justice to the society of peoples.131 This provides the principles of the foreign policies of reasonably

123. 124. 125. 126. 127. 128. 129. 130. 131.

See RAWLS, A THEORY OF JUSTICE, supra note 119; JOHNS RAWLS, POLITICAL LIBERALISM (1993). RAWLS, A THEORY OF JUSTICE, supra note 119, at 56777. RAWLS, POLITICAL LIBERALISM, supra note 123 at 36. GEWIRTH, HUMAN RIGHTS, supra note 104, at 5155. RAWLS, POLITICAL LIBERALISM, supra note 123 at 36. See Id.; See RAWLS, POLITICAL LIBERALISM, supra note 123, see also GERWITH, HUMAN RIGHTS, supra note 104. Id. at 6061. RAWLS, POLITICAL LIBERALISM, supra note 123. See JOHN RAWLS, THE LAW OF PEOPLES (1999).

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just, liberal peoples. As political liberalism recognizes the pluralism of comprehensive doctrines within democratic societies, so the liberal law of peoples recognizes the pluralism of comprehensive doctrines in the society of peoples. In the theory of justice individuals are equal in the original position, and they accord priority to equal liberty for individuals in the political institutions of society. In the law of peoples, however, Rawls insists that there must be a second original position in which the parties are not equal individuals, but the representatives of equal peoples. The law of peoples, therefore, recognizes the equality of peoples, but acknowledges that there are decent, non-liberal peoples that will not recognize the liberal-democratic principle of equal citizenship.132 Liberals are required by Rawls to tolerate and respect non-liberal peoples, provided that they are decent. Non-liberal societies are decent if their basic institutions meet certain conditions of political justice, including respect for human rights. However, they do not accept the liberal idea that persons have equal basic rights as citizens.133 They may, for example, privilege a certain religion, and accord certain advantages to those who subscribe to that religion. Such societies allow different voices to be heard appropriately in view of the religious and philosophical values of the society. They must take the fundamental interests of all groups into account, and Rawls suggests that the right to dissent in such societies would lead at least to improvements in the rights of the members of historically oppressed groups, such as women.134 Decent, non-liberal peoples are acceptable as members in good standing in a reasonable society of peoples. The liberal theory of the law of peoples does not prescribe principles of justice for decent peoples, but works out the principles of liberal foreign policy that are reasonable from a decent, non-liberal point of view.135 Rawls and Gewirth are at odds here, since Rawls conception of decent, non-liberal peoples is a component of his ideal, liberal theory of the law of peoples, and gives the supposed liberal principle of toleration of peoples priority over that of equality. Gewirth would require that the principle of equal rights determined the proper limits of toleration. Rawls argues that liberals ought to recognize societies that respect human rights, but not equal rights, as members in good standing of the society of peoples, on the basis of the liberal values of toleration, respect for cultural difference and the right to self-determination.136 He concedes that such societies are not fully just by liberal principles, but does not explain

132. 133. 134. 135. 136.

Id. Id. at 71. Id. at 75. Id. Id. at 5962.

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why justice, which in A Theory of Justice he said was the first virtue of social institutions, should yield to these other principles.137 The claim that human rights are liberal-democratic rights, he says, expands the class of human rights. Rawls restricts the category of human rights proper to those contained in Articles 318 of the Universal Declaration. He excludes thereby the rights to freedom of expression, association, and participation in government, as well as the prohibition on discrimination.138 He suggests that some other articles presuppose specific kinds of institutions.139 This is an unclear idea, because the human rights that he endorses, such as the right to a fair trial, require appropriate institutions, though not specific institutions, in the sense that they are compatible with considerable variation in institutional forms. Yet Rawls excludes such rights as those to work, medical care, education, and culture on the ground that they require specific institutions, but, in this, they are no different from some of the rights that he endorses: they require appropriate, but not uniform, institutions.140 Rawls also insists that decent societies must respect the human rights of women. This, he says, is not a peculiarly liberal idea but one that is common to all decent peoples.141 Religion cannot justify the subjection of women because basic human rights are involved. Rawls opposition to the subjection of women is, however, weakened by his refusal to endorse the human right not to be subject to discrimination on the ground of gender. Rawls emphasizes that the actual conditions of the world do not determine the ideal conception of the society of peoples, so it is difficult to see why he requires liberals to tolerate what he concedes to be less than ideal justice. His claim that reasonable pluralism is the outcome of the exercise of human reason under free institutions, and that his law of peoples simply extends this idea to the society of peoples, ignores the fact that nonliberal peoples are not fully free. The law of peoples requires liberal peoples to tolerate the political privileging of comprehensive doctrines, which is intolerable in liberal societies. Rawls had argued that individuals in the first original position would choose the principle of equal liberty of conscience, and that they would wish to avoid at almost any cost the social conditions that undermined the primary good of self-respect. In the second original position, however, these principles are not guaranteed.142 In accepting as decent societies in which the state enforces unequal human rights on the basis of a comprehensive doctrine, Rawls is surely going beyond what is

137. 138. 139. 140. 141. 142.

