2003 Hill Lecture: Religion, Secularism, and Human Rights

May 13, 2003

John Witte Jr., the Jonas Robitscher Professor of Law and Ethics and Director of Law and Religion Program Director of Centre for the Interdisciplinary Study of Religion, Emory Law School in Atlanta Georgia, presented the third annual "Hill Lecture" on Parliament Hill May 13, 2003.

Canadian born and Harvard educated legal scholar, Professor Witte is an internationally recognized scholar in the area of human rights and law. His particular focus has been the history of law in relation to religion and he has co-edited and written over 15 books.

An outstanding teacher, Professor Witte has, over the last few years, established the Law and Religion program at Emory Law School as one of the leading centre's in the world for analyzing law in relation the religions of the world—including Christianity, Judaism and Islam.

--

Annual Hill Lecture
Parliament Hill, Ottawa
May 13, 2003

I would like to divide my remarks into three parts:

First, I shall take a bit of stock of the state of religion and human rights around the globe today, and demonstrate why human rights norms need a human rights culture in order to be effective.

Second, I shall argue that religion must be an essential part of any human rights culture, and that the modern human rights movement is harming itself by ignoring religion.

Third, I shall argue, in turn, that human rights must be an essential teaching of modern religious traditions, and many modern religious traditions are harming themselves by ignoring human rights.

I. Religion and Human Rights Today

We turn first to the state of religion and human rights around the world today. Let's let Charles Dickens set the stage: "It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair."

Charles Dickens penned these famous words to describe the paradoxes of the eighteenth century French Revolution fought for the rights of man and citizen. These same words aptly describe the paradoxes of the twentieth century world revolution fought in the name of human rights and democratization for all.

The world has entered something of a Dickensian era in the past three decades (an Irwin Cotler apt phrase). We have seen the best of human rights protections inscribed on the books, but some of the worst of human rights violations inflicted on the ground. We have celebrated the creation of more than thirty new constitutional democracies since 1973, but lamented the eruption of more than thirty new civil wars. We have witnessed the wisest of democratic statecraft and the most foolish of autocratic belligerence. For every South African spring of hope, there has been a Yugoslavian winter of despair. For every season of peace, another season of war.

These Dickensian paradoxes of the modern human rights revolution are particularly striking when viewed in their religious dimensions.

On the one hand, the modern human rights revolution has helped to catalyze a great awakening of religion around the globe. In regions newly committed to democracy and human rights, ancient faiths once driven underground by autocratic oppressors, have sprung forth with new vigor. In the former Soviet bloc, for example, numerous Buddhist, Christian, Hindu, Jewish, Muslim, and other faiths have been awakened, alongside a host of exotic goddess, naturalist, and personality cults. In post-colonial and post-revolutionary Africa, these same mainline religious groups have come to flourish in numerous conventional and inculturated forms, alongside a bewildering array of exotic traditional and new groups.

One cause and consequence of this great awakening of religion around the globe is that the ambit of religious rights has been substantially expanded. In the past three decades, more than 200 major new international instruments and national constitutional provisions on religious rights have been promulgated—guaranteeing liberty of conscience, religious pluralism and equality, free exercise of religion, non-discrimination on religious grounds, autonomy for religious groups, among other norms.

On the other hand, this very same human rights revolution of the world has helped to catalyze new forms of religious and ethnic conflict, oppression, and belligerence, of tragic proportions. In some communities, such as the former Yugoslavia and Chechnya, local religious and ethnic rivals, previously kept at bay by a common oppressor, have converted their new liberties into licenses to renew ancient hostilities, with catastrophic results. In other communities, such as Sudan, Rwanda, and Zaire, ethnic nationalism and religious extremism have conspired to bring violent dislocation and death to hundreds of rival religious believers each year, and to persecution, false imprisonment, forced starvation, and savage abuses of thousands of others. In still other communities, in North America and Western Europe, political secularism and liberal nationalism have combined to threaten a sort of civil denial and deprivation to a number of religious believers, particularly "sects" and "cults" of high religious temperature or of low cultural conformity.

