Human Rights Democracy & Religion In the Perspective of Cultural Studies, Philosophy and the Study of Religions

Human Rights Democracy & Religion In the Perspective of Cultural Studies, Philosophy and the Study of Religions Edited b...

Author: Lars Binderup & Tim Jensen (eds.)

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Human Rights Democracy & Religion In the Perspective of Cultural Studies, Philosophy and the Study of Religions Edited by Lars Binderup & Tim Jensen

UNIVERSITY OF SOUTHERN DENMARK

·

ODENSE

Human Rights, Democracy & Religion In the Perspective of Cultural Studies, Philosophy and the Study of Religions

Edited by Lars Binderup & Tim Jensen © 2005 by the Authors Published by The Institute of Philosophy, Education, and the Study of Religions University of Southern Denmark, Odense Campusvej 55. DK-5230 Odense M [email protected] Publishing consultancy and prepress by Bo Alkjær, Copenhagen [email protected] Printed in Denmark 2005 by BookPartner a/s, Copenhagen ISBN: 87-xxxxxxxxxx

Contents

Preface

5

7 Human Rights and Religion: Contributing to the Debate DAVID FAVRHOLDT 22 The Charter on Human Rights: A Philosophical Analysis R O S A L I N D I. J.H A C K E T T

with Special Regard to the Question of Rationalism vs. Relativism

34 The Metaethical Foundation of Human Rights LARS BINDERUP 47 Human Rights, Moral Objectivity, and Tolerance of Religion LINDA BARCLAY 62 How much Religious and Cultural Diversity can Liberalism tolerate? THOMAS WAMSLER 74 Political Classification and the Framework of Tradition ERICH KLAWONN

Reading the Universal Declaration of Human Rights from a History of Religions Perspective

84 International Human Rights Law and the Bible

EVA MARIA LASSEN

Two Norm-setting Standards of the Modern World

98 Human Rights and Christianity: A Lutheran Perspective JAN HJÄRPE 105 Islamic Legitimation of Democracy and Human Rights SVEND ANDERSEN

Some Trends and Tendencies in the Muslim Debate

116 Islamist Responses to Human Rights:

J A K O B S K O V G A A R D -P E T E R S E N

The Contribution of Muhammad al-Ghazzali

127 Terrorism, Public Emergency, and International Order

DAVID LITTLE

The U.S. Example

Contributors

158

Preface

On April 2-5, 2002, the Institute of Philosophy and the Study of Religions at the University of Southern Denmark, Odense, hosted a conference on Human Rights, Democracy & Religion – in the Perspective of Cultural Studies, Philosophy and the Study of Religions. This volume of edited papers is one of the results of the conference. The conference was called to celebrate the 20th anniversary of the Department of The Study of Religions, the intensified collaboration of philosophers and historians of religions working together at the Institute of Philosophy and the Study of Religions, and the 10th anniversary of Centre for American Studies, the latter adding the perspective of cultural studies to the perspectives of the philosophers and historians of religions. The overall aim of the conference was to bring together Danish and international scholars in order for them to bring together their different academic traditions, perspectives and approaches to the subject in question, namely human rights, democracy and religion and not least the relations between these contested notions and realities. Though the papers do not reflect all of the inter-disciplinary discussions and dialogues that took place at the conference, they do demonstrate the range of approaches and the need for and the usefulness of bringing these approaches and scholars together. The philosophers (Binderup, Barclay, Favrholdt and Klawonn) each in their way discuss basic, normative ethical and metaethical questions pertaining to human rights, norms and ethics in general and at the same time they relate the notion and status of religion to these questions and human rights norms, also taking heed of questions pertaining to political philosophy and the problems besetting multicultural and multi-religious liberal societies, and liberal philosophies. Most of the historians of religions and islamologists (Hjärpe, Lassen, Skovgaard-Petersen, Wamsler) and the one theologian (Andersen) discuss the historic and present relations between various religious traditions, Christianity, Islam and Judaism adding their characteristic empirical and historical-philological approach to the philosophical, more normative, discussions. One historian of religions, Rosalind Hackett, however, surveys the whole range of approaches to the new field of human rights and religion, pointing to areas in need of more research. And, hard to classify, except maybe as the one and only human rights scholar, David Little, in a thoroughly critical manner analyses the reasons behind the Human Rights Declaration of 1948 and the US policy and ‘war against terrorism’ and later against Iraq.

The issues at stake, i.e. the relations between human rights, democracy and religion, have not become outdated, neither in theory nor in the ‘real world’, in the time passed since the conference in 2002. The same goes for the edited papers here presented. Each of these has lasting value as well as direct relevance to ongoing public as well as political discussions and decision-making. The volume is another proof of the importance and direct relevance of humanistic academic studies and scholarship to the wider public debate, and it is the hope of the editors that they will be read not only inside the academia but also outside. Besides extending our thanks to the contributors, we want to thank the Danish Research Council for the Humanities, the now former Institute of Philosophy and the Study of Religions at the University of Southern Denmark, and the American Embassy in Denmark for making possible the conference and the publication by way of their financial support.

Odense, July, 2005 Lars Binderup & Tim Jensen

Human Rights and Religion Contributing to the Debate R O S A L I N D I. J. H A C K E T T In this essay I identify a number of areas in contemporary human rights discourse which could benefit from the insights of scholars of religion. I am particularly interested in the ways in which the historical, ethnographic and analytical skills that religion scholars possess might help transcend some of the dichotomous bugbears of human rights debates. I have in mind here what Ninian Smart called our propensity for ‘worldview analysis,’ namely, the critical interpretation of sacred symbol, text, space, ritual, object, community, as well as cultural difference and identity (see, e.g. Chidester 1996; Chidester 2000: 436; Nye 2000). Also germane for the analysis of human rights theory and practice are studies of the mobilizing and authorizing power of religious rhetoric (McCutcheon 1997; O’Leary 1994), as well as secular ideologies (see, especially, Smart 1995). Moreover, the location of religious studies scholarship at the intersection of the humanities and social sciences, together with its focus on religious belief and practice as embedded historical and contemporary realities, can serve to complement, if not healthily challenge, the domination of these questions by legal, political, and philosophical theorists. These ideas emerge out of a larger study in which I analyzed the contours of the emerging field of religion and human rights (Hackett 2003). The present chapter is intended rather as an overview and stimulus to further research. It develops some of the ideas I presented in my conclusion. For more detail on the various topics adumbrated here, the reader can refer to my earlier piece (Hackett 2003) and to the works cited here. The relationship between religion and human rights is complex, and has been described as ‘uneasy’ (An-Na’im 1995) and ‘vexed’ (Henkin 1998, 2000).1 Early work concentrated on the compatibility or incompatibility of religious traditions and the modern human rights concept. More recent research has taken an empirical turn. For example, there is a growing body of scholarship on religious freedom (or, more correctly, freedom of religion and belief) in a number of contexts. There is strong focus on minority religions, since this type of religious organization is more (and more) subject to limitations and repression (Adams 2000). For example, a number of European countries have in the last few years imposed or proposed restrictions on their newer religions (‘sects’ and ‘cults’) and this has generated a number of studies, principally from sociologists (Gunn 1998; Barker 2000; Shterin 2001; Lord 2000; Richardson 1995; Richardson 2000; Naber 2000).2 1 An earlier publication which was helpful in clarifying the parameters was Kelsay 1994. 2 See also on this topic Social Justice Research, 12, 4 (1999) and Nova Religio (May 2001).

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R O S A L I N D I. J. H A C K E T T

state and non-state actors (such as other religious organizations) has also been afforded by recent governmental and inter-governmental initiatives. In 1998 the United States launched a controversial initiative to make religious freedom a central aspect of its foreign policy in the form of the International Religious Freedom Act of 1998.3 As a result of this law there is now an Ambassador-atLarge for International Religious Freedom, an office in the State Department, an Advisory Commission, and annual report on the state of religious freedom worldwide; in addition, the President is required to resort to a range of actions against countries that are major violators of religious freedom (Gunn 1998; B Increased attention to restrictions on freedom of religion and belief by both arker 2000; Shterin 2001; Lord 2000; Richardson 1995; Richardson 2000; Naber 2000).4 It is also important not to assume that religions are only victims of repressive governments and that they naturally support basic human rights, but also to consider the ways in which they may undermine them. A classic example of the clash between religious ideologies and human rights norms is the much contested area of women’s rights, discussed in more detail below (Howland 1999; Cook 1994). Self-interests and truth-claims, as well as the record of wars and conflicts associated with religion the world over, are seen as disqualifying factors by more hard-nosed secularists. So too are the patterns of discrimination evident within many religious traditions themselves. In contrast, there are plenty of proponents to demonstrate the positive role that religious communities have played in the promotion and protection of human dignity, on which universal human rights are predicated (Kelsay 1994; Witte and Vyver 1996; Appleby 1999). In this work, as stated above, I shall indeed address some of the mutual imbrications of religion and human rights, but will devote greater attention to some of the ongoing ‘hang-ups’ or ‘hangovers’ of the human rights debate more generally. This obliges us to engage the conflictual and ambiguous side of human rights, and the manipulation of these instruments by religious or state actors (Hackett 2003). With this focus, I hope also to demonstrate, notably to those with narrower, more rigorous conceptions of the field (e.g., McCutcheon 2001), that a focus on human rights is not a travesty of our academic portfolio. In fact, it may serve to strengthen our critical cause and our multidisciplinary merits. Just as those who work in the disciplines of ethics, philosophy, and international relations have had to take theoretical and empirical cognizance of the rise of human rights discourse over the last few years, so too must scholars of religion.5 The work of several area or empirically oriented tradition specialists, such as Bruce Lawrence (Lawrence 1998), Mark Juergensmeyer (2000; 1996), Margaret 3 See http://www.state.gov/www/global/human_rights/drl_religion.html 4 The work of the Organization for Security and Cooperation in Europe (OSCE) (Gunn

2001) (Affairs 2001) and the United Nations Special Rapporteur on Freedom of Religion and Belief (Amor 2001) are also apposite here. 5 See, for example, the special issue of the Journal of Religious Ethics (26,2 [1998]) on the 50th Anniversary of the Universal Declaration of Human Rights.

HUMAN RIGHTS AND RELIGION

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Crahan (1999), Arvind Sharma (1998) and Dale Eickelman (Eickelman and Anderson 1999) evidences this trend. They examine the way more internationalist conceptions of the freedom to manifest religious belief and practice can transform the dynamics of religion and state, and local power relations in particular contexts (the work of Malory Nye, (1998; 2001) on the Hare Krishna in Britain is very apposite here). In my own research on new religious movements in Africa, the appropriation of ‘rights talk’ has become a significant component of relations between religions, and between religions and the state (Hackett 2001). Let us now turn our attention to some of the persistent debates in the world of human rights that I wish to highlight as grist for the mill of religion scholars.

Sham Universalism? The notion continues to persist among detractors (whether academics with culturalist agendas or governments with guilty consciences) that human rights are a Western invention, at best with little relevance, at worst as an instrument of Western domination (Sardar 1998; see, also, Baxi 2002). This critique usually goes down three relativist roads.

Contested Roots First, human rights are claimed to have Western provenance, and therefore are culturally and politically meaningless to the non-Western world. There is generally a sharp divide between those who argue that human rights have religious, i.e. biblical, roots (Witte 2001; Stackhouse and Healey 1996), and those who entertain only modern, secularist origins (Henkin 1998). Fortunately this has been problematized by those seeking to demonstrate the evolution of the human rights concept in other (non-Western) cultural and religious traditions (AnNa’im 1996; Bauer and Bell 1999). Alternatively, some scholars have tried to transcend foundational pitfalls by positing a more flexible approach (An-Na’im 2002; Cahill 1999-2000).6 Some scholars have sought to encourage a broader reading of the foundational moment in the genealogy of the human rights, namely the drafting of the Universal Declaration of Human Rights (Glendon 2001; Lindholm 1999). Others prefer to argue that whatever one believes about the ‘ownership’ of human rights is less important than believing in the potential of international human rights as a moral, legal and political means of addressing the indignities and inequities in people’s lives (Ignatieff 2001). This type of pragmatism is echoed by Rorty (1993). Kirsten Hastrup, however, believes that the tensions between transcendent and historically embedded values should not be glossed over (Hastrup 2001) In her judgment, there are significant links between the development of the myth of universal human rights and the historical processes of globalization (see also Cowan, Dembour, and Wilson 2001). 6 Note: In this essay I have drawn extensively on the work of Abdullahi An-Na’im, since he

engages more critically and imaginatively than most human rights analysts the domains of religion and culture. See also the forthcoming special issue of Culture and Religion (guest edited by Rosalind I. J. Hackett and Winni Sullivan) on Law and Human Rights.


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Contingent Universalism There is no denying that the founding documents of the international human rights movement, such as the Universal Declaration of Human Rights (1948), were indeed drawn up in the colonial era. This excluded the participation of many non-Western peoples. However, over the last five decades, the human rights concept has expanded in both theory and in practice. The predominance of Western influences in shaping the modern human rights idea and its institutional presence has been challenged and modified first by Communist governments, then by academics, governments and international government organizations from the global South (Lindholt 1997; Mutua 2001; Lauren 1998). The role played by non-governmental institutions which make up emergent global civil society has been considerable (An-Na’im 2002). The principal organ of human rights promotion and protection, the United Nations, has itself developed varied mechanisms over the years to achieve its goals. Veritably many would argue that human rights parlance has now achieved the status of a “moral lingua franca for global politics” (Barbieri 1998; Power and Allison 2000).7 Douzinas avers that the ‘partiality’ of the early human rights movement has been transcended by the fact that the “ontological presuppositions, the principles of human equality and freedom, and their political corollary, the claim that political power must be subjected to the demands of reason and law, have become part of the staple ideology of most contemporary regimes” (Douzinas 1996). An-Na’im takes a different approach to universalist-relativist tensions. He questions the purported universality of Western values and conceptions of human rights, given the inconsistencies in their promotion and protection by the United States and European governments (An-Na’im 2002). He views the universality of human rights as a constantly negotiated process that can only be arrived at by including non-Western perspectives, rather than dismissing them as relativist. Historians of religion know full well that historical processes transform religions, and that later formations may not resemble the original communities. They should therefore be sensitive to the transformations that have occurred within the human rights community, in response to challenges from the grassroots and the margins. They should also be able to appreciate the divergences between ideals and realities (see Jensen 2000). Just as many Catholics remain faithful to their church despite their anger over sexual abuse in the priesthood, so too do many human rights activists remain persuaded of the value of human rights despite the failures of major human rights organizations to prevent crimes against humanity, as in Rwanda. There is much more historical and ethnographical work to be done on the ways in which the various actors and communities translate universal human rights notions into their everyday cultural realities and vice versa (see, for ex7 But see Rabinow’s argument that rights discourse precariously coexists with “the cultures

of consumption and a wide range of religious and neo-traditionalist moral discourses” (Rabinow 2002).


