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Griffiths, David H --- "Does God believe in human rights? Essays on religion and human rights edited by Nazila Ghanea" [2009] OtaLawRw 13; (2009) 12 Otago Law Review 215

Last Updated: 26 February 2012

Does God Believe in Human Rights? Essays on Religion and Human Rights

(Edited by Nazila Ghanea, Alan Stephens & Raphael Walden, Martinus

^{Nijhoff Publishers/Brill Academic, Leiden, 2007)}

It was John Locke who first articulated the “modern contours”¹ of religious freedom protection in liberal democracies. In A Letter Concerning Toleration, he said: “I esteem it above all things necessary to distinguish exactly the business of civil government from that of religion, and to settle the just bounds between the one and the other.”² True belief, he went on, was an internal quest of the individual, the “war he must wage on his own lust and vices” and this should be free from the dictates of the civil power.³ It was his observation that everyone’s beliefs were orthodox, or correct, in his own mind – and that other people’s were, by definition, wrong. For Locke, the corollary of this was that no church should align itself with the civil power, for that would show a desire “to carry on persecution, and to become masters”⁴ over those belonging to other religious sects. External actions on the other hand were the concern of the civil power. If a man should conduct himself according to the dictates of his own conscience, and this conflicted with the law of the land, then the law of the land could hold him accountable. The key was that if the government made laws that treated all equally, then peace would reign.

How did he justify this (at the time) radical position?⁵ Many of his reasons were pragmatic. War between competing faiths had ravaged his homeland; the only way to stop this was to remove religion from the political arena. In any case it was his belief that, as a matter of practical reality, true faith could not be coerced, so it was vain to try to do this by means of capturing the national government and then using this domination to convert one’s religious opponents. Running alongside his pragmatism however was a strong religious argument that tolerance of the beliefs of others was actually required by Christian teaching:

¹ Stanley Fish “Mission Impossible: Settling the Just Bounds between Church and State” (1997) 97 Colum L Rev 2255; and see Arcot Krishnaswami Study of Discrimination in the Matter of Religious Rights and Practices (United Nations, New York, 1960) 3.

² John Locke A Letter Concerning Toleration J Horton & S Mendus (eds) (Routledge, New York, 1991) 17.

^{3 Ibid 14.}

^{4 Ibid 25.}

^{5 To the modern eye it seems excellent that Locke’s model of toleration}

^{extended to Protestant dissenters and even Jews, Muslims and pagans, but}

^{less so in that it did not include Catholics and atheists, whom he regarded}

^{as enemies of the state: “For example... any sect that teaches expressly}

^{and openly... that princes may be dethroned by those that differ from}

^{them in religion....Lastly, Those are not at all to be tolerated who deny}

^{the being of God.” Ibid 45-47.}

“The toleration of those that differ from others in matters of religion, is so agreeable to the Gospel of Jesus Christ, and to the genuine reason of mankind, that it seems monstrous for men to be so blind, as not to perceive the necessity and advantage of it in so clear a light.”⁶

Three hundred and eighteen years later, Martinus Nijhoff Publishers have continued the Lockean search for light with the catchily entitled Does God Believe in Human Rights? The book is an anthology drawn from a colloquium of the same name held in February 2005 and is emblematic of the new interest in religious attitudes to human rights. This has become an urgent enquiry since the events of 9/11; and it is also symbolic of the realisation in Western societies that religion will not “go quietly into the night” in the face of scientific and social progress – as secularisation theorists confidently predicted in the 1960s. Large-scale immigration of foreign non-Christian religious communities into all the major Western democracies has put a huge spanner in the works of that thesis and this book is a product of, among other things, this new demographic reality.

The anthology begins with an engaging introduction by international legal scholar, Malcolm Evans, who posits the basic conflict. Evans notes that much progress has been made in promoting dialogue between religions, but argues that, while this is an admirable pursuit, the most pressing need for dialogue is between religion and human rights. Locke for one, as can be seen in the quotation above, believed that correct Christian thought and human rights were compatible. Evans however points out that modern human rights lawyers have developed a “quasi- transcendental” regard for their own field that has inevitably rubbed up against religious believers who come from a less liberal tradition than Locke and who consider their own version of the ineffable as carrying primacy. Should religious believers be required to reappraise their own beliefs in order to conform to human rights values? Can these two viewpoints be reconciled? The book approaches the task in two parts.