In Russia, and parts of Eastern Europe, Africa, and Latin America, this human rights revolution has brought on something of a new war for souls between indigenous and foreign religious groups. This is the most recent, and the most ironic, chapter in the Dickensian drama. With the political transformations of these regions in the past two decades, foreign religious groups were granted rights to enter these regions for the first time in decades. In the 1990s, they came in increasing numbers to preach their gospels, to offer their services, to convert new souls.

Initially, local religious groups welcomed these foreigners. Today, they have come to resent these foreign religions, particularly those from North America and Western Europe who assume a democratic human rights ethic. Local religious groups resent the participation in the marketplace of religious ideas that democracy assumes. They resent the toxic waves of materialism and individualism that democracy inflicts. They resent the massive expansion of religious pluralism that democracy encourages. They resent the extravagant forms of religious speech, press, and assembly that democracy protects.

A new war for souls has thus broken out in these regions—a war to reclaim the traditional cultural and moral souls of these new societies and a war to retain adherence and adherents to the indigenous faiths. In part, this is a theological war—as rival religious communities have begun actively to demonize and defame each other and to gather themselves into ever more dogmatic and fundamentalist stands. The ecumenical spirit of the previous decades is giving way to vicious new forms of religious balkanization. In part, this is a legal war—as local religious groups have conspired with their political leaders to adopt statutes and regulations restricting the constitutional rights of their foreign religious rivals. Beneath a shiny constitutional veneer of religious rights and freedom for all, a number of countries have come to develop a legal culture of overt favoritism of some faiths and overt oppression of others. Indeed, much of Eurasia, Eastern Europe, the Middle East, Africa, and Latin America seem to be at the dawn of a new era of religious establishments.

Exactly the same pattern now threatens to repeat itself anew in Afghanistan and Iraq: American missionaries stand poised to pounce on the new souls suddenly laid open to them. Local Islamic leaders talk boldly of mounting a counter crusade.

In these and other current religious and cultural conflicts, human rights are as much the problem, as they are the solution. In the current war for souls in Russia, for example, two absolute principles of human rights have come into direct conflict: the foreign religion's free exercise right to share and expand its faith versus the indigenous religion's liberty of conscience right to be left alone on its own territory. Or, put in Christian theological terms, it is one group's rights to abide by the Great Commission: "Go ye therefore, and make disciples of all nations" versus another group's right to insist on the Golden Rule: "Do unto others as you would have done unto you." Further rights talk alone cannot resolve this dispute.

Likewise, many of the nations given to the most belligerent forms of religious nationalism have ratified more of the international human rights instruments than the United States has, and have crafted more elaborate bills of rights than what appears in the Canadian Charter. Here, too, further rights talk alone is insufficient.

These paradoxes of the modern human rights revolution underscore an elementary, but essential, point—that human rights norms need a human rights culture to be effective. Declarations are not deeds. A form of words by itself secures nothing. Words pregnant with meaning in one culture may be entirely barren in another.

Human rights are not artifacts to be imported wholly formed from abroad; they must be sown and grown in local cultural and constitutional soils and souls. Human rights have little salience in societies that lack constitutional processes that will give them meaning and measure. They have little value for parties who lack basic rights to security, succor, and sanctuary, or who are deprived of basic freedoms of speech, press, or association. They have little pertinence for victims who lack standing in courts and other basic procedural rights to pursue apt remedies. They have little cogency in communities that lack the ethos and ethic to render human rights violations a source of shame and regret, restraint and respect, confession and responsibility, reconciliation and restitution. As we have moved from the first generation of human rights declaration following World War II to the current generation of human rights implementation, this need for a human rights culture has become all the more pressing.

II. Religion and Human Rights

Not only do human rights norms need a human rights culture to be effective. A human rights culture needs religion to be enduring. And here, we come to the second part of my argument: that religion, in all of its denominational multiplicity, must be given a much active role to place in the modern human rights revolution.

Many will consider this thesis to be fundamentally misguided. For even the great Religions of the Book do not speak unequivocally about human rights, and none has amassed an exemplary human rights record over the centuries. Their sacred texts and canons say much more about commandments and obligations than about liberties and rights. Their theologians and jurists have resisted the importation of human rights as much as they have helped in their cultivation. Their internal policies and external advocacy have helped to perpetuate bigotry, chauvinism, and violence as much as they have served to propagate equality, liberty, and fraternity. The blood of thousands is at the doors of our churches, temples, and mosques. The bludgeons of pogroms, crusades, jihads, inquisitions, and ostracisms have been used to devastating effect within and among these faiths.