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ample, McLagan 2000; An-Na’im 2002). Earlier scholarship emphasized the linking of rights and duties in many religious traditions. More recently, some interesting challenges have come from scholars and religious leaders who question the assumption in Western thought that freedom of religion must entail the right to disseminate one’s religion.8

Contesting Individualism The predication of the human rights paradigm on the individual is often held up as strong evidence of its Western orientation (Bloom, Martin, and Proudfoot 1996). To counter or complement this individualism a rich body of literature has emerged on ‘group rights,’ some of it framed within current debates on multiculturalism and cultural self-determination. Religious identity often features prominently therein–whether it concerns Sikhs and crash helmets or Orthodox Jewish rabbis and employment (see, especially, Kymlicka 1995; Barry 2001; Freeman 1995; Freeman 2000; Howard-Hassmann 2000; Parekh 1999; Hannum 1996; Tschuy 1997; Shweder, Minow, and Markus 2002). Hannum sagaciously points to the particular challenge of religious rights since they constitute classic ‘civil’ or ‘individual’ rights and yet are fundamental to the protection of the rights of minority, indigenous, and other groups (1996). Further study is required of the way many minority groups are increasingly factoring religious and cultural rights into their political agendas (cf. Hannum 1996: 72-73), or, in some cases, recasting those claims in religious rights language whether it is Muslims in Europe (Barbieri 1999) or Uzbekistan (An-Na’im 2000, or revivalist ethnic groups in Kenya (Hackett 2001). Women’s rights to equality under state and international human rights law frequently clash with the rights of religious collectivities to self-determination. This is trenchantly articulated by South African feminist theologian, Denise Ackermann, as “no freedom of religion without freedom in religion” (cited in Villa-Vicencio 1996: 535). Religious fundamentalism represents a particular challenge to women (Howland 1999). An-Na’im addresses the conflicts that frequently arise between religious and customary laws and international human rights norms over the equality and freedom of women in matters of land allocation, inheritance, marriage, and divorce, etc. (An-Na’im 1994; Wanyeki 2003). He suggests that conformity of communal norms with state and international standards is more likely to be achieved through the gradual processes of internal and cross-cultural dialogue. An-Na’im sees both complementarity and contradiction between individual and collective rights which is to be expected “among all rights as instruments of negotiation and mediation of competing claims” (1998).9 8 See Sharma 2000 and the text of the resolution passed at the World Congress for the

Preservation of Religious Diversity, held in Delhi, November 2001 http://www.aimforseva.org/draft.htm. I am grateful to Arvind Sharma for supplying me with this information. 9 Cf. the work of Daniel Bell who tries to chart a middle ground between Western liberal democracy and Asian values of communitarianism and authoritarianism (Bell 2000).


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Similarly, Martha Nussbaum, in her book on Women and Human Development, emphasizes the importance of freedom of choice for women within religious systems – which may entail their acceptance of practices of exclusion or subordination--but not at the expense of their basic human capabilities (Nussbaum 2000; see, also, Nussbaum 1997). The idea of ‘differentiated universalism’ (Lister 1997) has also been proposed by a group of feminist scholars working on discourses of citizenship. In their recent volume entitled Women, Citizenship and Difference, the authors argue that the national discourses of citizenship and international discourses of human rights both imply one another; their political and jural instability points to the ongoing negotiation of difference and belonging (Yuval-Davis and Werbner 1999; cf. also Ong 1999). They seek to develop models of citizenship as dialogical and relational, and embedded in cultural and associational life, rather than positing an opposition between individualist and communitarian models. The elegant and cogent phrasing of legal scholar Costas Douzinas seems to point the way to a more effective way of thinking about the issues raised in this section: “For a polity that protects human rights, injustice would be the attempt to crystallize and fix individual and group identities, to establish and police the boundaries of the social, to make it coextensive with itself and close it around some figure of authority or law. For a law that protects human rights, injustice would be to forget that humanity exists in the face of each person, in her uniqueness and unrepeated singularity, and that human nature (the universal) is constituted in and through the transcendence of the most particular .” (Douzinas 1996)

Discourses of Difference Integral to concepts of group rights and markers of religious identity are the discourses and rhetoric of difference. Richard Rorty has elucidated the dehumanizing strategies by which humans perpetrate inhuman acts on their fellow humans (Rorty 1998). Scholars of religion are well attuned to the discursive strategies employed by religious communities to distinguish themselves from others, whether it is holy/unholy, sacred/secular, saved/unsaved, good/evil, true/false, blessed/cursed, etc. (see, e.g. O’Leary 1994). In my own work on Nigerian Pentecostalism, I have argued that the rise of discourses of Satanism and demonization, has serious consequences for the religious Other (Hackett 2002, forthcoming). Discourses of deviance are similarly invoked by states to deny rights to individuals and minorities. The case of the Falun Gong in China and Muslim groups in Uzbekistan are cases in point. With terrorism as the new trope of difference, and national and international security at stake, authorities are further empowered to clamp down on unpopular groups. With the rise of mass mediated religion come pressing questions regarding


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discrimination and protection of religious feelings.10 Research has shown that government and legal authorities can be influenced by negative portrayals of non-mainstream groups (Richardson 2000:125, n. 30; Dillon and Richardson 1994, Beckford 1999). Bias and misinformation affect whether recognition or resources may be accorded to minority groups.11 The power to define what counts as religion, or good religion, seems to be increasingly located in the hands of states and judiciaries, as well as the media (Lease 2000; Sullivan 1994; Sullivan 2002). Religion scholars, familiar with the myriad academic ways of defining religion, could apply this knowledge to specific contexts where the religious identity of individuals or groups is being put into question. Scholars who work on new religious movements, such as the Jehovah’s Witnesses or the Unification Church, have long experience of the methods used to demonize minority groups (Beckford 1985; Hervieu-Leger 2001; Lord 2000; Richardson 1995). It is not uncommon for anti-cult rhetoric to flourish in times of social and political instability, as in Eastern Europe (Barker 2000) or South Africa (Faure 2000), for example. Indigenous religions are commonly subject to exclusion or negative treatment. Lacking institutional mechanisms to represent themselves in the public sphere they may be dismissed as ‘culture’ and therefore not subject to the protections afforded to recognized religious groups (Hackett forthcoming; Mutua 1999). Likewise, their practices may be considered to be anti-social, inhumane or a threat to public health (Quashigah 1998; Johnson 2001). In some cases, vocal advocates may carve out new public, reified identities for these communities, as in the case of South Africa (Mndende 1998).

Problematizing Religious Practice While governments may be more than ready to declare their support for religious freedom, they are generally referring to religious beliefs rather than the manifestations or practices of those beliefs. There is considerable ambiguity regarding religious practice. The two principal sources for considering the variety of practices which come under the rubric of “manifestations of religion or belief” are the landmark study, in 1959, by Arcot Krishnaswami,12 and the Declaration on Religious Intolerance and Discrimination in 1981. In her excellent 10 Religious hate speech generally does not have the same protection as racial hate speech.

In two African constitutions, however, there are provisions. The Constitution of Cape Verde, for example, prohibits the imitation or mockery of religious symbols or ceremonies (art. 48(7)) (van der Vyver 1999: 137). The Constitution of Cameroon proclaims that no-one shall be harassed because of his or her beliefs in religious matters, “subject to respect for public order” (Preamble). On the relationship between incitement to religious hatred and religious intolerance more generally, see (Boyle 1992). 11 The Baha’is in Egypt are a case in point. See Johanna Pink, “New Religious Communities in Egypt: Islam, Public Order and Freedom of Belief.” Paper presented at the 2002 CESNUR International Conference on “Minority Religions, Social Change, and Freedom of Conscience,” Salt Lake City and Provo (Utah), June 20-23, 2002, p. 4. 12 Study of Discrimination in the Matter of Religious Rights and Practices, U.N. Sales No. 60.XIV.2 (1960).

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study of freedom of religion under the European Convention on Human Rights, Carolyn Evans notes the “problems that can arise when a court [as in the case of Europe] substitutes its decisions about what is required [by a particular religion or belief], for those of the people affected.” (Evans 2001) The problems are heightened when the court is less familiar with a diverse range of religious options, or is more subjective, as in the case of the Supreme Court of the United States. She suggests, significantly for our purposes, that “scholarly studies into religious freedom” could add “more objective elements to the subjective claims of applicants that an action is a manifestation of a religion or belief.” In addition to helping clarify or expand the spectrum of religious action and practice, religion scholars may also shed light on the limitations on religious practice that can be imposed by governments or by religious organizations themselves. Bahia Tahzib (2000) directs attention to the way in which limitations on women’s rights to freedom of religion and belief are frequently associated with the realm of practice and external manifestations. These would include female genital cutting and restrictions on dress. In fact, legal scholar Jeremy Gunn comments that the whole area of limitations on religious practice is “one of the most complicated and poorly understood areas of international human rights.”13 Closer scrutiny is needed of the actual measures taken by governments to protect public order and national interests as these may disproportionately affect non-conventional religions. At the important “Seminar on Freedom of Religion and Belief in the OSCE Region: Challenges to Law and Practice,” convened by the Dutch Foreign Ministry in The Hague in June 2001, this area of non-compliance by some European governments with international and OSCE standards in terms of their restrictions on unpopular groups was noted with concern (Affairs 2001). One commentator attributed this disturbing trend to fears of growing multiculturalism (ibid.). So not only might scholars supply historical and comparative data on forms of religious practice to confirm or clarify the types of manifestation outlined in international human rights documents, they may also supply more current data which supplement or modify the prevailing criteria. For example, the rapidly expanding use of the modern mass media by many religious groups around the world for ritual as well as communicative purposes may challenge majoritarian concepts of sacred place and space. Exclusion from the media sphere may therefore constitute a substantial burden on the ability of a particular religious community to function (see, e.g., Hackett 2003). This can especially be the case in religiously competitive environments.

Thickening the Description: Concluding Remarks It has been my aim in this brief essay to highlight some of the areas of current human rights debate to which religion scholars could usefully contribute. These areas either proximate similar areas of inquiry in comparative religious studies 13 Jeremy Gunn, Report of Working Session 2, “Restrictions on the Activities of Religious

and Belief Communities: What is Permissible in Law and Practice?” in Affairs 2001.


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or constitute areas where religion (whether in the form of ideas, actors, practices or institutions) is directly or indirectly implicated. Religion and human rights both share complex existences as concepts, constructs, and as instantiations. In response to Ken Booth’s call to “anthropologize and historicize human rights” (Booth 1999), it is time to develop more ‘thick,’ empirical studies of the interconnections of religion and human rights. This is all the more pressing given the ‘global complexity’ (Urry 2003) and ‘global network society’ (Castells 1996; Taylor 2001) we now inhabit. We need to consider the difference the circulation of ‘rights talk’ – notably ideas about freedom of religion and belief – make to religiously pluralist environments. How does the invocation of such standards affect the regulation of religious diversity, and inter-religious relations? Are there unintended consequences, such as a reconfiguring of the stakes of religious co-existence, and a reordering of religious power relations, or the emergence of new, more covert, patterns of discrimination – all of which can be potentially destabilizing? Does the naturalizing of rights talk affect the selfrepresentation or reification of religious formations? More attention to the polysemic discourse of rights can illumine the internal and external dynamics of situations of religiously related conflict, about which we hear much these days. It can also raise timely questions about the distinctions between public and private, local and global, individual and collective, secular and religious, and minority and majority religions. Academics are increasingly awakening to the fact that such distinctions are no longer academic.

References Adams, IV, Nathan A., “A Human Rights Imperative: Extending Religious Liberty Beyond the Border” in Cornell International Law Journal 33 (1) 2000:1-66. Affairs, Ministry of Foreign, ed., Seminar on Freedom of Religion or Belief in the OSCE Region: Challenges to Law and Practice, Ministry of Foreign Affairs, The Hague, the Netherlands 2001. Amor, Abdelfattah, Elimination of All Forms of Religious Intolerance: United Nations 2001. An-Na’im, Abdullahi, “Islamic Fundamentalism and Social Change: Neither the ‘End of History’ nor a ‘Clash of Civilizations’” in The Freedom to do God’s Will: Religious Fundamentalism and Social Change, G. ter Haar and J. J. Busuttil (ed.), Routledge, New York 2002. An-Na’im, Abdullahi, “Religion and Global Civil Society: Inherent Incompatibility or Synergy and Interdependence” in Global Civil Society Yearbook 2002, M. Glasius, M. Kalder and H. Anheier (ed), Oxford University Press, New York 2002. An-Na’im, Abdullahi A., “Islamic Foundations of Religious Human Rights” in Religious Human Rights in Global Perspectives: Religious Perspectives, J. J. Witte, and Johan D. van der Vyver (ed.), Martinus Nijhoff Publishers, Boston 1996.

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An-Na’im, Abdullahi A., “State Responsibility Under International Human Rights Law to Change Religious and Customary Law” in Human Rights of Women: National and International Perspectives, R. J. Cook (ed.), University of Pennsylvania Press, Philadelphia, Pennsylvania 1994. An-Na’im, Abdullahi A., “Human Rights and the Challenge of Relevance: The Case of Collective Rights” in The Role of the Nation-State in the 21st Century: Human Rights, International Organizations and Foreign Policy, M. Castermans-Holleman, F. v. Hoof , J. Smith. (ed.) Kluwer Law International, The Hague 1998. An-Na’im, Abdullahi A., “Human Rights and Islamic Identity in France and Uzbekistan: Mediation of the Local and the Global”, Human Rights Quarterly 22, 2000:906-941. An-Na’im, Abdullahi A., “Redressing Universal Ambivalence about the Universality of Human Rights” in Journal of Human Rights 1 (4), 2002:607609. An-Na’im, Abdullahi A. (ed.), Cultural Transformation and Human Rights in Africa, Zed Press, New York 2002. An-Na’im, Abdullahi A., Gort, J.D., Jansen, H. and Vroom, H.M. (ed.), Human Rights and Religious Values: An Uneasy Relationship? William B. Eerdmans, Grand Rapids, Michigan 1995. Appleby, R. Scott, The Ambivalence of the Sacred: Religion, Violence, and Reconciliation, Rowman and Littlefield, New York 1999. Barbieri, Jr., William A., Ethics of Citizenship: Immigration and Group Rights in Germany, Duke University Press, Durham, NC 1998. Barbieri, William, “Group Rights and the Muslim Diaspora” in Human Rights Quarterly 21 (4), 1999: 907-926. Barker, Eileen, “The Opium Wars of the New Millennium: Religion in Eastern Europe and the Former Soviet Union” in Religion on the International News Agenda, M. Silk (ed.), The Leonard E. Greenberg Center for the Study of Religion in Public Life, Hartford, CT 2000. Barry, Brian, Culture and Equality: An Egalitarian Critique of Multiculturalism, Harvard University Press, Cambridge, MA 2001. Bauer, Joanne R., and Daniel A. Bell (eds.), The East Asian Challenge for Human Rights, Cambridge University Press. New York 1999. Baxi, Upendra, The Future of Human Rights, Oxford University Press, New York 2002. Beckford, James, Cult Controversies: the Societal Response to the New Religious Movements, Tavistock, New York 1985. Beckford, James A., “The Mass Media and New Religious Movements” in New Religious Movements: Challenge and Response, B. Wilson and J. Cresswell (eds.), Routledge, New York 1999. Bell, Daniel A., East Meets West: Human Rights and Democracy in East Asia, Princeton University Press, Princeton, NJ 2000. Bloom, Irene, J., Paul Martin, and Wayne L. Proudfoot, (eds.) Religious Diversity and Human Rights, Columbia University Press, New York 1996.