The first part (“Religious Perspectives”) contains diverse views from religious scholars of Christian, Jewish, Muslim and Bahá’i backgrounds. Each of these searches for common ground between their own “universal” religious beliefs and the demands of the modern secular state and its fixation with “universal” human rights. Richard Harries and Roger Ruston, relying on the thinking of (among others) St Paul, Aquinas, and Locke, trace the Christian origins behind the idea that rights are grounded in the dignity of individual human beings, who are granted free will by God. They dispute the viewpoint of human rights “universalists” that this idea was created out of thin air by “secular” thinkers, such as Kant, and by so doing reveal the essential common ancestry of human rights and religious discourse.

Michael Ipgrave gives closer consideration to some of the issues relating

^{to conflict between religious and human rights imperatives. The ongoing}

⁶ Ibid 16-17.

secular desire to “privatise” religion is shown in his description of the decision to ban religious insignia in French public schools in 2004. He notes that the cabining of religious manifestation to the private sphere is characteristic of the tendency of the modern Western state to create a religion-free public zone – a position that is arguably contrary to the European Convention on Human Rights.⁷ Javaid Rehman argues from a Muslim perspective that conflict between Islam and human rights is by no means a foregone conclusion. Rehman rejects the inevitability of Huntington’s “clash of civilisations” by showing how Islamic texts can be (and have been, by reforming Muslim scholars such as An-Na’im) interpreted in a way that fits the classic liberal-secular demand for respect for individual opinion and difference in matters of religion. Particularly remarkable is Rehman’s heroic interpretation of the direction in the Qur ’an to “kill [the unbelievers/idolators] wherever you find them and make them prisoners and beleaguer them, and lie in wait for them at every place of ambush”.⁸ Rehman draws the reader ’s attention to a number of “caveats and moderating references” surrounding the infamous Qur ’anic injunction; in short, he claims the verse is quoted out of context by enemies of Islam. Similarly, speaking in the area of Judaism and its conflict with gender equality, Norman Solomon traces the arguments between orthodox and liberal Jewish belief and seems to believe the latter are winning by an “internal process of growth leading to new interpretations” of the ancient scriptures.

Much can be said for liberal religious scholarship of this type and its ability to foster complementarity between religion and liberal-secularism. One wonders however how much purchase these hermeneutical repositionings would have in, say, a jihadist bombing cell in northern England, or a certain cave in the Pakistani highlands. Moreover, can liberal exegesis of religious texts ultimately generate respect for the individual in societies where religious fundamentalism holds the reins of power in a manner contrary to the Lockean ideal of Church-State separation? John Leith relates how followers of the Bahá’i faith suffer massive persecution in Iran, a country where no Islamic “Enlightenment” appears imminent. Fundamentalism however is in the eye of the beholder, of course, and Melanie Phillips, speaking from a conservative Jewish perspective, contends that Western secularism, by creating an absolutist materialist culture of individual “entitlement”, is essentially a project that seeks to dissolve the glue that has historically kept Judeo– Christian societies together. In particular, she claims that the diminution

7. It seems likely however that the French ban would survive scrutiny by the European Court of Human Rights; see Leyla Sahin v Turkey App No

^{44774/98 [2005] ECHR 819 (10 November 2005).}

^{8 Qur’an Sura 9:3-5. Rehman adverts the reader to the next verses in the}

^{text, which are indeed more moderate: “Then if they repent and observe}

^{Prayer and pay the Zakat, leave them alone...If any one of the idolaters}

^{seeks asylum with thee, grant him asylum so that he may hear the Word}

^{of Allah; then convey him to a place of security for him, for they are a}

^{people who lack knowledge.”}

of the communitarian notion of duties to one’s community in favour of individual rights will see a paradoxical destruction of liberty: “[T]he human rights culture is actually anti-democratic, superseding religious cultures rooted in religious principles.”⁹