Moreover, the modern cultivation of human rights in the West began in the 1940s when both Christianity and the Enlightenment seemed incapable of delivering on their promises. In the middle of this century, there was no second coming of Christ promised by Christians, no heavenly city of reason promised by enlightened libertarians, no withering away of the state promised by enlightened socialists. Instead, there was world war, gulags, and the Holocaust—a vile and evil fascism and irrationalism to which Christianity and the Enlightenment seemed to have no cogent response or effective deterrent.

The modern human rights movement was thus born out of desperation in the aftermath of World War II. It was an attempt to find a world faith to fill a spiritual void. It was an attempt to harvest from the traditions of Christianity and the Enlightenment the rudimentary elements of a new faith and a new law that would unite a badly broken world order. The proud claims of Article I of the 1948 Universal Declaration of Human Rights—"That all men are born free and equal in rights and dignity [and] are endowed with reason and conscience"—expounded the primitive truths of Christianity and the Enlightenment with little basis in post-War world reality. Freedom and equality were hard to find anywhere. Reason and conscience had just blatantly betrayed themselves in the gulags, battle fields, and death camps.

Though desperate in origin, the human rights movement grew precociously in the decades following World War II. Indeed, after the 1950s a veritable "human rights revolution" erupted. In America and Europe, this rights revolution yielded a powerful grassroots civil rights movement and a welter of landmark cases and statutes. In Africa and Latin America, it produced agitation, and eventually revolt, against colonial and autocratic rule. At the international level, the Universal Declaration of 1948 inspired new declarations, covenants, and conventions on more discrete rights, most notably the great 1966 Covenants. Academies throughout the world produced a prodigious new literature urging constant reform and expansion of the human rights regime.

Christian, Jewish, and other religious communities participated actively as midwives in the birth of this modern rights revolution, and special religious rights protections were at first actively pursued. Individual religious groups issued bold confessional statements and manifestoes on human rights shortly after World War II. Several denominations and budding ecumenical bodies joined Jewish NGOs in the cultivation of human rights at the international level. The Free Church tradition played a critical role in the civil rights movement in America and beyond, as did the social gospel and Christian democratic movements in Europe and Latin America.

After expressing some initial interest, however, leaders of the rights revolution consigned religious groups and their particular religious rights to a low priority. Freedom of speech and press, parity of race and gender, provision of work and welfare captured most of the energy and emoluments of the rights revolution. After the 1960s, academic inquiries and activist interventions into religious rights and their abuses became increasingly intermittent and isolated. New constitutional laws in the United States and Western Europe began to demand that laws and legal arguments be grounded in secular purposes and serve secular ends in order to pass constitutional muster. The rights revolution—both in international law and in domestic law—seemed to be passing religion by.

This deprecation of the special role and rights of religions from the mid-1960s onwards has introduced several distortions into the theory and law of human rights.

First, without religion, many rights are cut from their roots. The right to religion, Georg Jellinek wrote a century ago, is "the mother of many other rights." For the religious individual, the right to believe leads ineluctably to the rights to assemble, speak, worship, proselytize, educate, parent, travel, or to abstain from the same on the basis of one's beliefs. For the religious association, the right to exist invariably involves rights to corporate property, collective worship, organized charity, parochial education, freedom of press, and autonomy of governance. To ignore religious rights is to overlook the conceptual, if not historical, source of many other individual and associational rights.

Second, without religion, the regime of human rights becomes infinitely expandable. The classic faiths of the Book adopt and advocate human rights in order to protect religious duties. A religious individual or association has rights to exist and act not in the abstract but in order to discharge discrete religious duties. Rights and duties properly belong together in most religious traditions. To speak of one without the other is ultimately destructive. Rights without duties to guide them quickly become claims of self-indulgence. Duties without rights to exercise them quickly become sources of deep guilt. Religious traditions, and their particular religious rights claims, provide the best examples of the organic linkage between rights and duties. Without them, rights become abstract, with no obvious limit on their exercise or their expansion.