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Boyle, Kevin, “Religious Intolerance and Incitement to Religious Hatred” in Striking a Balance: Freedom of Expression, Hate Speech and NonDiscrimination, S. Coliver (ed.): Article XIX and University of Essex, London 1992. Cahill, Lisa Sowle, “Rights as Religious or Secular: Why Not Both?” in Journal of Law and Religion 14 (1), 1999-2000: 41-52. Castells, Manuell, The Information Age: Economy, Society and Culture. Vol. Vol. I: The Rise of the Nework Society; Vol. II The Power of Identity; Vol. III End of Millennium, Blackwell, Oxford 1996. Cook, Rebecca (ed.), Human Rights of Women: National and International Perspectives, University of Pennsylvania Press, Philadelphia 1994. Cowan, Jane K., Marie-Benedicte Dembour, and Richard A. Wilson, (eds), Culture and Rights: Anthropological Perspectives, Cambridge University Press, New York 2001. Crahan, Margaret E., “Religion and Societal Change: The Struggle for Human Rights in Latin America” in Religion and Human Rights: Competing Claims?, C. Gustafson and P. Guviler (eds.), M.E. Sharpe, Armonk, NY 1999. Douzinas, Costas, “Justice and Human Rights in Postmodernity” in Understanding Human Rights, C. Gearty and A. Tomkins (eds.), Pinter, New York 1996. Eickelman, Dale F. and Jon W. Anderson, (eds.) New Media in the Muslim World: The Emerging Public Sphere, Indiana University Press, Bloomington, IN 1999. Evans, Caroline, Freedom of Religion Under the European Convention on Human Rights, Oxford University Press, NewYork 2001. Faure, Veronique, “L’occulte et le politique en Afrique du Sud” in Dynamiques religieuses en Afrique australe, V. Faure (ed.), Karthala, Paris 2000. Freeman, M., “Are There Collective Human Rights?” in Political Studies (43 Spectrum Issue), 1995: 25-40. Freeman, Michael, “Liberal Democracy and Minority Rights” in Human Rights: New Perspectives, New Realities, A. Pollis and P. Schwab (eds.), Lynne Rienner, Boulder, CO 2000. Glendon, Mary Ann, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, Random House, New York 2001. Gunn, T. Jeremy, “Caesar’s Sword: the 1997 Law of the Russian Federation on the Freedom of Conscience and Religious Association” in Emory International Law Review 43,1998. Gunn, T. Jeremy, “A Preliminary Response to Criticisms of the International Religious Freedom Act of 1998” in Brigham Young University Law Review (3) 2000: 841-865. Gunn, T. Jeremy, “The Organization for Security and Co-operation in Europe and the Rights of Religion or Belief” in The Protection of Religious Minorities in Europe: Human Rights Law, Theory and Practice, P. Danchin (ed.), Columbia University Press, New York 2001. Hackett, Rosalind I. J., “International Religious Freedom: the Talk of the Town” in Religious Studies News, 2001. Hackett, Rosalind I. J., “Prophets, ‘False Prophets’ and the African State: Emergent Issues of Religious Freedom and Conflict” in Nova Religio 4 (2), 2001:187-212.

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Hackett, Rosalind I. J., ”Discours de Diabolisation en Afrique et ailleurs” in Diogène 199, 2002:71-91. Hackett, Rosalind I. J., “Beyond Belief: Regulating Religious Freedom in Africa” in Harvard Human Rights Journal 16, 2003. Hackett, Rosalind I. J., “Human Rights: An Important and Challenging New Field for the Study of Religion” in New Approaches to the Study of Religion, A. Geertz, P. Antes and R. Warne (eds.), Verlag de Gruyter, Berlin 2003. Hackett, Rosalind I. J., “Mediated Religion in South Africa: Balancing Air-time and Rights Claims” in Media, Religion and the Public Sphere, B. Meyer and A. Moors (eds.), James Currey, London 2003. Hackett, Rosalind I. J., Beyond Belief: Regulating Religious Freedom in Africa, forthcoming. Hackett, Rosalind I. J., “Competing Universalisms: New Discourses of Emancipation in the African Context” in The Encounter of ‘Rationalities’, P. Hountondji (ed.), Porto-Novo, Benin Republic, forthcoming. Hackett, Rosalind I. J., Mark Silk, and Dennis Hoover (eds.), Religious Persecution as a U.S. Policy Issue, Center for the Study of Religion in Public Life, Hartford, CT 2000. Hannum, Horst, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights, University of Pennsylvania Press, Philadelphia 1996. Hastrup, Kirsten, (ed.) Human Rights on Common Grounds: The Quest for Universality, Kluwer, The Hague 2001. Henkin, Louis, “Religion, Religions, and Human Rights” in Journal of Religious Ethics 26 (2 (Fall)) 1998:229-239. Henkin, Louis, “Human Rights: Ideology and Aspiration, Reality and Prospect” in Realizing Human Rights: Moving from Inspiration to Impact, S. Power and G. Allison (eds.), St. Martin’s Press, New York 2000. Hervieu-Leger, Daniele, “France’s Obsession with the "Sectarian Threat"” in Nova Religio 4 (2) 2001. Howard-Hassmann, Rhoda E, “Multiculturalism, Human Rights, and Cultural Relativism: Canadian Civic Leaders Discuss Women’s Rights and Gay and Lesbian Rights” in Netherlands Quarterly of Human Rights 18 (4) 2000: 493-514. Howland, Courtney W. (ed.), Religious Fundamentalisms and the Human Rights of Women, St. Martin’s Press, New York 1999. Ignatieff, Michael, Human Rights as Politics and Idolatry, Princeton University Press, Princeton, NJ 2001. Jensen, Jeppe Sinding, “On Universals in the Study of Religion” in Secular Theories on Religion: Current Perspectives, T. Jensen and M. Rothstein (eds.), Museum Tusculanum Press, Copenhagen 2000. Johnson, Paul Christopher, “Law, Religion, and ‘Public Health’ in the Republic of Brazil” in Law and Social Inquiry: Journal of the American Bar Foundation 26 (1) 2001: 9-33. Juergensmeyer, Mark, “The Debate over Hindutva” in Religion 26 (2) 1996: 129-135.


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Juergensmeyer, Mark, Terror in the Mind of God: The Global Rise of Religious Violence, University of California Press, Berkeley and Los Angeles 2000. Kelsay, John and Sumner B. Twiss, (eds.). Religion and Human Rights, The Project on Religion and Human Rights, New York 1994 Kymlicka, Will (ed.), The Rights of Minority Cultures, Oxford University Press, New York 1995. Lauren, Paul Gordon, The Evolution of International Human Rights: Visions Seen, University of Pennsylvania, Philadelphia1998. Lawrence, Bruce B, Shattering the Myth: Islam Beyond Violence, Princeton University Press, Princeton, NJ 1998. Lease, Gary, “Follow the Genes: Religion as a Survival Strategy” in Secular Theories on Religion, T. Jensen and M. Rothstein (eds.), Museum Tusculanum Press, Copenhagen 2000. Lindholm, Tore, “Article One” in The Universal Declaration of Human Rights, A. Eide, G. Alfredsson and G. Melander (eds.), Kluwer, The Hague 1999. Lindholt, Lone, Questioning the Universality of Human Rights: The African Charter on Human and People’s Rights in Botswana, Malawi and Mozambique, Ashgate, Dartmouth 1997. Lister, Ruth, Citizenship: Feminist Perspectives, Macmillan, London 1997. Lord, Karen S., “Growing Religious Intolerance in Western Europe” in Freedom of Religion: A Precious Human Right, J. M. M. Naber (ed.) van Gorcum, Assen, the Netherlands 2000. McCutcheon, Russell T., Critics Not Caretakers: Redescribing the Study of Religion, State University of New York Press, Albany, NY 2001. McLagan, Margaret, “Spectacles of Difference: Buddhism, Media Management, and Contemporary Tibet Activism” in Polygraph: An International Journal of Culture and Politics 12, 2000: 101-120. Mndende, Nokuzola.. “From Underground Praxis to Recognized Religion: Challenges Facing African Religions”. Journal for the Study of Religion 11 (2), 1998: 115-124. Mutua, Makau, “Returning to My Roots: African ‘Religions’ and the State” in Proselytization and Communal Self-Determination in Africa, A. A. An-Na’im (ed.), Orbis, Maryknoll, NY 1999. Mutua, Makau, “Savages, Victims, and Saviors: The Metaphor of Human Rights” in Harvard International Law Journal 42 (1), 2001: 201-245. Naber, Jonneke M. M. (ed.), Freedom of Religion: A Precious Human Right, van Gorcum, Assen, the Netherlands 2000. Nussbaum, Martha C., “Religion and Women’s Human Rights” in Religion and Contemporary Liberalism, P. Weithman (ed.), University of Notre Dame, Notre Dame, IN 1997. Nussbaum, Martha C., Women and Human Development: The Capabilities Approach, Cambridge University Press, New York 2000. Nye, Malory, “Minority Religious Groups and Religious Freedom in England: The ISKCON Temple at Bhaktivedanta Manor” in Journal of Church and State, 1998.

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Nye, Malory, Multiculturalism and Minority Religions in Britain: Krishna Consciousness, Religious Freedom, and the Politics of Location, Curzon, London 2001. O’Leary, Stephen, Arguing the Apocalypse: A Theory of Millennial Rhetoric, Oxford University Press, New York 1994. Ong, Aihwa, “Clash of Civilisations or Asian Liberalism? An Anthropology of the State and Citizenship” in Anthropological Theory Today, H. L. Moore (ed.), Polity Press, Cambridge 1999. Parekh, Bhikhu, “Non-Ethnocentric Universalism” in Human Rights in Global Politics, T. Dunne and N. J. Wheeler (eds.), Cambridge University Press, New York 1999. Power, Samantha, and Graham Allison, (eds.). Realizing Human Rights: Moving from Inspriation to Impact, St. Martin’s Press, New York 2000. Quashigah, E. K. “Religious Freedom and Vestal Virgins: The Trokosi Practice in Ghana” in RADIC 10, 1998:193-215. Rabinow, Paul, “Midst Anthropology’s Problems” in Cultural Anthropology 17 (2), 2002: 135-149. Richardson, James, “Religions, Law, and Social Control” in Frontier Religions in the Public Sphere, P. Cote (ed.), University of Ottawa Press, Ottawa 2000. Richardson, James T., “Minority Religions ("Cults") and the Law: Comparisons of the United States, Europe and Australia” in University of Queensland Law Journal 18 (2), 1995: 183-207. Richardson, James T., “Minority Religions, Religious Freedom, and the New PanEuropean Political and Judicial Institutions” in Journal of Church and State 37 (1 (Winter)) 1995:1-59. Rorty, Richard, “Human Rights, Rationality and Sentimentality” in On Human Rights. The Oxford Amnesty Lectures 1993, S. Shute and S. Hurley (eds.), Basic Books, New York 1993. Rorty, Richard, “Human Rights, Rationality and Sentimentality” in Truth and Progress: Philosophical Papers (VOL 23), R. Rorty (ed.), Cambridge University Press, Cambridge 1998. Sardar, Ziauddin, Postmodernism and the Other: The New Imperialism of Western Culture, Pluto, London 1998. Sharma, Arvind, “Human Wrongs and Human Rights” in Human Rights: Positive Policies in Asia and the Pacific Rim, J. T. Montgomery (ed.), Hollis Publishing Co. Hollis, NH 1998. Sharma, Arvind, “Comment” in Journal of Religious Ethics 28 (1), 2000:159-164. Shterin, Marat, “Legislating on Religion in the Face of Uncertainty” in Law and Informal Practices in Russia, J. Callaghan and M. Kurkchian (eds.), Clarendon Press, Oxford 2001. Shweder, Richard, Martha Minow, and Hazel Markus (eds.), Engaging Cultural Difference: The Multicultural Challenge to Liberal Democracies, Russell Sage, New York 2002.


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Stackhouse, Max L., and Stephen E. Healey, “Religion and Human Rights: A Theological Apologetic” in Religious Human Rights in Global Perspective: Religious Perspectives, J. J. Witte and J. D. v. d. Vyver (eds.), Martinus Nijhoff, The Hague 1996. Sullivan, Winnfred Fallers, “Neutralizing Religion or What is the Opposite of ‘Faith-based’?” in History of Religions 41 (4), 2002. Sullivan, Winnifred Fallers, Paying the Words Extra: Religious Discourse in the Supreme Court of the United States, Harvard University Press, Cambridge, MA 1994. Tahzib-Lie, Bahia, “Applying a Gender Perspective in the Area of the Right to Freedom of Religion or Belief” in Brigham Young University Law Review (3), 2000 :967-988. Taylor, Mark C, The Moment of Complexity: Emerging Network Culture, University of Chicago Press, Chicago 2001. Tschuy, Theo., Ethnic Conflict and Religion: Challenge to the Churches, World Council of Churches, Geneva 1997. Urry, John, Global Complexity, Polity, Oxford 2003. van der Vyver, J. D., “Religious Freedom in African Constitutions” in Proselytization and Communal Self-Determination in Africa, A. A. An-Na’im (ed.), Orbis Maryknoll, NY 1999. Villa-Vicencio, Charles, “Identity, Difference and Belonging: Religious and Cultural Rights” in Religious Human Rights in Global Perspective, J. Witte, Jr. and J. D. van der Vyver (eds.), Martinus Nijhoff, The Hague 1996. Wanyeki, Muthoni (ed.), Women and Land in Africa: Culture, Religion and Realizing Women’s Rights. Edited by A. An-Na’im, Zed Books, New York 2003. Witte, John, “A Dickensian Era of Religious Rights: An Update on Religious Human Rights in Global Perspective.” William and Mary Law Review 42 , 2001:707-799. Witte, John, and Johan D. van der Vyver, (eds.) Religious Human Rights in Global Perspective: Religious Perspectives, Martinus Nijhof, The Hague 1996. Yuval-Davis, Nira, and Pnina Werbner (eds.) Women, Citizenship and Difference, Zed Books, New York 1999.