The second part of the book (“Models, Tensions and Frameworks”) is devoted to theoretical explorations and case studies showing how the state has ordered (or could order) itself in response to religious difference. Paul Weller begins the section with a sketch of some different models of secular states and considers the legal and practical consequences of these arrangements, showing how constitutional set-ups can have far-reaching effects on the resolution of conflict between religion and human rights. Those who find themselves scratching their heads about why France is more like Turkey than Britain or the United States in its response to the Muslim headscarf can learn a lot from this account. Dennis de Jong looks at the conflicts between anti-discrimination laws, particularly with regard to sex, and long-standing religious beliefs. He also notes the paradox of how international human rights can in one breath liberate religious minorities, while in the other restrict religious practice. Of particular interest for New Zealand readers is Peter Cumper ’s sceptical account of the tortuous process by which the United Kingdom enacted legislation prohibiting religious hate speech in 2006. Cumper examines the difficulties, both practical and philosophical,¹⁰ of protecting religious groups from vilification or ridicule when this necessarily involves a truncation of the ultra-liberal right to freedom of speech.¹¹ If New Zealand chooses to legislate in this field,¹² it is likely that the concerns evident in the parliamentary debates leading up to the passage of the United Kingdom statute would be rehearsed again here in substantially similar terms.

Nazila Ghanea cautions against the proliferation of “-isms” and

^{“-phobias” at the UN, especially with respect to the adding of}

⁹ British Prime Minister Gordon Brown’s advocacy of a “Bill of Rights and Duties” is no doubt a concession to views such as Phillips’. See D Hencke “PM offers to hand power to the people in constitution debate” The Guardian (UK, 4 July 2007).

^{10 For discussion of these issues in the New Zealand context, see Rex Ahdar}

^{“The Right to Protection of Religious Feelings” [2008] OtaLawRw 4; (2008) 11 Otago LR 629.}

^{11 The final version of the UK legislation (which was passed after Cumper}

^{wrote his chapter in this book) saw a watering-down of the original Bill in}

^{response to the many criticisms leveled against it; see Racial and Religious}

^{Hatred Act 2006 (UK). For post-enactment comment, see Kay Goodall}

^{“Incitement to Religious Hatred: All Talk and No Substance?” (2007) 70(1)}

^{MLR 89.}

^{12 One such legislative attempt in New Zealand appears to have been}

^{abandoned – or, at least, put on the back burner. In 2004 the Government}

^{Administration Committee launched an “Inquiry into Hate Speech” and}

^{received submissions on the matter. No report has as yet been issued.}

^{See “Goff welcomes hate speech inquiry” (media release, 6 August 2004);}

^{at <http://www.beehive.govt.nz/release/goff+welcomes+hate+speech}

^+inquiry>).

Christianophobia and Islamophobia to the existing category of anti- Semitism. She argues that the element of reification inherent in these terms will ultimately have a divisive effect. Frederik Harhoff concludes the section by expounding further on what might be regarded as the theme of the book: that human rights and religion, given their common origins and concerns, could be mutually reinforcing, with the proviso that when religious norms are transferred into human rights norms, they have a tendency to take on a different character: “The norms and values which appear to be common to religion and human rights...exist in a polycentric environment in which they may acquire different and possibly irreconcilable meanings.”

Harhoff’s observation sums up the book. Does God Believe in Human Rights? provides very few knock-down arguments for where the “just bounds” between civil government and religion should lie, but the fact that “Human Rights vs. Religion” is a debate that scholars of whatever ilk can now join is in itself a revelation of sorts to those who might have expected the two sides would not be on speaking terms. And, finally, does the book provide an answer to the question posed in its title? Dennis de Jong for his part answers in the negative, but he does not mean what you might think, and it is well worth the read to find out.

David H. Griffiths,

PhD Candidate, Faculty of Law, University of Auckland.