Third, without religion, human rights becomes too captive to Western libertarian ideals. Many religious traditions—whether of Buddhist, Confucian, Hindu, Islamic, Orthodox, Reformed, Taoist, or Traditional stock—cannot conceive of, nor accept, a system of rights that excludes religion. Religion is for these traditions inextricably integrated into every facet of life. Religious rights are, for them, an inherent part of rights of speech, press, assembly, and other individual rights as well as ethnic, cultural, linguistic, and similar associational rights. No system of rights that ignores or deprecates this cardinal place of religion can be respected or adopted.

Fourth, without religion, the state is given an exaggerated role to play as the guarantor of human rights. The simple state vs. individual dialectic of many modern human rights theories leaves it to the state to protect and provide rights of all sorts. In reality, the state is not, and cannot be, so omnicompetent. Numerous "mediating structures" stand between the state and the individual, religious institutions prominently among them. Religious institutions, among others, play a vital role in the cultivation and realization of rights. They can create the conditions (sometimes the prototypes) for the realization of first generation civil and political rights. They can provide a critical (sometimes the principal) means to meet second generation rights of education, health care, child care, labor organizations, employment, artistic opportunities, among others. They can offer some of the deepest insights into norms of creation, stewardship, and servanthood that lie at the heart of third generation rights.

Fifth, without religion, human rights norms have no enduring narratives to ground them. There is, of course, some value in simply declaring human rights norms of "liberty, equality, and fraternity" or "life, liberty, and property"—if for no other reason than to pose an ideal against which a person or community might measure itself, to preserve a normative totem for later generations to make real.

But ultimately these abstract human rights ideals of the good life and the good society depend upon the visions and values of human communities and institutions to give them content and coherence, to provide what Jacques Maritain called "the scale of values governing the[ir] exercise and concrete manifestation." It is here that religion must play a vital role. Religion is an ineradicable condition of human lives and human communities. Religions invariably provide many of the sources and "scales of values" by which many persons and communities govern themselves. Religions inevitably help to define the meanings and measures of shame and regret, restraint and respect, responsibility and restitution that a human rights regime presupposes. Religions must thus be seen as indispensable allies in the modern struggle for human rights. To exclude them from the struggle is impossible, indeed catastrophic. To include them—to enlist their unique resources and to protect their unique rights—is vital to enhancing the regime of human rights and to easing some of the worst paradoxes that currently beset it.

The challenge of this new century is to transform religious communities from midwives to mothers of human rights—from agents that assist in the birth of rights norms conceived elsewhere to associations that give birth and nurture to their own unique contributions to human rights norms and practices.

The ancient teachings and practices of Judaism, Christianity, and Islam have much to commend themselves to the human rights regime. Each of these traditions is a religion of revelation, founded on the eternal command to love one God, oneself, and all neighbors. Each tradition recognizes a canonical text as its highest authority—the Torah, the Bible, and the Qur'an. Each tradition designates a class of officials to preserve and propagate its faith, and embraces an expanding body of authoritative interpretations and applications of its canon. Each tradition has a refined legal structure—the Halacha, the canon law, and the Shari'a—that has translated its enduring principles of faith into evolving precepts of works. Each tradition has sought to imbue its religious, ethical, and legal norms into the daily lives of individuals and communities. Each tradition has produced a number of the basic building blocks of a comprehensive theory and law of religious human rights—conscience, dignity, reason, liberty, equality, tolerance, love, openness, responsibility, justice, mercy, righteousness, accountability, covenant, community, among other cardinal concepts. Each tradition has developed its own internal system of legal procedures and structures for the protection of rights, which historically have and still can serve as both prototypes and complements to secular legal systems. Each tradition has its own advocates and prophets, ancient and modern, who have worked to achieve a closer approximation of human rights ideals.

III. Human Rights in Religion

It is essential, however, that religious communities live up to these ideals. And with this we come to my third argument, that human rights must be given a more prominent place in the theological and ethical discourse and ministry of modern religions.

Many would consider this thesis to be as misguided as the thesis I just argued about the necessary role of religion in human rights.