The Charter on Human Rights A Philosophical Analysis with Special Regard to the Question of Rationalism vs. Relativism D AV I D F AV R H O L D T In dealing with the Charter on Human Rights one must necessarily refer to a framework of concepts which are beyond discussion and should be accepted by all human beings. This presupposes a theory of knowledge which in some but not all respects is incompatible with relativism as a general point of view. It is possible to establish this basis in form of a fundamental language common to all tongues. With this at hand we are able to discuss cultural differences and distinguish between necessary and contingent cultural features and furthermore clarify some of the concepts in the Charter, especially those pertaining to individuality, freedom and equality. In discussing the status of the Charter on Human Rights we inevitably run into a number of philosophical problems. First of all, one may ask what should be understood by some of the key concepts such as ‘freedom’, ‘equality’, ‘democracy’, and ‘dignity’ and in addition ‘human being’ which also is in need of a definition – the literature about these items is very large. Next one may ask just how the Charter on Human Rights should be enforced. In some of the many nations that have signed and accepted it it is not observed in its entirety. In practise many of the articles are violated in several countries, even in Denmark, and many years will pass before all national laws are in accordance with the fundamental principles concerning the access to rights and freedom without distinction of any kind, such as race, colour and sex. The Charter is in conflict with a great amount of standards and norms in many communities and it will take some generations before things are smoothened. In my opinion we should take these difficulties into account and face the fact that we are dealing with a project which it will take very long time to fulfil. One should not try to speed it up by allowing exceptions such as positive separate rights for women over an indefinite period. We must be patient and furthermore we must be prepared to revise the Charter over and over again for many years to come. The main goal of the Charter is to attain peace on earth and promote justice and happiness through respect for the dignity of the individual. The great number of wars and infringement of minorities since 1948 tells us that we must analyze the social movements and political tensions continuously and that the final goal is not and will not be within reach for many decades to come. Last but not least the Charter on Human Rights is in need of some sort of justification. It is introduced as an agreement and countries that are members of the United Nations may sign or not sign, but it presents itself as the right or true political philosophy and the correct ethical stance.

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It is exactly this last problem I shall deal with in what follows. I am not aiming at a justification of the Charter – which would be far too ambitious – but I intend to clarify what the conditions are in order to establish a justification or at least discuss this problem. Through a clarification of these conditions we may counter many of the objections which have been forwarded against the Charter. Let us take a look at the Charter’s article 2: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The problematic concepts in this article are “religion, political or other opinion”. Most religious views are tied up with a practice of some sort and the same applies to political opinions. According to article 19 and 20 freedom of opinion includes the right to impart information and ideas through any media and regardless of frontiers and the right to peaceful assembly and association. In my view neither religion nor political opinion should be referred to in the article 2 and I shall try to explain this view in what follows. Scientists have discussed how religion should be defined – whether religion is to be defined as a belief in something supernatural, or whether it should comprise certain forms of mental practice – of the sort we meet with in the Hinayana Buddhism. In addition there are difficulties in drawing a distinction between religion and ideology. In a certain sense Nazism may be considered a religion. And similarly it is in many cases impossible to distinguish between religion and ethics in practice. The problem of definition, however, has no importance for the further discussion. We may begin with the statement that many religions exhibit standards, prescriptions and restrictions that violate the Charter on Human Rights – and this is why religion should be left out in article 2. We need only consider the restrictions which women must obey in the Islamic communities, or the castesystem practised by the Hindus. Or, to mention some more examples: According to the main part of the variants of Christianity persons that are not baptized will end up in hell on doomsday and therefore are second-rate persons. The Jehovah witnesses forbid blood-transfusion – even to their children when they are lethally ill. I consider astrology a sort of religion and the way it is practised in Denmark it is in conflict with the Charter. More that 200 Danish private firms consult astrologists when evaluating applicants for a job. Many applicants are dismissed solely because they are born in the wrong constellation. We have many good reasons not to tolerate religious dogmatism. A Charter on Human Rights cannot accept any limitation of individual freedom on the basis of religious standards. As to the political opinion mentioned in article 2 we meet with similar problems. The Charter on Human Rights has been criticized because of its liberalistic flavour which stems from John Locke. The article 17 states that everyone has the right to own property and this is not in harmony with certain forms of communistic ideology as practised for instance in the deceased Soviet-Union where the State capitalism was seen as the true economic system and where

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personal security and the right to work (compare article 23: Everyone has the right to work) had a higher priority than individual freedom. I do not know why religion and political opinion is mentioned in article 2. The fathers of the Charter may have found some inspiration in the French Declaration on Human Rights from 1789 in which religious views are mentioned. But the philosophy behind undoubtedly is what we call cultural relativism and relativism in general. Relativism is a widespread view in especially American philosophy after the Second World War and cultural relativism is an extremely popular view among anthropologists and sociologists. Every culture is considered a culture in its own right and – so the argument goes – why should one culture be better than any other? Who can decide on this question without applying standards from his own culture? We must be tolerant: No culture is better than any other. It is a common belief that relativism means tolerance whereas rationality implies intolerance. But this is a false belief. A true relativist is bound to tolerate anything, even terrorism. The rationalist seeks for good grounds to distinguish between good and bad cultures. Although he may not be able to produce justifiable ethical standards he is able to characterize some cultures as harmless and others as destructive to others or even to themselves. Strange to say, the relativism to be found in the Charter has not prevented the authors of it from adopting a number of principles which have their origin in Western Culture and to a certain extent are alien to most of the other cultures. This goes for the concepts of liberty and equality and also for democracy which without any argument or further specification is considered superior to dictatorship, enlightened monarchy, feudalism etc. Cultural relativism is part of the relativism that has ravaged Western philosophy over the last fifty years. Its counterpart is rationality. In what follows I advocate rationality. Rationality is a necessary condition for speaking of Human rights at all. Rationality is the great achievement of Western culture and the reason for giving Western culture priority in comparison with other cultures. We must acknowledge this and in this manner justify that The Charter on Human Rights should be based on ideas which have their origin in Western Culture. At the same time, however, we must distinguish between standards and norms which may be trans-cultural and those which are typical western and tied up with our whole political system. In my opinion articles 23 and 24 dealing with the right to work, to form trade unions, the right to rest and leisure, to holidays with pay etc. are western in character and in no way fundamental. Before explaining what should be understood by a rational approach I should like to substantiate my remarks on relativism. One of the best known stories which everybody studying anthropology has to learn is the so-called Sapir-Whorf hypothesis according to which the Hopiindians have a world-view totally different to ours. Sapir states that “It is quite an illusion to imagine that one adjusts to reality essentially without the use of language and that language is merely an incidental


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means of solving specific problems of communication or reflection. The fact of the matter is that the ‘real world’ is to a large extent unconsciously built up on the language habits of the group. ... We see and hear and otherwise experience very largely as we do because the language habits of our community predispose certain choices of interpretation.”1 And again: “We dissect nature along lines laid down by our native languages. The categories and types that we isolate from the world of phenomena we do not find there because they stare every observer in the face; on the contrary, the world is presented in a kaleidoscopic flux of impressions which has to be organized by our minds – and this means largely by the linguistic systems in our minds.”2 This Sapir-Whorf hypothesis has been taught and accepted at just about all universities in the Western world despite the fact that it is a hoax. According to Steven Pinker Whorf states that the tongue of the Hopi’s has “no words, grammatical forms, constructions, or expressions that refer directly to what we call ‘time’, or to past, or future, or to enduring or lasting.” This is a pure fabrication. In the Hopi language we find verbs with tempus, words for days, number of days, for yesterday, to-day, to-morrow, for years etc. In the Hopi-tongue we meet with ordinary descriptions such as: “Then indeed, the following day, quite early in the morning at the hour when people pray to the sun, around that time then he woke up the girl again.”3 Of course, we cannot deny that different tongues have different categories. For instance, this is true when it comes to colours. In Shona language – spoken in Zambia – ‘cicena’ covers yellow and half of what we call orange in the colourspectrum, while ‘cipswuka’ designates the other half of orange and red. In the Bassa tongue – spoken in Liberia – we find no distinctions between red, orange and yellow, which in one are named ‘ziza’. In Bellona language we find three colour words only: red, black or dark and white. In certain respects the 6000 tongues to be found on our planet are incongruent. The examples are manifold. Just to mention some more: The French word ‘mouton’ covers not only the English ‘sheep’ but also the English ‘mutton’. The Danish word for tree, ‘træ’, applies not only to the individual tree but to tree as material as well, where

1 Benjamin Lee Whorf: Language, Thought, and Reality, The M.I.T. Press, 1956. p. 134. 2 Steven Pinker: The 3 Pinker, op. cit. p. 63.

Language Instinct, Penguin Books, London 1995. p. 59.

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German has a distinction between ‘Baum’ and ‘Holz’. Many African tongues have no words for ‘development’, ‘preservation’ and ‘progress’ – and so on. Many linguists and philosophers have generalized from these facts to the view that language determines peoples outlook and conception of reality and that the different tongues may be totally different to each other. They find support for this view in Saussure’s and Louis Hjelmslev’s structural linguistics. According to the American philosopher W. v. O. Quine, there will always be indeterminacy in the translation from one tongue to another. In support of this “Principle of indeterminacy in translation” he gives an example: An anthropologist visits a tribe that speak a language different to English. He goes for a walk with one of the natives and suddenly a rabit crosses the field. The native says ‘Gavagai’ and now the anthropologist tries to translate this word. It is likely that he would choose the word ‘rabbit’ but, says Quine, the anthropologist will never know whether the native person in saying ‘Gavagai’ means: ‘Rabbit’, or ‘Rabbit-like’ or ‘I see something Rabbit-like’ or something quite different.4 In accordance with this view Quine states in his article Two Dogmas of Empiricism:5 “The totality of our so-called knowledge or beliefs, from the most casual matters of geography and history to the profoundest laws of atomic physics or even of pure mathematics and logic, is a man-made fabric which impinges on experience only along the edges.” And he goes on to maintain that all science, what we know of within physics, chemistry, biology etc., although it has more credibility than Greek mythology, yet is not closer to the truth than the belief in the Greek Gods. Feyerabend states this in a more open way: All the science we know of is no better than voodoo. This view concerning science and rationality finds support in many other lines of thought. One of them is Th. S. Kuhn’s theory about scientific revolutions – Feyerabend found much inspiration here. As most of you know Kuhn describes features of the sociology of science. A scientist follows one or more paradigms in his daily work, mostly subconsciously, and the paradigms comprise the standards for normal science. But in between the scientists come across anomalies and as these pile up a crisis appears. This leads to doubt about the paradigm and in time to a revolution where the standards of explanation are done with and a new paradigm is introduced. Seen in the large perspective one may say that the history of physics exhibits three main paradigms, the first 4 W. v. O. Quine: Ontological Relativity and other Essays, New York 1969, p. 46. See also

Quine: Word and Object, New York 1960. In his book The Diversity of Meaning, London 1962, L. J. Cohen calls this “the most elaborate defence of Whorf’s thesis that has yet been attempted”. See pp. 67-74. 5 W. v. O. Quine: From a Logical Point of View. Harper and Row, New York 1963, pp. 4244. A devastating critic of Quine’s view is forwarded in Susan Haack: Evidence and Inquiry, Blackwell, 1993 and Laurence Bonjour: In Defence of Pure Reason, Cambridge University Press, 1998.


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marked by Aristotle and Ptolemy, the second by Galileo and Newton and the third by Einstein and Bohr. What Kuhn and his followers overlook is that the two last mentioned paradigms form one paradigm which is in total contrast to Aristotle and Ptolemy, namely that physics must deal with the quantitative and not the qualitative aspect of our environment. In stead Kuhn states that paradigms are incommensurable. We may choose the paradigm we wish to choose. Each paradigm comprises questions pertaining to its problems and gives answers to them, but no paradigm is better of than any other. Kuhn himself did not like this relativistic conclusion but could not find a way to avoid it. The relativism manifests itself in the view that we somehow create reality. The well known philosopher Richard Rorty is opposed to the idea that there are basic distinctions between things built into the very nature of reality. Reality has no inherent structure waiting to be discovered by human beings. It is our social practices that impose a structure on our surroundings. Here Rorty is inspired by the later Wittgenstein, by American pragmatism and to a certain extent by historicism. One could also refer to Immanuel Kant, as does Knorr-Cetina in the article “Strong Constructivism – From a Sociologist’s Point of View”, in Social Studies of Science, 1993. Reality has no structure in itself, she maintains. Kant pointed out that we must distinguish between the world in itself and the world as it appears to us. In itself the world has no structure. We must conceive of it as a dough, Knorr-Cetina writes, which we may cut up in many different ways. All scientific theories must be seen as ‘cookie-cutters’, that are socially constructed incisions in the amorphous dough. Social constructivism is a widespread and widely accepted philosophy, especially in the Western world. According to leading social constructivists all what we name facts are social constructs. Good examples of social constructs are our time-system, our money-system, including banks, shares, interest etc., laws such as traffic-rules, criminal codes, educational systems, including schools, universities etc. But social constructivists, such as Bruno Latour, Steve Woolgar and H. M. Collins go further and declare that all scientific theories, discoveries and results are social constructs. Electromagnetism, for instance, which is based on the discovery that magnetism and electricity influence each other, does not correspond with anything real, simply because also reality is a social construct. In Collins’ words “It is not the regularity of the world that imposes itself on our senses but the regularity of our institutionalized beliefs that imposes itself on the world.”6 According to Latour and Woolgar there is no difference between discoveries and inventions. When recent examinations of the mummy of Ramses the second revealed that he died from tuberculosis, Latour maintained that this was impossible because the tuberculosis-bacillus was not discovered and socially constructed by Robert Koch before 1882. As Latour puts it: “Before Koch the bacillus has no real existence.”7 Woolgar even maintains that America did not 6 H. M. Collins: Changing Order. Replication and Induction in Scientific Practice,

University of Chicago Press 1985, p. 148. 7 See A. Sokal and J. Bricmont: Intellectual Impostures. Postmodern Philosophers’ Abuse

of Science. Profile Books, London 1998, pp. 88-89.

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exist until Columbus discovered it and Amerigo Vespucci created the social construction we name America.8 What we call true theories and crucial observations within the natural sciences are in the eyes of social constructivists nothing but results of negotiations followed up by agreements among scientists. Here the social constructivists are in good company with anti-realists and postmodernists. Inspired by the later Wittgenstein, Lyotard, the postmodernist, states: “It is recognised that the conditions of truth, in other words the rules of the game of science, are immanent in that game, that they can only be established within the bounds of a debate that is already scientific in nature, and that there is no other proof that the rules are good than the consensus extended to them by the experts.”9 As said before, relativism dominates the philosophical world and cultural relativism dominates the field of anthropology. Now, if relativism is to be considered the last word in all theory of knowledge many human undertakings become absurd. As Roger Trigg has pointed out, many environmentalists are in a peculiar situation when they on the one hand fight against pollution, holes in the ozon-belt and the contamination caused by carbondioxyde while on the other hand they maintain that we never have conclusive proofs of anything within science. Also it is absurd to worry about the asteroid named “1997 XF11” which according to the astronomer’s calculations will collide with the earth October the 26th year 2028. According to the social constructivists, postmodernists and other relativists the scientists simply are able to alter the rules of the game of science and make an agreement that it will not happen – because consensus is the only truth maker. Furthermore, as Meera Nanda has pointed out10 medical help to underdeveloped countries makes no sense. If cultural relativism comprises science then modern medical treatments are no better nor no worse than witch-craft. As to the Charter on Human Rights, relativism leads us into a blind alley. We have no reason to expect that all nationalities accept the Charter in all its details and we cannot deliver any proofs of the articles. However, in analysing them and discussing their range and applicability we must have a rational base to start from. Otherwise we cannot counter the objection that all the arguments in favour of the Charter simply are arguments based on Western science and logic which, according to cultural relativism, have no primacy in relation to other cultural views. I have written some books and articles on just how we find such a base for rationality. However, here I cannot give more than a sketch only of my viewpoints. Language may be used in many ways and I believe all of you are acquainted 8 See Steve Woolgar: Science. The Very Idea, Tavistock 1988. 9 Lyotard, J.-F.: The Postmodern Condition: A Report on Knowledge. Manchester University Press, 1985, p. 29. 10 Meera Nanda: “The Epistemic Charity of the Social Constructivist Critics of Science and Why the Third World Should Refuse the Offer” in Loretta Koertge: A House Built on Sand, Oxford University Press 1998.