RAWLS, A THEORY OF JUSTICE, supra note 119, at 3. RAWLS, THE LAW OF PEOPLES, supra note 131, at 7980. Id. Id. Id. at 75. See KOK-CHOR TAN, TOLERATION, DIVERSITY, AND GLOBAL JUSTICE (2000).

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recognizable as liberalism, and his account of human rights is certainly less liberal, and more restrictive, than An-Naims Islamic account.

IX. CONCLUSIONS The concept of human rights is a moral, political, and legal idea that originated in Christian, natural-law philosophy, became secularized and was revived by the United Nations to articulate its opposition to Fascism, and to unite the world on a set of standards according to which governments are required to treat all human beings decently. It has widespread support in the contemporary world, but there is no agreement on its philosophical basis. This paper has addressed problems that arise when the principles of human rights come into conflict with religious principles to which some people are deeply committed. There is what Rawls calls an overlapping consensus between many religious beliefs and the principles of human rights, but the consensus is not complete. Human rights theory therefore has the task of reconciling religion and human rights so far as it is possible. Maritain argued that a concept of universal human rights would have to be rooted in different religions and philosophies. This may be a pragmatic or an epistemological argument. It may simply recognize the fact of pluralism or it may hold that there is an irreducibly diverse set of justifying principles. Gewirth argues that all these principles entail respect for a set of human rights similar to those of the UN. This prima facie implausible argument seems to be based on an illicit move from the claim that some minimal levels of freedom and well-being are necessary conditions of action, and therefore of moral action, according to any moral beliefs whatever, to the wider and more controversial claim that a set of rights and institutions much like those of Western liberal social democracy are logically required to be universal. This has the paradoxical and implausible consequence that many people are logically required to abandon their beliefs. This argument concludes, implausibly, that a logically coherent set of non-liberal beliefs is impossible, and it might have the empirical consequence of undermining the capacity for moral action of those who hold such beliefs at least as much as not having some of the rights that Gewirth holds to be universal. Rawls says, plausibly, that diversity of comprehensive doctrines is unavoidable. He also says, plausibly, that diversity of belief is the expected outcome of human freedom. The apparent consensus on human rights suppresses this diversity, or assumes too easily that it is compatible with human rights. Given the Western roots of human rights, there will probably be at least differences in the interpretation of human rights in different cultural contexts. Rawls is wrong, however, to say that civic inequality is

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consistent with human rights. There is now a very strong international consensus that racial discrimination is intolerable. Rawls believes that the subjection of women is undesirable. He argues, however, that discrimination on grounds of religion may be acceptable. Rawls liberalism is neutral with respect to religious belief, and it is therefore difficult to understand why he requires liberals to tolerate religious discrimination. He calls for toleration of non-liberal societies because toleration is a liberal principle, but, just for that reason, governmental discrimination on the ground of religion must be unacceptable. The diversity of the worlds cultures makes mutual respect and harmony among human beings and peoples difficult. From the point of view of one culture, another culture may seem unattractive and/or immoral and/or impious. Toleration is not always a virtue. It would be difficult now to construct a recognizably moral argument that would require or permit the toleration of genocide or racism. The Gewirthian and less controversial theories of human rights provide a solution to the problem of the limits of toleration: tolerate up to the point that you do not tolerate the violation of human rights. The problem is that there is no culturally neutral interpretation of human rights, if we cannot accept Gewirths controversial, and prepost-modernist claim that reason is supra-cultural. The concept of human rights has a strong intuitive appeal to many people in many different cultures insofar as it is designed to protect the most fundamental human interests, honor human dignity and provide the basis of peace and mutual respect among peoples. Yet scepticism about human rights is by no means restricted to non-Western cultural resistance to perceived neo-imperialist cultural practices. It exists at the heart of contemporary Western political philosophy.143 It is not the task of human rights theory to determine ultimate religious or philosophical truths, but to identify the rules that ought to govern the relations among persons with different beliefs.144 History shows both that reasonable persons can disagree on such rules and that many people are not reasonable. We can fight or we can reason. Since fighting is both intrinsically undesirable in normal conditions, and generally unsuited to establishing correct principles, there seems little alternative in addressing the problem of deep cultural differences about human rights, but to perform the patient examination of conflicting ideas with as much skill and as little prejudice as we can manage.

143. 144.

ONORA ONEILL, A QUESTION OF TRUST 1819 (2002). Peter Jones, Human Rights and Diverse Cultures: Continuity or Discontinuity?, in HUMAN RIGHTS AND GLOBAL DIVERSITY 37 (Simon Caney & Peter Jones eds., 2001).