It is one thing for religious bodies to accept the freedom and autonomy that a human rights regime allows. This at least gives them unencumbered space to pursue their divine callings. It is quite another thing for religious bodies to import human rights within their own polities and theologies. This exposes them to all manner of unseemly challenges.

Human rights norms, religious skeptics argue, unduly challenge the structure of religious bodies. While human rights norms teach liberty and equality, many religious bodies teach authority and hierarchy. While human rights norms encourage pluralism and diversity, many religious bodies require orthodoxy and uniformity. While human rights norms teach freedoms of speech and petition, several religions teach duties of silence and submission. To draw human rights norms into the structures of religion would only seem to embolden members to demand greater access to religious governance, greater freedom from religious discipline, greater latitude in the definition of religious doctrine and liturgy. So why import them?

Moreover, human rights norms challenge the spirit of religious bodies. Human rights norms, religious skeptics argue, are the creed of a secular faith born of Enlightenment liberalism, humanism, and rationalism. Human rights advocates regularly describe these norms as our new "civic faith," "our new world religion," "our new global moral language." The French jurist, Karel Vasak, has pressed these sentiments into a full and famous confession of the secular spirit of the modern human rights movement:

The Universal Declaration of Human Rights [of 1948]," Vasak wrote, "like the French Declaration of the Rights of Man and Citizen in 1789, has had an immense impact throughout the world. It has been called a modern edition of the New Testament, and the Magna Carta of humanity, and has become a constant source of inspiration for governments, for judges, and for national and international legislators.... By recognizing the Universal Declaration as a living document ... one can proclaim one's faith in the future of mankind.

In demonstration of this new faith, Vasak converted the "old trinity" of "liberty, equality, and fraternity" taught by the French Revolution into a "new trinity" of "three generations of rights" for all humanity. The first generation of civil and political rights elaborates the meaning of liberty. The second generation of social, cultural, and economic rights elaborates the meaning of equality. The third generation of solidarity rights to development, peace, health, the environment, and open communication elaborates the meaning of fraternity. Such language has become not only the lingua franca but also something of the lingua sacra of the modern human rights movement.

In the face of such an overt confession of secular liberalism, religious skeptics conclude, a religious body would do well to resist the ideas and institutions of human rights.

Both these skeptical arguments, however, presuppose that human rights norms constitute a static belief system born of Enlightenment liberalism. But the human rights regime is not static. It is fluid, elastic, open to challenge and change. The human rights regime is not a fundamental belief system. It is a relative system of ideas and ideals that presupposes the existence of fundamental beliefs and values that will constantly shape and reshape it. The human rights regime is not the child of Enlightenment liberalism, nor a ward under its exclusive guardianship. It is the ius gentium of our times, the common law of nations, which a variety of Hebrew, Greek, Roman, Christian, and Enlightenment movements have historically nurtured in the West and which today still needs the constant nurture of multiple communities.

I use the antique term ius gentium advisedly—to signal the distinctive place of human rights as "middle axioms" in our moral and political discourse. Historically, Western writers spoke of an hierarchy of laws—from natural law (ius naturale), to common law (ius gentium), to positive law (ius civile). The natural law was the set of immutable principles of reason and conscience, which are supreme in authority and divinity and must always prevail in instances of dispute. The positive law was the set of enacted laws and procedures of local political communities, reflecting their immediate policies and procedures.

Between these two sets of norms was the ius gentium, the set of principles and customs common to several communities and often the basis for treaties and other diplomatic conventions. The contents of the ius gentium did gradually change over time and across cultures—as new interpretations of the natural law were offered, and as new formulations of the positive law became increasingly conventional. But the ius gentium was a relatively consistent body of principles by which a person and a people could govern themselves.

This antique typology helps us to understand the intermediate place of human rights in our hierarchy of legal norms today. Human rights are the ius gentium of our time, the middle axioms of our discourse. They are derived from and dependent upon the transcendent principles that religious traditions (more than any other groups) continue to cultivate. And they inform, and are informed by, shifts in the customs and conventions of sundry state law systems. These human rights norms do gradually change over time: just compare the international human rights instruments of 1948 with those of today. But human rights norms are a relatively stable set of ideals by which a person and community might be guided and judged.