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with this fact through Wittgenstein’s theory of language games. However, one use of language is fundamental, namely the descriptive unambiguous use. Even Wittgenstein would have had to admit this, because it is exactly this use of language he had to use when presenting his theory of language games. Now in this descriptive, unambiguous use of language which I in what follows will call fundamental language we have a number of concepts that are necessary if we wish to describe something and communicate about something in an unambiguous manner. Here I shall mention only some of these concepts: In the fundamental language we must obey the rules of two-valued logic, and we must have rules for the application of concepts such as thing or object, time-indication, position, person, body, action, identification, re-identification, thinking, cardinal numbers, sense-organ, perception, private experiences, memory, recognition. Now, the point is that we are not able to understand any of these concepts in isolation. Each of the concepts can be understood only in connection with some of the other concepts, and consequently all of the concepts directly or indirectly are implied in the understanding of each of the concepts. For instance, we cannot speak of thinking unless we understand or follow the principles of twovalued logic. But these, in their turn cannot be understood independently of the concept of time. The principle of contradiction, for instance, may be formulated thus: A thing cannot both exist and not exist at one and the same point of time. It may be formulated in various other ways, but we always have to add the phrase “at one and the same point of time”. However, we are not able to understand what is meant by a point of time unless we have the concept of coincidence between two objects, say a hand of a watch and a mark or number. Again, we cannot speak of objects unless we speak of them as having certain locations in space and time. If we speak of private experiences or sensations, impressions, sense-data or whatever we may call them, we are forced to use words designating sense-organs, bodies and persons. If we speak of experience at all we must speak of subjects having these experiences, subjects that are able to think, to remember, to recognize etc. In speaking of bodies and objects we must necessarily speak of our actions and possibilities of action. In order to describe and communicate in an unambiguous manner we must use all of these fundamental concepts in a certain way which we may call the correct use. This correct use is forced upon us by the structure of the world or reality on the one hand and the way we obtain knowledge of the world on the other. Concepts such as object, time and position are not defined arbitrarily. They depend upon each other. If we wish to describe even simple situations such as “the plate is on the table and not on the floor”, we are able to do so only if we apply our concepts in a certain manner. Or to take another example: If you run from A to B it takes some time. But the faster you run the less time does it take. Here we have a relation between the concepts body, distance, velocity, movement and time. If we intend to describe this simple experience we must use these concepts in a certain way. Having acknowledged this we may define velocity as equal to distance divided by passed time. But the correct use is prior to this definition and hence the definition is not arbitrary.


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The amount of languages or tongues in the world is approximately 6000. They differ as to grammar, syntax, vocabulary and also in other respects. As mentioned, the classification of the colours exhibit a great variety. However, the fundamental language is an integral part of all these 6000 languages or tongues. This, of course, explains why any language may be translated into any other, in spite of Quine’s objections, and why we are able to point to the differences in classifications of colours, emotions etc. And the reason for this fact is, of course, that reality and the way it is experienced is the same to all human beings no matter how great the differences may be in culture, religion, language, tradition etc. No matter whether you are an Englishman, an Italian or a Chinese you will experience that if you run from A to B it takes some time, and that the faster you run the less time does it take. In all languages and cultures it is accepted that an object cannot be in two places at one and the same point of time, or that a dream which nobody has cannot occur. Radical social constructivists would of course deny what I am saying here and many have already done so not knowing my arguments.11 The social constructivists may be right in a certain sense when they maintain that all concepts are man-made. Before human beings entered the scene no concepts were there. However, social constructivists fail to notice that the relations between the concepts – or the way we must use them in order to establish univocal communication – are not man-made. To take a simple example: The concepts of circle, diameter and circumference may be man-made. But the relation between the diameter and the circumference of a circle, π, is an irrational number, an infinite, non-periodical decimal. π is not man-made, it is discovered. In addition to the concepts belonging to the fundamental language already mentioned there are a number of others. Those mentioned seem to occur in all of the 6000 tongues. Now, since we are able to find a base of rationality we are able to discuss ethical problems and human rights. Maybe we cannot solve all of the problems, but in any case we can discuss them. And we are able to prove that many ethical views and many norms and standards in the various cultures and religions are arbitrary. Next we may argue that norms and standards which are in conflict with The Charter on Human Rights should be eradicated, wiped out. This must be done through education and therefore probably will take very long time. Next, the question is whether all the different cultures we know of have any ethical principles and norms and standards in common. If not, The Charter of Human Rights has no foundation at all. I believe that there is a way to find a positive answer to this question. The history of biological evolution is the history of millions of species all of which fight or have fought for survival. Some did not survive, for instance the dinosaurs that were extinguished around 60 millions years ago. Others have had a better fate, for instance the king crab which fairly unaltered has been on the 11 Barnes and Bloor: “Relativism, Rationalism and the Sociology of Knowledge” in Hollis

and Lukes: Rationality and Relativism, Blackwell 1982.


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stage for 600 millions years. Human beings arouse some hundred thousand years ago, maybe more. Until nine thousand years ago, maybe less, they lived in small tribes as hunters. Then settlements arose, to begin with based on animal husbandry and later on agriculture as well. During the thousands of years as hunters a number of instincts were developed in order that human beings could survive. These instincts are still there, written into our genetic equipment. Back in 1908 William MacDougall, an Englishman and one of the most brilliant writers on biology and anthropology made an attempt to uncover the fundamental instincts of man. In his Introduction to Social Psychology (1908) he points out twelve instincts: To desire food, to reject certain substances or things, to explore new places, to escape from danger, to fight when challenged, to have sex desire, to care for the young (mothering), to seek company (gregariousness), to seek to dominate (selfassertion), to accept inferior status (submission), to make things and to collect things. Apart from the two last ones these instincts are to be found in many mammals, – wolves, lions, tigers etc. Since the times of MacDougall the reference to instincts in explaining human behaviour has been criticized. Above all it has been emphasized that instinct-based behaviour is modified to a high degree by the social environment and cultural factors. Of course, this is true to a certain extent but does not rule out the need for hereditary causes in explaining human behaviour. And to day we know much more about genetics than MacDougall ever dreamt of. When human beings lived as hunters some of the mentioned instincts helped them to survive in their small tribes. Among these we may mention the desire for food, the exploration of new places, the escape from danger, the sex desire, mothering, and gregariousness. And I believe that these instincts, which we may call positive, are common to all human beings and form a base and a prerequisite for all ethical education. The instinct to fight when challenged has not had any function within the small tribes but naturally was developed in the fight between tribes about territory and spoils. Here aggressive liabilities were developed. If the enforcement of The Charter on Human Rights is to be based on argument and not on political power the task is to analyze every culture and uncover all religious dogmas, ethical dogmas and norms that stem from contingent circumstances, such as climate, geographical conditions, epidemics, superstition etc. In most cultures we meet with a vast amount of beliefs which have no rational basis but are handed over from generation to generation by means of indoctrination. Next one must face the fact that xenophobia and aggressive attitudes towards other cultures are based primarily on instincts common to all human beings. These instincts were necessary prerequisites for survival in the stone ages. To-day they need not be so if we are able to obtain a fair distribution of welfare, food-supply etc. All of this should be explained to all governments and all leaders of religions. Furthermore it should be pointed out that all cultures have some ethical norms in common, namely those which are based on the escape from danger, mothering, and gregariousness. Some may object that this is a

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hopeless undertaking and I am not to optimistic myself but it seems to me that a rational marketing of the Charter of Human Rights has been missing over the years from 1948 until now. Instead the policy has been to force nations to sign the Charter by means of trade agreements: if you sign here we will buy your oil and build dairies in your country. This policy is far too frail and ineffective in itself and should be followed up by what I called the rational marketing. As things are now, it seems to me that the theoretical work in connection with the acceptance of the Charter and the uneasy relationship between the Charter and religious values is some sort of social engineering: Human rights are violated within many religious communities. Is it possible to modify the religions so they some way or other may become compatible with the Charter? Is it possible, for instance, to modify Islamic religion in order to secure women’s rights? Is it possible to get rid of female genital mutilation without causing too much turbulence in the dogmatic systems? Is it possible to persuade or ‘buy’ protestant fundamentalists to give up some of their dogmas? This practice may be of some importance but in the long run all human beings or all leaders of opinion must realize that the religious dogmas have no rational basis but are beliefs stemming from the remote past and not accepted by means of free choice but spread from generation to generation through indoctrination. The same goes for a great number of ethical and cultural dogmas. On the other hand all cultures have a fundamental language in common and modes of reaction in common based on fundamental human instincts. No culture is found where the fellow-feeling which David Hume spoke of is lacking. All over the World people know what it means to help each other, to take care of the children and know what mothering and gregariousness is about. What is needed is that all learn to generalize these modes of reaction beyond their own culture. In addition they must learn to distinguish between rationality and belief, between rationality and relativism.

References Barnes and Bloor, “Relativism, Rationalism and the Sociology of Knowledge” in Hollis and Lukes, Rationality and Relativism, Blackwell, 1982. Bonjour, Laurence, In Defence of Pure Reason, Cambridge University Press, 1998. Bricmont, J. and Sokal, A., Intellectual Impostures. Postmodern Philosophers’ Abuse of Science, Profile Books, London 1998. Cohen, L. J, The Diversity of Meaning, London 1962. Collins, H. M., Changing Order. Replication and Induction in Scientific Practice, University of Chicago Press, 1985. Haack, Susan, Evidence and Inquiry, Blackwell, 1993. Lyotard, J.-F., The Postmodern Condition: A Report on Knowledge, Manchester University Press, 1985. Nanda, Meera “The Epistemic Charity of the Social Constructivist Critics of Science and Why the Third World Should Refuse the Offer” in Loretta Koertge: A House Built on Sand, Oxford University Press, 1998.


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Pinker, Steven, The Language Instinct, Penguin Books, London 1995. Quine, W. v. O, Word and Object, New York 1960. Quine, W. v. O, From a Logical Point of View, Harper and Row, New York 1963. Quine, W. v. O, Ontological Relativity and other Essays, New York 1969. Whorf, Benjamin Lee, Language, Thought, and Reality, The M.I.T. Press, 1956. Woolgar, Steve, Science. The Very Idea, Tavistock 1988.

The Metaethical Foundation of Human Rights1 E R I C H K L AW O N N I From a philosophical point of view, it is quite obvious that the idea of universal human rights2 must rely on presuppositions of a metaethical nature. The most important of these presuppositions is the possibility of an objective or absolute ethics, i.e. a system of moral truths which are valid ‘in themselves’, independently of changing individual or collective attitudes and opinions. In contemporary metaethical thinking this presupposition is quite often rejected, leaving the idea of human rights without any foundation. Even today it is a dominant metaethical view that moral judgments are expressions of feelings or attitudes, and that there is therefore no such thing as moral truths (at least not in the ordinary sense of the word truth) – and by implication no truths about human rights. I do, however, believe, that such ‘scepticist’ views of the nature of morality are fundamentally wrong, and that it is in fact possible to provide a rational foundation of the idea of universal human rights. In order to demonstrate this I will now outline a defense of an absolutistic metaethical theory, which could serve as the basis of human rights.3 First of all I wish to draw attention to a level in our moral intuitions, which we may call enlightened moral common sense. This is a level of morality, which seems to have a certain authoritative status relatively to philosophical theories of ethics, as we tend to reject such theories if they have ‘morally absurd’ consequences. As an example it can be mentioned that it is generally considered a difficulty for classical utilitarianism, which operates on the principle of the greatest happiness of the greatest number, that us seems to follow from this theory that the ancient Romans did the right thing by letting slaves be killed by lions in order to entertain the masses (the point being that the discomfort of a small number is outweighed by the total sum of pleasure of a large number). We do not just take such a conclusion ad notam. We regard it as unacceptable – which may either motivate a rejection of classical utilitarianism or attempts to show that it does not, after all, have the aforementioned consequence. 1 This article is an extended version of a paper which was originally designed for oral

presentation at the conference Human Rights, Democracy and Religion, held at The University of Southern Denmark in Odense, April 4-5 2002. The article has previously been published in Danish Yearbook of Philosophy, Vol. 38, 2003. 2 E.g. as according to the Universal Declaration of Human Rights, United Nations 1948. 3 The metaethical theory which I outline in this article has been presented in more detail in my book Udkast til en teori om moralens grundlag (Sketch of theory of the foundations of morals). Odense University Press, 1996.

T H E M E TA E T H I C A L F O U N D AT I O N O F H U M A N R I G H T S

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Another example is an objection to the Kantian doctrine of The Categorical Imperative. According to Kant it follows from the theory of The Categorical Imperative that it can never be morally correct to tell a lie – which would imply that somebody who, say, during World War 2, was hiding Jews in his cellar, and was asked about this issue by the Gestapo, was not entitled to tell a lie. The most he could do was not to say anything – which would have the same consequences as telling the truth, since it would invite to a closer investigation. Once again we do not just take this conclusion ad notam. We either reject or modify the ethical theory, or we attempt to show that it does not, after all, have the consequence in question. These examples lend support to the view that some of our moral intuitions are so firm and stable that we tend to reject any theory which contradicts them. Here it should of course also be noted that morals is not the product of a theory of morals. It is a phenomenon which exists before theories of ethics, and which such theories are about. Therefore it is quite natural that pre-given moral intuitions may serve as a criterion of the validity of theories about the nature of morality. It is of course obvious that not all kinds of moral intuitions are equally suited for the role as an instance of court relatively to theories of ethics. The moral wrongness of unusual sexual activities may well have been common sense during a certain period – but this kind of common sense could hardly serve as a criterion for the validity of philosophical theories of ethics. On the other hand: the view that it is morally wrong to kill or mutilate other people for the fun of the thing seems to be an intuition of a more firm and stable nature. We could not easily adopt the view that our verdict on this issue is just an expression of a cultural prejudice – and that a correct theory of ethics could therefore imply the moral acceptability or even the praiseworthiness of such an act. Therefore it is central metaethical issue to supply a foundation of a kind of enlightened moral common sense which may also serve as the basis of universal human rights – which is, however, not the same thing as providing an argument for all kinds of moral common sense.

II In the following I shall attempt to show that enlightened moral common sense – as opposed to ordinary common sense – can be rationally reconstructed on the basis of 3 elements: prima facie value, rational administration of value and empathy. In order to substantiate this contention the nature of the aforementioned 3 elements should be taken into account. The term prima facie value refers to positive or negative value-characters within the lifeworld – or (to introduce what I regard as a useful technical term) ‘the own-sphere’ – of an individual subject. Pain is an example of a prima facie negative value, pleasure is an example of a prima facie positive value. They are, properly speaking, only prima facie values, because they can be relativized or

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E R I C H K L AW O N N

annulled by a further value context. For instance, under normal circumstances the pain of dental treatment can be tolerated as a means to avoid a prolonged toothache, and some pleasures should be avoided, because they lead to pain and frustration in the long run. On my view value proper is a kind of prima facie value which is not annulled or relativized by a further value-context. For the sake of convenience (and in so far as it does not tend to cause confusion), I do, however, often use the term value as a designation of both value proper and prima facie value. In this connection I wish to direct attention to a phenomenon, which we may call value-pressure or the imperativity of value.4 A proper understanding of this phenomenon may lead to an understanding of the nature of rational administration of value and in a wider perspective to an understanding of the specific moral nature of certain types of rational administration of value. Let us consider an example of a simple, prima facie negative value-character – pain. What makes pain a negative value-character is the fact that, as part of its own nature, it contains a certain aversive aspect. Pain is not a phenomenon which in the first place exists in a neutral manner, and which subsequently obtains a negative value-character by being subjected to an attitude of antipathy or aversion. On the contrary, it is part of the very nature of pain that it has a character of (prima facie) undesirability, which involves an imperativity or ‘pressure’ towards its own elimination. Pain is in itself, according to its own nature, and all other things being equal, disagreeable (hereby it is of course not denied that pain may assume an agreeable quality by being associated with pleasure, but in that case the pain is not considered in a pure form or in isolation). Correspondingly, a positive value-character has an immediate (or prima facie) desirability, which implies a ‘pressure’ towards acquisition or preservation. Therefore the prima facie aversive nature of pain and the prima facie desirable nature of pleasure is not caused by an attitude. It is rather the cause of an attitude and consequently of a tendency to action in a certain direction. In other words: pain tends (typically) towards eliciting an attitude of aversion and corresponding actions, while pleasure tends towards eliciting an attitude of sympathy or liking which naturally leads to corresponding actions. It seems reasonable to assume that something similar applies to all kinds of value-phenomena (even to instrumental values due to their relation to primary values). To avoid misunderstanding, it should be mentioned that though valuecharacters like pain and pleasure are given as inner states of the subject, valuecharacters may also be phenomenologically objective in the sense that they appear as desirable or aversive properties of objects encountered in the lifeworld. Beauty and ugliness are examples of such phenomenologically objective valueproperties. Whether the properties in question are ontologically objective is,

4 In The Place of Value in a world of Facts (1939), which has been a source of inspiration

to the axiological considerations in this paper, Wolfgang Köhler uses the term ‘requiredness’ as a name of the phenomenon which I call value-pressure.


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however, another question, which would in my opinion have to be answered in the negative. Given the correctness of the view that value-characters possess an inherent imperativity or that they exert ‘pressure’ in a certain direction we may introduce a notion of selfish, practical rationality, or rational administration of value with regard to the ownsphere – i.e. with regard to the lifeworld as experienced from one’s own point of view. It is prima facie rational to procure positive value and to eliminate negative value. The nature of, say, intense pain is such that it provides the victim with a prima facie good reason to avoid it or get rid of it, whereas the nature of intense pleasure is such that it represents a prima facie good reason to preserve it or to get hold of it. Here we are talking about ‘practical rationality’ only in a momentary or synchronic perspective. But rational administration of value also takes the time factor into account. A basic principle of practical rationality is that present and future value-characters should be regarded as being of equal importance, provided that there are no other relevant differences. According to this principle the pain that I experience today and the pain that I am going to experience tomorrow are – all other things equal – on a par. And furthermore: due to differences in degree, future value-characters may outweigh present value-characters. Therefore it may be rational to accept a certain amount of momentary negative value in order to avoid a larger amount of negative value or perhaps to achieve a large amount of positive value in the future. The possibility of comparisons of value – e.g. positive and negative – rest on the principle that degrees of value are identical with or resultant from degrees of value-pressure and can be known as such. We may for instance assume that the amount of positive value required to counterbalance a certain amount of negative value can in most cases be decided by means of an intuitive comparison of the imperativity or ‘value-pressure’ of the value-characters in question. Hereby we have established the outlines of a theory of quality of life or value-administration in a selfish perspective. According to this theory, choices which lead to a dominance of positive value (considered as such only according to degrees of positive value-pressure within the ownsphere) through time are in fact better or more rational in a selfish perspective than choices which lead to a dominance of negative value (where the degree of negativity is equivalent to the degree of negative value-pressure within the ownsphere). That a life of happiness and fulfillment is preferable to a life of pain and frustration is not just a matter of taste. The concrete experiences which constitute the content of the categories of happiness or frustration may well differ, e.g. at different times or relatively to different individuals. What is positive value for me today and tomorrow or for me and for you may be quite different things. But that does not in any way affect the validity of the ‘meta-value’ of increasing positive value and decreasing negative value. In other words: though concrete values may be relative, the validity of the supraordinate ideal of value-optimization is absolute and therefore independent of subjective and cultural contingencies. If I hate the taste of oysters, whereas

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you love it, it would contribute to value-optimization in your lifeworld (or ownsphere) to eat oysters, whereas to avoid the very same thing would contribute to value-optimization in mine. And if modern poetry exerts an irresistible attraction on you, whereas I find it boring, I have no quarrel with you. Such differences do not in any way affect the supraordinate ideal of practical, selfish rationality in the form of value-optimization (whatever that may be) within one’s own lifeworld or ownsphere. It may well be the case that some preferences are common to all or most human beings, whereas others differ – but that is irrelevant in this context. To anticipate questions of ethical – as opposed to selfish – administration of value, it is interesting to note that if value-optimization with regard to all ownspheres were accepted as a supraordinate moral ideal, it would imply a good deal of tolerance in matters of ethics. This is because the main limitation imposed on behavior would be the equal right of value-optimization of all ownspheres, whereas all specific value preferences would be regarded as prima facie acceptable. We shall, however, return to the question of moral value-administration below. To sum up: At this point we have established 3 basic points: (1) The occurrence of value characters within the own-sphere or individual lifeworld. (2) The fact that the imperativity or value-pressure of value-characters provides a good reason to avoid negative value and to procure or preserve positive value. And (3): The principle that for selfish reasons, future value-characters should be regarded as being in principle on a par with present value characters. Hereby we have – in brief outline – established a norm of selfish, rational administration of value which seems to be trans-subjectively and trans-culturally valid. What counts as positive and negative value may well be relative to different individuals and different cultural settings, but the ideal of value-optimization with regard to the own-sphere remains constant if we only take selfish interests into account. (It should, however, be recalled that such interests may well, as according to Aristotle, include social interests). In this context is should, of course, also be noted that these points concerning rational administration of value with regard to the ownsphere are consequences of the first two of the basic constituents of enlightened moral common sense – value and rationality. Thus we have arrived at an ethics in the sense of Greek antiquity, i.e. a theory of welfare for oneself or quality of life, but not at theory of unselfish or ‘other-directed’ administration of value, which is the meaning of ethics or morality in the modern sense. Such historical fluctuations in the meaning of a word do not, however, prove that the different phenomena denoted by it do not exist or are of a purely ‘historical’ nature. The nature of unselfish administration of value may well – as I will attempt to show – be something that exists in its own right and has a nature which is independent of cultural and subjective contingencies.


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III In order to pass beyond the level of selfish administration of value it is necessary to introduce the third element in the attempted reconstruction of enlightened moral common sense: empathy or empathic identification. I shall not elaborate the causal background of empathy. It should only be noted that in the present context the term empathy is used as a name of the mode of access, which an individual field of experience has to other such fields of experience. Empathy is the mental function, which renders the lifeworlds or ownspheres of other individuals (which I propose to call the other-sphere) present to oneself. To express the same thing in a more precise, but somewhat technical manner: empathy is the function, which creates a secondary representation of the othersphere within the ownsphere. In this sense the actual occurrence and the degrees of empathy in different situations are of course empirical facts. But the notion of empathy also has a certain cognition-founding or (in the sense of Kant) transcendental significance, as it is a condition for the existence of a cognitive dimension – knowledge of others. In this connection we may talk about a transcendental minimum of empathy without which other sentient creatures could not be experienced and known as such. It is natural to assume that empathy is a necessary condition for both human sociality and morality. If not even a transcendental or knowledge-founding minimum of empathy is present (like when a lion attacks and eats another animal), moral categories like good and evil, right and wrong appear to be irrelevant. In such cases we are obviously dealing with morally neutral phenomena. But given that empathic cognition is present, the use of such categories lies near at hand. If, say, a certain sub-species (a mutation, perhaps) of lions has a complete empathic cognition of the feelings of the antelopes that they eat, it would be tempting to view their behavior as morally problematic (though they may perhaps be excused, since other conditions for morality, for instance rationality and freedom of choice, may be absent). The ethically important aspect of the empathic relation is that it transfers value-pressure from the othersphere to the ownsphere, so that value-characters in another field of experience become relevant to oneself. Thus, a high degree of empathy can make another person’s suffering intolerable to oneself – which would of course provide a strong motive to help that person. And in the similar manner, a high degree of empathy may render another person’s happiness almost or even just as desirable as one’s own, so that one is strongly motivated to act in order to make that person happy. In such cases the empathic relation creates a kind of protoethical relation to others (i.e. other people and even other sentient creatures). This relation does not amount to morality in the strict sense, since the actions that it prompts cannot be clearly distinguished from selfish value-administration. It may be just as disagreeable to ignore empathically introduced value-experiences of others as to ignore value-characters that strictly belong to oneself. It can also be mentioned that in many cases protoethical reactions tend to be quite capricious, as they depend on momentary power-relations between value-characters originating in the own-sphere and empathically repre-

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sented othersphere-values. Such protoethical reactions can, however, be viewed as a kind of preliminaries to morality. It can also be mentioned that in the sphere of close relations we find stable protoethical relations which are more similar to morality in the strict sense than simple protoethical reactions are. The nature of the relation to one’s children, spouse or close friends is usually such that one is disposed to provide comfort and care even in situations where one’s momentary level of empathy is relatively low. But still such reactions do not differ much from selfish administration of value, since even in a selfish perspective it may in many cases be the best policy to act as though a high degree of empathy is present, even if it is not. I may perhaps be momentarily inclined to ignore my crying child – but if I did so, the consequences might well turn out to be quite disagreeable to myself. In order to understand the difference between protoethics and ethics (or morality) proper, it is important to note that, as with other kinds of cognition, empathy has a certain ‘self-transcending nature’ (which should not be confused with its transcendental or knowledge-founding nature). The self-transcending nature of empathy can be explained as follows: Cognition requires a mode of access. In order for empathic cognition to reach out towards the real existence of others, i.e. towards a state of affairs which is different from the act of cognition itself, it must contain the aspect of ‘a self-transcending nature’. It must, in other words, represent the other-sphere as having an independent and definite character of its own, to which the empathic relation provides a more or less accurate approximation. Thus, in the case of empathic cognition, the other-sphere is experienced by me as existing in and for itself and as being whatever it is independently of whether I experience it or not. These observations concerning the empathic relation between the ownsphere and the othersphere may pave the way for an understanding of the nature of morality proper.

IV As mentioned above, empathy may generate an immediate impulse to benefit others – which is a phenomenon that is somewhat similar to morality, but still of a pre-moral or protoethical nature. But imagine that a person chooses help a suffering fellow-being without being explicitly prompted to do so because of the relative strength (or value pressure) of value-characters within his ownsphere, or by considerations pertaining to value-optimization within the ownsphere. In that case the person’s behavior falls under the heading of ethics or morality proper, as it is, in a clear sense, unselfish. To express this in a more precise manner, it is my contention that in the case of a strictly moral action two conditions are fulfilled: (1) the independent existence and nature of the othersphere is recognized, i.e. it is recognized as being what it is in and for itself, in its own perspective; and (2) its immanent valuecharacters are treated as exerting a demand of recognition and if necessary help and care from oneself, no matter whether the empathic relation introduces such a


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degree of value-pressure that for selfish reasons it would be the best policy not to ignore it. In other words: The essence of morality in the strict sense consists in one’s recognition of the value-perception of the othersphere as being relevant to one’s own actions, even if no pronounced empathic bond is present. The possible relevance of this motive is introduced by the very cognition of other sentient creatures combined with the idea of rational administration of value already introduced with regard to the ownsphere. Hereby we arrive at the idea of a possible other-directed, rational administration of value. This idea represents a norm (e.g. in the sense that it is possible to conform to it or deviate from it through one’s actions), which is equivalent to an elementary notion of a moral demand. In order to understand this, it should be noted that the transcendental minimum of empathy always introduces some degree of motivating force into the ownsphere. Considered in a pure form, or on its own terms, the aforementioned norm ‘demands’ (i.e. exerts imperativity towards) conformity with it. Morality motivates – otherwise it would not be relevant to our actions. But since other motivating factors may also be present, ‘the moral motive’ (i.e. the idea of a possible rational administration of value with regard to the othersphere) may not be dominant within the total field of value-experiences. But it can be made dominant by means of a free choice. It is the execution of this free choice which is the mark of morality proper. The following example may serve to illustrate the difference between advanced protoethics and morality proper: If my child is in distress, and I do not do my best the help her, my administration of value is probably deficient even on selfish premises. If, however, I find a stranger lying on the street with a broken leg, and my level of empathy is relatively low, it may well be the case that I could, without any serious selfish repercussions, choose to just ignore him – but I could, of course, also choose to help him (for instance by calling an ambulance). In this case my reaction would be a question of ethics or morality. According to the views presented above, a certain freedom of choice of one’s own moral level is an essential part of the nature of morality. I may choose to ignore the suffering of my fellow-beings, or even, if I am so disposed, to increase it. But the norm which determines the moral level of one’s actions – i.e. the norm of other-directed, rational administration of value – is constant, since it follows from the very cognition of the othersphere as another ownsphere with the same immanent claim to rational administration of value as oneself. In that sense the norm of other-directed, rational administration of value is absolute. It is, so to speak, the measure of good and evil, since it is what so the so-called good people freely conform to and what the so-called bad or evil people freely deviate from. Hereby the capricious character of protoethics is overcome, since a nonrelative norm has been introduced according to which others are regarded as existing in their own right and as having the same claim to rational administration of value as oneself. Whether or not I have a high degree of empathy with a

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person is regarded as fortuitous and consequently without any bearing on the moral issue in question. I may, of course, choose to act in a morally reprehensible manner – but that is s due to the freedom, which is essential to morality proper, and not to fluctuations in the nature of the basic moral norm. The possibility of a choice between good and evil does not in any way contradict the validity of an absolute moral norm, which may serve as a basis of evaluation of decisions, actions and (by implication) moral character. In this connection it is also important to note that the norm of other-directed, rational administration of value should not be regarded as a product of a particular cultural or historical setting. It is rather a well-defined and universal motive constituted by a definite and invariable combination of transcultural conditions such as value, simple practical reason, empathy and freedom of choice in certain situations – i.e. conditions which are both knowledge-founding and necessary to the very existence of culture and sociality at a human level. Though the importance attributed to The Moral Motive may vary enormously due to both individual and cultural contingencies, it is always present as a factor of potential importance to beings at a human cognitive level. In the case of such morally qualified subjects the norm of other-directed care is what it is and would always prevail if no conflicting motives were present. Morality in the strict and transcultural sense can therefore be understood as a rationally mediated extension of the kind of other-directed care resulting from the protoethical relation. According to the metaetical theory which has been outlined above, the essential characteristic of morality proper is the attempted rational administration of value with regard to others in cases where they are unable to carry out such administration themselves, and where the actual degree of emphatic identification plays no decisive role (though the transcendental minimum of empathy must of course be present).