This antique typology also helps us to understand the place of human rights within religion. My argument that human rights must have a more prominent place within religions today is not an attempt to import libertarian ideals into their theologies and polities. It is not an attempt to herd Trojan horses into churches, synagogues, mosques, and temples in order to assail secretly their spirit and structure.

My argument is, rather, that religious bodies must again assume their traditional patronage and protection of human rights, bringing to this regime their full doctrinal vigor, liturgical healing, and moral suasion. Using our antique typology, religious bodies must again nurture and challenge the middle axioms of the ius gentium with the transcendent principles of the ius naturale.

This must not be an effort to monopolize the discourse, nor to establish by positive law a particular religious construction of human rights. Such an effort must be part of a collective discourse of competing understandings of the ius naturale—of competing theological views of the divine and the human, of sin and salvation, of individuality and community—that will serve constantly to inform and reform, to develop and deepen, the human rights ideals now in place.

A number of religious traditions, of late, have begun this process of reengaging the regime of human rights, of returning to their traditional roots and routes of nurturing and challenging the human rights regime. This process has been incremental, clumsy, controversial, at times even fatal for its proponents. But the process of religious engagement of human rights is now under way—in Christian, Islamic, Judaic, Buddhist, Hindu, and Traditional communities alike. Something of a new "human rights hermeneutic" is slowly beginning to emerge among modern religions.

This is, in part, a "hermeneutic of confession." Given their checkered human rights records over the centuries, religious bodies have begun to acknowledge their departures from the cardinal teachings of peace and love that are the heart of their sacred texts and traditions. Christian churches have taken the lead in this process—from the Second Vatican Council's confession of prior complicity in authoritarianism to the contemporary church's repeated confessions of prior support for apartheid, communism, racism, sexism, fascism, and anti-Semitism. Other communities have also begun this process.

This is, in part, a "hermeneutic of suspicion" (in Paul Ricoeur's phrase). Given the pronounced libertarian tone of many recent human rights formulations, a number of religious writers urge that we not idolize or idealize these formulations. We must not be bound by current taxonomies of "three generations of rights" rooted in liberty, equality, and fraternity, several writers argue. Common law formulations of "life, liberty or property," canon law formulations of "natural, ecclesiastical and civil rights," or Protestant formulations of "civil, theological, and pedagogical uses of rights" might well be more apt classification schemes. We must not accept the seemingly infinite expansion of human rights discourse and demands. Rights bounded by moral duties, by natural capacities, or by covenantal relationships might well provide better boundaries to the legitimate expression and extension of rights.

This is, in part, a "hermeneutic of history." While acknowledging the fundamental contributions of Enlightenment liberalism to the modern rights regime, a number of religious writers have also pressed us to see the deeper genesis and genius of many modern rights norms in religious texts and traditions that antedate the Enlightenment by centuries, sometimes millennia. They have urged a return to these religious sources. In part, this a return to ancient sacred texts freed from the casuistic accretions of generations of jurists and freed from the cultural trappings of the communities in which these traditions were born. In part, this is a return to slender streams of theological jurisprudence that have not been part of the mainstream of the religious traditions, or have become diluted by too great a commingling with it. In part, this is a return to prophetic voices of dissent, long purged from traditional religious canons, but, in retrospect, prescient of some of the rights roles that the tradition might play today.

IV. Final Reflections

A number of distinguished commentators have recently encouraged the abandonment of the human rights paradigm altogether—as a tried and tired experiment that is no longer effective, even a fictional faith whose folly has now been fully exposed.

Others have bolstered this claim with cultural critiques—that human rights are instruments of neo-colonization which the West uses to impose its values on the rest, even toxic compounds that are exported abroad to breed cultural conflict, social instability, religious warfare and thus dependence on the West.

Others have added philosophical critiques—that rights talk is the wrong talk for meaningful debate about deep questions of justice, peace, and the common good.

Still others have added theological critiques—that the secular beliefs in individualism, rationalism, and contractarianism inherent to the human rights paradigm cannot be squared with cardinal biblical beliefs in creation, redemption, and covenant.