V There are different levels of ethics or morality. Not only does the empathic relation combined with rationality open up the recognition of concretely encountered others as existing in their own right, i.e. as being present to themselves even in respects to which I have no immediate empathic access; it also opens up the recognition of an indefinite number of unknown others whose welfare may to some degree be affected by my actions. Therefore we may distinguish between two different layers or levels of morality: We may use the term life-world ethics about morality concerning individuals encountered in one’s immediate surroundings, and the term system-world ethics about morality concerning an indefinite number of individuals outside the perceptually given lifeworld – for instance in a national or global perspective. The move towards an acceptance of moral obligations at the level of system-world ethics can be understood as a consequence of the choice to be a moral agent combined with a principle of consistency which has already been adopted when passing from protoetics to morality proper. In so far as one’s actions can be


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known to affect the welfare of others, it is from a rational point of view, unimportant whether the affected individuals are encountered within one’s life-world or not. Life-world ethics is not hereby replaced by system-world ethics. To most people the primary scene of moral action is their lifeworld – and under normal circumstances other-directed actions cannot be directly related to welfareoptimization in general. It does, however, seem reasonable to assume that there is certain harmony or correspondence between life-world ethics and systemworld ethics. Widespread ethical practice at the local level is obviously one of the most effective ways to secure welfare in general. But still, there may be conflicts between the two layers in morality proper – just like there may be conflicts between selfish administration of value and moral administration of value. Rational consideration of such conflicts must take a number of factors into account – e.g. the relative severity of the issues in question, the degree of influence that an individual agent can have on the system-world, and the number of individuals whose interests are concerned. The following illustration shows some different levels of administration of value, starting in the center with the (to most people) most pertinent level – selfish value-administration, or administration of the quality of one’s own life: system-world ethics life-world ethics protoethics concerning close relations

simple proto-ethics

selfish value-administration (quality of life)

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VI To return to the question of the basis of universal human rights, it seems obvious that in so far as such rights can be related to the theory of ethics presented above, they must be localized at the level of system-world ethics. In the following I shall briefly outline a defense of the view that fundamental human rights can in fact deduced from The Theory of Empathy (as we may call the metaethical theory outlined above). All the rights mentioned in the UN-Declaration of Human rights seem to be specifications or direct or indirect consequences of 3 fundamental types: rights of welfare, rights of freedom and rights of equality. Since it seems reasonable to assume that rights of welfare are the most fundamental, I will comment on that type first: Central rights of welfare are the right not to be subjected to avoidable and unnecessary suffering,5 the right to safety and the right to satisfaction of basic needs of sustenance.6 Obviously such rights can be viewed as consequences of the norm of other-directed, rational administration of value – i.e. they follow directly on The Theory of Empathy presented above. A right to happiness is not mentioned in this connection, since the nature and pursuit of happiness are issues, which are in most cases best left to the individual and cannot be subject to universal legislation. However, since happiness is the positive aspect of welfare and is in fact pursued by everybody, avoidable deprivation of the conditions of happiness is obviously a violation of a universal human right. And since the most important means to achieve happiness is the free or autonomous administration of value on the part of the individual, the right to autonomous value-administration is a fundamental right of freedom (i.e. apart from the fact that freedom may in itself be part of happiness). On the basis of this general right it is possible to formulate a number of particular rights of freedom relatively to different circumstances, so that we may speak of such rights in the plural. Quite a large number of the rights mentioned in the UN-Declaration of Human rights are mainly rights of freedom – for instance freedom from slavery, freedom of speech, freedom of thought and religion, freedom of movement and residence etc. etc.7 Rights of freedom are closely related or even instrumental to rights of welfare, but since this group of rights has some distinct features, we may still wish to talk of rights of freedom as a particular kind of human rights. The first two types of right – rights of welfare and rights of freedom – are immediate and obvious consequences the metaethical theory outlined above. The third type of rights – rights of equality – needs some further clarification. Rights of equality exclude various kinds of discrimination – for instance discrimination due to race, sex, color, language, religion, political persuasion, 5 Cf. Universal Declaration of Human Rights, Article 5 et al. 6 Cf. ibid. Article 25. 7 Cf. ibid. Article 13, Article 18-19 et al.


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national origin, birth and social position etc.8 In order to understand the underlying idea of a fundamental equality between human beings (and perhaps even in some respects between human beings and animals), it should be recalled that the transcending nature of empathic cognition reveals the othersphere as being in a certain basic respect equal to the ownsphere. The othersphere cannot be understood otherwise than as another ownsphere, which, on its own terms or for itself, is just as important as one’s own phenomenal universe or ownsphere. Seen in its own first-person perspective an othersphere is a total phenomenal universe, which contains all experiences, including all value-experiences, of an individual subject. Therefore we may talk of a monadological distribution of value – i.e. a distribution of value upon innumerable individual ownspheres, which relatively to one another appear as otherspheres. In so far as this fact is recognized by means of empathic cognition it leads on to the intuition of others as existing in their own right and as having the same initial claim to rational administration of value as oneself. This observation provides a kind of metaphysical foundation of the idea of an original equality between individuals and corresponding rights of equality.

VII On the assumption that these views provide a plausible explanation of the nature of the basic categories of human rights, it seems obvious that the metaethical theory outlined above may function as a secular and rational foundation the UNDeclaration. All the rights mentioned in the Universal Declaration of Human Rights can be understood as consequences or specifications adapted to particular circumstances of the basic rights of welfare, freedom and equality – which on their part can be founded on the metaethical Theory of Empathy. Though important questions (e.g. concerning conflicts, priority and specification of particular human rights) remain unanswered, it is my contention that the question of the very existence of universal human rights can be answered in the positive. This is due to the fact that the 3 factors (value, rationality and empathy) on which The Theory of Empathy is founded are universal conditions of human sociality and of all kinds of rational administration of value with regard to others. It is of course quite possible to deviate from the norm of rational administration of value both with regard to oneself and others. But the nature of this norm is not in itself subject to cultural or historical fluctuations. This is a fact which tends to confer a universal validity upon the most general categories of human rights, i.e. rights of welfare, freedom and equality. These general categories may then serve as a basis of the formulation of particular rights like the ones mentioned in the Universal Declaration of Human Rights. The specification of particular rights depends on cultural (and perhaps also to some extent natural) contingencies such as the existence of ‘institutions’ like religion, marriage, the family as a fundamental unit in society, private property, the national State, legislation etc. Combined with the general categories of 8 Cf. ibid. Article 2 et al.


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rights, such contingencies give rise to the formulation of specific rights that primarily concern the relations between the individual and the institutions in question.9 But that does not in itself rule out the possibility of a general ethical founation of what we may call The discourse of human rights. In this lecture I have attempted to outline the possible nature of such a foundation.

References Klawonn, Erich, Udkast til en teori om moralens grundlag, Odense University Press, 1996. Köhler, Wolfgang, The Place of Value in a world of Facts, 1939. United Nations 1948, Universal Declaration of Human Rights.

9 Directly or indirectly this applies to most of the Articles in the Universal Declaration of

Human Rights – with possible exception of Articles 1, 3, 4 and 5.

Human Rights, Moral Objectivity, and Tolerance of Religion LARS BINDERUP The principle of tolerance is one of the cornerstones of a democratic, liberal state and it is the central theme in the Universal Declaration of Human Rights. It is the principle that the state ought to be tolerant with respect to the beliefs, the expression of beliefs and generally the practices of all citizens with only one limitation – namely that the granting of such rights to one citizen must be compatible with granting similar rights to all other citizens. It is the idea that one ought to be free to do and think and say whatever one likes as long as one does not interfere with the similar liberties of other people. The following discussion of the liberal principle of toleration is initially focused on the debate over the justification for such a principle. More precisely, I am going to address what may seem to be a paradox for a defender of such a principle. On the one hand, someone who is genuinely convinced that this principle ought to be accepted is advancing a moral claim that implicitly aspires to objectivity. In other words: someone advancing the principle of toleration in moral debate is typically not just seeing himself as reporting his private conviction. He also implicitly claims that this belief is rationally and objectively justifiable. On the other, the very principle of tolerance allows that someone publicly rejects the principle of tolerance. So, the defender of the principle of tolerance is advocating tolerance of the expression of points of views that he regards as objectively wrong. The worry is then: Does not the acceptance of a principle of tolerance somehow signal a loss of genuine moral conviction on the part of a defender of the principle? Does not tolerance ultimately undermine moral belief? My ambition will be to show that this is not a worry at all. The only hope for a metaethical justification of the aspiration to objectivity and rationality of our moral beliefs is that these beliefs can survive reasoned normative reflection and discussion. And the very ability to engage in such a reasoned debate depends on an ability to tolerate people with views with which one disagrees. The kind of normative debate that is a necessary condition for the rational justifiability of moral beliefs can, thus, only take place in a society in which citizens enjoy freedom of expression and conscience. The answer to the alleged paradox of tolerance, further, gives the liberal the means to distinguish between mere tolerance and what I shall call intellectual respect. This distinction will then be used in the second major discussion of the paper: The question of how a liberal ought to think about tolerance of religious beliefs and practices. The paper falls in roughly three parts: First, I have a closer look at the principles of state neutrality and liberal tolerance. I then turn to the metaethical debate over the objectivity of moral (including political) beliefs – to resolve the para-

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dox and develop the notion of intellectual respect. Finally, I apply my findings to the specific issue of liberal tolerance of religion. This will take me into issues of the philosophy of religion and I shall briefly make the point that the very pluralism and freedom of thought that characterise democratic societies tend to undermine not just the actual degree of religious belief in the society, but also the very rationality of religious belief.

Human rights and the liberal state I shall start with a few introductory comments about the political morality of the Universal Declaration of Human Rights. It is evident that the declaration expresses what is historically a Western liberal ideal of the state – with its egalitarianism, individualism and advocacy of tolerance and state neutrality. It is egalitarian in the sense that it applies all citizens of the state – i.e. universally, in one sense of that word. It is individualistic in that it distributes these rights at the level of individuals, not groups. Finally, it advocates state neutrality in the sense that citizens ought to be protected from certain kinds of interference from the state into the way they live their lives. The state is required to be neutral in the sense that it does not promote or defend a particular conception of the good life. The state is therefore not allowed to discriminate between citizens based on their moral, religious or prudential beliefs. Rather, it is required to allow a plurality of conceptions of the good life to develop and flourish.1 In my brief discussion here I shall focus on the liberal ideal of a neutral state. This ideal may be taken to involve two requirements: First of all, the state is supposed to allow its citizens to choose (autonomously) for themselves a conception of the good. And it is to protect its citizens as they live different lives in accordance with their chosen values. Thus, it must set up the conditions under which people with different such conceptions can co-exist peacefully. But, secondly – and no doubt more controversially – the state is arguably implicitly required to give its citizens the possibility of taking part in the kind of rational normative debate that is the precondition for autonomous choice. In other words, according to the liberal ideal of the state, the state must set up the conditions under which rationally competent individuals who are aware of different possible conceptions of the good and the right can engage in free reasoned debate and draw their own conclusions without fear of sanctions or reprisals. (This is arguably also implicit in the Human Rights Declaration in virtue of the right to an education and the rights to civil liberties like those of freedom of speech and the press, artistic freedom and freedom of religion). This latter requirement – that the state ought to enable and promote public debate about, among other things, values and morals – comes in different strengths. The one implicit in the Universal Declaration is quite weak. It is 1 According to the way I am using the word ‘liberal’ here, all liberals are advocates of a

neutral state and thus antiperfectionists. This is, of course, a stipulation, since there are arguably liberal philosophers – for instance Joseph Raz in Morality of Freedom, (Oxford University Press 1986) – that defend liberal ideals while not being advocates of state neutrality.

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merely the minimal negative requirement that the state ought not to interfere with the free flow of information and debate where these phenomena occur spontaneously. But, let me here just add that a liberal minded person – without abandoning his liberal ideals – might very well argue that the state ought to play a more active role in setting up a public normative debate. Thus, one might further require that the state actively ensures that a high level of education and information is freely available and that a critical normative debate actually takes place. This is, for instance, suggested by Habermas when he argues that the state ought to ensure that a critical debate about values takes place in order to emancipate citizens from the repressive elements often implicit in traditional value systems. A similar way to strengthen this second requirement is to argue that the state ought to make sure – through economical support for various institutions and activities – that a variety of living and sophisticated cultural and intellectual manifestations is preserved in society so that individuals have real alternatives to be inspired from and choose between. This can be combined with state neutrality, if only the state supports – without discrimination – all the different kinds of cultural and intellectual manifestations already present in society (i.e. not state generated and controlled).2 Or at least all those manifestations that are not in direct conflict with the morality inherent in the liberal ideals of the human rights declaration itself. In short, the liberal who defends the idea of a neutral state need not be ignorant of the fact that human beings are ‘social animals’ in need of socialisation in order to become rational, moral beings. He need not be an asocial individualist. The liberal can recognise that an individual needs to be introduced to and inspired by the surrounding culture in order to become a moral individual in the first place. And he can do this without giving up the ideal of autonomy that defines him as a liberal. What he must add is merely that individuals ought also to acquire the skills needed to assess and criticise the set of values that have been handed down to him – that the individual needs to be able to engage in both private reflection and collective normative debate in order to be able to form normative beliefs and make considered normative choices in a rational and autonomous way. These latter remarks implicitly answer much recent (misguided) criticism of the ideal of the neutral state – in particular, certain kinds of communitarian criticism. Communitarianism is defined by the belief that the state ought to encourage – and perhaps even enforce – a certain way of life through protecting and supporting a particular conception of the good life. Often the idea is that a local and traditional, perhaps religion-based, conception of the good life ought to be protected and promoted. Communitarians – most prominently Alasdair MacIntyre, Michael Sandel, Charles Taylor and Michael Walzer – offer many different

2 This idea of a neutral, but culturally proactive, state is for instance defended by Ronald

Dworkin in his A Matter of Principle, (Harvard University Press 1985).