Such criticisms properly soften the overly-bright optimism of some human rights advocates. They properly curb the modern appetite for the limitless expansion and even monopolization of human rights in the quest for toleration, peace, and security. And they properly criticize the libertarian accents that still too often dominate our rights talk today.

But such criticisms do not support the conclusion that we must abandon the human rights paradigm altogether—particularly when no viable alternative global forum and no viable alternative universal faith is yet at hand. Instead, these criticisms support the proposition that the religious sources and dimensions of human rights need to be more robustly engaged and extended. Human rights norms are not a transient libertarian invention or an ornamental diplomatic convention. Human rights norms have grown out of millennium-long religious and cultural traditions. They have traditionally provided a forum and focus for subtle and sophisticated philosophical, theological, and political reflections on the common good and our common lives. And they have emerged today as part of the common law of the emerging world order. We should abandon these ancient principles and practices only with trepidation, only with explanation, only with articulation of viable alternatives. To deconstruct human rights, without posing real global alternatives, is to insult the genius and the sacrifice of their many creators. For now, the human rights paradigm must stand—if nothing else as the "null hypothesis." It must be constantly challenged to improve. But it should discarded only on cogent proof of a better global norm and practice.

A number of other distinguished commentators have argued that religion can have no place in a modern regime of human rights. Religions might well have been the mothers of human rights in earlier eras, perhaps even the midwives of the modern human rights revolution. But religion has now outlived its utility. Indeed, the continued insistence of special roles and rights for religion is precisely what has introduced the Dickensian paradoxes which now befuddle us. Religion is, by its nature, too expansionistic and monopolistic, too patriarchal and hierarchical, too antithetical to the very ideals of pluralism, toleration, and equality inherent in a human rights regime. Purge religion entirely, this argument concludes, and the human rights paradigm will thrive.

This argument proves too much to be practicable. In the course of this century, religion has defied the wistful assumptions of the Western academy that the spread of Enlightenment reason and science would slowly eclipse the sense of the sacred and the sensibility of the superstitious. Religion has also defied the evil assumptions of Nazis, Fascists, and Communists alike that gulags and death camps, iconoclasm and book burnings, propaganda and mind controls would inevitably drive religion into extinction. Yet another great awakening of religion is upon us—now global in its sweep.

It is undeniable that religion has been, and still is, a formidable force for both political good and political evil, that it has fostered both benevolence and belligerence, peace and pathos of untold dimensions. But the proper response to religious belligerence and pathos cannot be to deny that religion exists or to dismiss it to the private sphere and sanctuary. The proper response is to castigate the vices and to cultivate the virtues of religion, to confirm those religious teachings and practices that are most conducive to human rights, democracy, and rule of law.

T.S. Elliot once wrote that: "Religions run wild must be tamed, for they cannot be long caged." Religion is an ineradicable condition of human lives and communities. Religion will invariably figure in the legal and political life of a community—however forcefully that community seeks to repress or deny its value or validity, however cogently jurists or judges might logically bracket it from their political and legal calculus.


In the summer of 1994, Czech President Vaclav Havel was awarded the prestigious Liberty Medal in Philadelphia. After graciously receiving the medal with many kind words, he then offered a stern warning:

:Cultural conflicts are increasing and are more dangerous today than at any other time in history. The end of the era of rationalism has been catastrophic, [for now] the members of various tribal cults are at war with one another. . . . The abyss between the rational and the internal, the objective and the subjective, the technical and the moral, the universal and the unique constantly grows deeper." There followed a long list of illustrations which left even the most buoyant observer looking nervously over his shoulder.

But then, as a good dramatic poet will always do, Havel delivered himself of these words, with which I shall conclude as well:

"[T]he only real hope of people today is probably a renewal of our certainty that we are rooted in the Earth and, at the same time, the cosmos. This awareness endows us with the capacity for self-transcendence. Politicians at international forums may reiterate a thousand times that the basis of the new world order must be universal respect for human rights, but it will mean nothing as long as this imperative does not derive from the respect of the miracle of being, the miracle of the universe, the miracle of nature, the miracle of our own existence. Only someone who submits in the authority of the universal order and of creation, who values the right to be a part of it, and a participant in it, can genuinely value himself and his neighbors, and thus honor their rights as well."