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arguments against a neutral state,3 but most of the time, it seems to me, they are simply assuming that the liberal has to be working with a conception of the self as radically un-encumbered by a common culture and in no need of normative debate with other rational individuals. And clearly – as I have briefly argued above – the liberal needs to make no such false assumptions. Let me not go any further into the debate between liberals and communitarians here, but instead look closer at and answer two possible criticisms of the idea of a neutral state that might very well have been advanced by a communitarian.

Defending the idea of a neutral state The first type of criticism of the ideal of a neutral state makes the assumption that the liberal defends the neutrality of the state by advocating some form of general and radical moral relativism or even nihilism. Thus the assumption of the critic is that the liberal argues that, since, generally, there are no objectively right or wrong ways to behave morally or prudentially, the state is never justified if it promotes one conception of the good and the right over all others. If this were the best liberal defence of the neutral state, it would certainly be right to criticise it. But, the liberal ought not and need not to take refuge in a form of moral relativism or nihilism in this way. First of all, a general moral relativism or nihilism cannot be part of a defence of the neutral state in the first place. If, generally, there is no objective right or wrong, then there can be nothing objectively wrong with state-interference in the lives of the citizens either. In other words, the liberal ought not to take refuge in moral relativism or nihilism, because presumably he would want to defend his own conception of a just state – the very conception of justice inherent in the Universal Declaration – as objectively correct. Relativism and nihilism undermine all claims to objectivity; including the liberal’s own claims about a just state. Of course, someone might argue that the liberal could be an objectivist about justice – the kinds of procedural principles of justice concerning how we must act towards other people in society that we find in the Universal Declaration – yet a relativist about conceptions of the good life. However, a second point I want to make here is that the defender of the neutral state need not even be such a relativist or nihilist about conceptions of the good life either. The liberal as I will understand him in the following defends the neutrality of the state even while advocating a form of objectivism about conceptions of the good life. How is this possible? Several answers are available to the liberal. For one thing there might be practical and pragmatic objections to a non-neutral state even in the light of objectivism about conceptions of the good life. Perhaps the risk is too great that the state will try to promote an objectively false conception of the good life. Or perhaps a non-neutral state is likely to give too much power to the government – power that may corrupt. Or perhaps the state with its ten3 For an excellent survey of and critical introduction to the debate between liberals and

communitarians, see Mulhall, S. og Swift, A.: Liberals and Communitarians, 2nd ed. (Blackwell 1996).


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dency to become bureaucratic and impersonal is just no good at spreading conceptions of the good life among its citizens. The answer I find most compelling, however, goes via an appeal to the fact that human beings, in order to live good lives, must identify with the conception of the good life that they live in accordance with. It is simply not possible to impose the good life on individuals from the outside, so to speak. An individual may be forced by others or by the state to live according to a certain – and even an objectively correct – conception of the good life. But, it doesn’t become a good life until the individual genuinely accepts that this is the best way to live.4 One can perhaps further argue that the reason for this feature of human beings – i.e. the fact that the good life can only be lived from within – is that because human beings are potentially rational individuals and as such are capable of choosing and acting for reasons, they can only live a successful and valuable life if they are respected as rational individuals by others and are able to justify their lifestyle to themselves. Human beings are – according to this thoroughly liberal way of thinking5 – such that autonomy is a precondition for living a truly valuable life. Of course, this point – that the advocacy of state neutrality is consistent with the acceptance of moral and prudential objectivity – bears on the theme of tolerance that I shall discuss later. What it shows is that moral objectivists can consistently be tolerant of people with what they take to be objectively false moral and prudential beliefs – namely if the objectivists realise that the only way to get those with the false beliefs back on the right path is by convincing them through rational argument, not through the use of any kind of coercion. In other words, moral objectivism does not necessarily entail paternalism or authoritarianism. And conversely, as we saw before, moral nihilism or relativism does not necessarily entail tolerance of difference. Because if there is no objective moral right and wrong, then there is also no objective moral reason not to persecute people that one dislikes for some reason or other. The second criticism of the liberal idea of a neutral state will take us further towards the issue of moral objectivity. This criticism takes as its starting point what I noted earlier, namely that the kind of political morality displayed in the Universal Declaration of Human Rights is roughly the Western ideal of a neutral state that originated in Christian, individualistic, industrialised, marketeconomical societies. The critic, then, simply observes that the moral point of view of the Declaration is just the parochial political morality of such societies and, consequently, that the attempt to spread the acceptance of human rights outside the parish is just another example of unjustified Western imperialism. In 4 For further discussion of the idea that the good life must be ‘lived from within’, see Will

Kymlicka’s discussion of communitarianism in Contemporary Political Philosophy – An Introduction (Oxford University Press, 1990), p. 203-4. 5 Again, some liberals are not thoroughly liberal in the way presupposed here. Raz in Morality of Freedom, (Oxford University Press 1986), for instance, claims that autonomy is not valuable for human beings as such (as I hold in the above), but only for human beings living is a liberal culture with valuable institutions that presuppose autonomously choosing individuals.

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particular, the critic might argue, the Declaration reflects a certain Western overemphasis on individual freedom that is foreign to many other cultures. As it stands, this is of course a very bad argument. The fact that a principle originated in a particular place at a particular time in particular circumstances has no bearing whatsoever on its truth or justifiability, just as the fact that a mathematical theorem originated in a particular place at a particular time in particular circumstances has no bearing on its truth or provability. (Also, as we saw earlier, it is not clear that the liberal defender of the neutral state needs to claim that autonomy is valuable for its own sake. It may be just a precondition for living the good life – of enjoying other things that are valuable – since the good life has to be lived from within). But what this charge highlights is the need for some kind of objectivist defence of the theory of human rights. In other words, the liberal needs to show that he can justify the claim that this moral theory is universally valid. That is, universal in a different sense from the one mentioned earlier, namely not only universal in the sense of applicable to all human being, but also universal in the sense of justifiable to all (rational) human beings. Thus, we turn to the complex discussion of a metaethical question: How might one supply a rational and objective foundation to the political morality of the Universal Declaration of Human Rights?

The objectivity of moral beliefs First of all, it should be made clear that the Declaration is not to be seen as supplying such a rational, metaethical foundation for itself. The Declaration is best seen as a set of first-order normative principles governing the actions of the state towards its citizens. The talk of the rationality, dignity and birth-rights of human beings is best understood as first-order moral claims – claims that we ought to treat humans as rational and dignified by granting them a particular set of rights.6 As such, the Declaration is neutral with respect to the foundations of the moral principles it contains. And that is not a flaw, because it is a statement of moral principles, not a metaethical account of moral discourse.7 6 There is a common misunderstanding in the debate that somehow talk about rights is

meant to be metaphysical rather than just normative. The idea seems to be that rights are a certain kind of objective entities – like chairs and stars – that make our moral claims true. This misunderstanding of the rights-terminology, of course, makes it an easy target for critics. However, talk about individual rights is just a metaphysically innocent manner of speech. Thus, it can easily be paraphrased into talk about what others must unconditionally respect – where the latter involves no seeming reference to rights-entities. 7 The closest the Declaration comes to giving some form of meta-justification of its own principles is in the preamble, where there is an appeal to the self-interest of everybody, including the rulers – namely an appeal to the selfish interest in peace and stability. Thus, it is argued that if the rulers do not respect human rights then ‘the subjects will be forced to rebel against tyranny and oppression’ and also it is argued that respect for human rights would help to create peaceful relations between nations. But, of course, what we are looking for here is a foundation for the human right principles as moral, and not prudential, principles.


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So, how might one plausibly give an objectivist account of moral discourse? I shall first have a very brief look at what I take to be unsuccessful attempts – more precisely religious and moral realist attempts – to supply such an account. The first question, then, is: Could our morality be rationally based on the commands of a divine lawgiver – i.e. could it be, that the set of Human Rights is really given by Divine Law? Any attempt of this kind faces a famous and decisive objection that dates all the way back to Plato in the Euthyphro dialogue. Here Plato poses the following dilemma to someone advancing a form of Divine Law justification of ethics: Are pious acts pious because the Gods love them? Or do the Gods love them because they are pious? If one chooses the first horn of the dilemma, one faces the absurd consequence that, for instance, cruelty would have been all right, if only the Gods had decreed differently. It is absurd, because it seems that if it is wrong to be cruel, then it is wrong no matter what the Gods might have thought about it. The other horn of the dilemma, however, is really a departure from the Divine Law theory. If the Gods love pious acts because they are pious, then clearly there must be another reason for their piety than the fact that the Gods love them. So, then we are left to find a foundation of ethics in something different than the decree of the Gods. Since I shall later say more about religion and rationality, I shall leave the issue of religious foundations for ethics here. There are also secular attempts at giving a robustly objective foundation of moral theories – that is, attempts by moral realists to defend the idea that there is a radically mind-independent realm of moral fact ‘out there’ that makes our moral beliefs true or false. Plato famously gave his own realist version of an objectivist defence of morality with his theory of forms. But, realists also face a dilemma. Either they claim that moral facts are sui generis – an independent domain of facts not reducible to facts of any other kind. But, then they meet a range of familiar objections to do with the queerness of such sui generis facts – including their un-explained dependence/supervenience on natural facts – and the implausibility of the kind of intuitionistic epistemology that they seem to require. Alternatively, the realist might claim that moral facts are reducible to natural empirical robust facts. But, then he meets the still valid objection that he will end up in trouble with the Open Question Argument.8 But, if the hope for a – religious, Platonic or naturalistic – external sanction for moral discourse is lost, is there any hope for moral objectivism? Many different theories in recent meta-ethical debate answer this question positively. Let 8 As pointed out to me in discussion, in this quick sketch of varieties of more realism, I

have left out the more recent form of moral naturalism – so-called New Wave Moral Realism or Cornell realism – which avoids the Open Question Argument through rejecting the reducibility claims of classical analytical naturalism and instead asserts synthetic identities between moral and natural properties. However, I take these new variants of naturalism to have been shown to be inevitably relativistic (and therefore problematic) by the so-called Twin-Earth-arguments of Terrence Horgan and Mark Timmons in their ‘Troubles for New Wave Moral Semantics: The 'Open Question Argument' Revived’, Philosophical Papers (1992), vol. 21, 153-75.

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me briefly hint at how such an antirealist defence of moral truth and objectivity might look. The starting point for such a theory is often the recognition that moral beliefs at bottom are practical/motivational or even affective/emotional states of mind. This observation is combined with the observation that moral reasoning is possible in that we can attempt to make our sets of moral belief consistent. Thus, we can as a matter of fact reason morally in the sense that we can seek to achieve what Rawls has famously called a reflective equilibrium in our system of moral beliefs. More precisely, we can formulate general moral principles that justify what we take to be firm moral verdicts about particular situations. Then we can apply these general moral principles in order to justify or sometimes revise moral verdicts about other particular situations. But also, we can revise our moral principles when they conflict with a sufficient amount of firm moral verdicts about other particular situations. There is such a thing as sophisticated and rational moral debate – as exemplified by normative ethics and political philosophy, but also by everyday debates about ethical and political problems among laymen. A highly relevant example of this type of moral reasoning is the story of the formulation of the Universal Declaration in 1948. As can be seen from the preamble to this document, it seems that the actual starting point for the process of formulating the principles of the Declaration were in fact the unanimous condemnation of the particular barbarous acts of the Nazi reign of terror. Thus, this is exactly a case where definite and clear moral verdicts about particular situations form the basis of the formulation of general moral principles – the principles of the Declaration themselves – that can then be applied to new situations. The fact that we can subject our system of moral beliefs to such a process of reflection and criticism gives us the right to speak of the possibility of the improvement of our set of moral beliefs – of its becoming more comprehensive and consistent. The idea of such improvements further will allow us to define a notion of moral truth – namely via the idea of the set of beliefs that will survive such a process when it is carried to an ideal limit. Thus, we can arrive at a notion of justification for moral beliefs and on this we can build a notion of (antirealist) moral truth. Hence, it will make sense to speak of a kind of moral objectivity. Not quite the robust realism discarded earlier, but arguably the best we can do with respect to ethical discourse. Of course, the process of improving one’s set of moral beliefs need not be a solitary activity. Rather, it is natural to seek inspiration by and agreement with others who are engaged in the same kind of process by taking part in reasoned debate. Thus, we can follow Alan Gibbard in speaking of trying to achieve a dialectical equilibrium through normative debate in addition to a personal reflective equilibrium. And we may say that a set of moral beliefs is defeasibly justified when it has survived such a process of private criticism and public debate. Applied to the discussion of this paper, we shall then say that the moral principles of the Human Rights Declaration are justified to the extent that they can survive such processes. But, now an obvious objection looms large. Mere


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consistency of sets of beliefs cannot guarantee uniqueness in that incompatible sets may be equally consistent. Therefore: Can this account of moral objectivity avoid a charge of relativism? This is of course an echo of the before mentioned objection that the human rights principles are just a formulation of the parochial morality of Western societies. Perhaps the human rights principles are just the outcome of – the current equilibrium achieved in – Western normative debate and reflection and perhaps alternative moralities develop elsewhere with equal claim to be the objectively true morality. The answer to this question is that there is both a sense in which this account is relativistic and a sense in which it is absolutist. The sense in which relativism must be conceded follows from the observation that for any individual a reflective and dialectical process must take as its starting point the sets of moral norms that are passed on to the individual from the surrounding culture. Consequently, the set of moral beliefs that an individual ends up with after having undergone the dialectical and reflective process is likely still to reflect this parochial starting point. Thus, we have no a priori guarantee that normative debate will tend towards a consensus – especially when we consider normative debate across very different cultures. Hence, the kind of metaethical theory that is envisaged here seems unable to exclude apriori that moral disagreement is going to be pervasive and un-eliminable. In this sense, the justification of belief in the rationality and objectivity of moral belief is defeasible. On the other hand, I believe that the empirical evidence speaks against such scepticism. When people, even from very different cultural backgrounds, actually and sincerely engage in free, rational, normative discussion – in fact the kind of discussion made possible in a society when the state respects and protects human rights – there is a clear tendency towards convergence in opinion. Certainly there is no reason so far to conclude that such a normative discussion cannot in the end command convergence. Therefore, it makes sense to argue as if there is a single moral truth and it makes sense to persevere when one encounters stubborn disagreement. And in this sense, normative discourse must remain absolutist and not relativist. (Arguably, the current trend towards globalisation and increased contact across cultures makes this optimism with respect to the possibility of achieving consensus much more needed and much more probable than ever before). After this very short account of what may be called an antirealist defence of moral objectivity and truth, it is now time to turn to the theme of tolerance.9

9 The kind of moral antirealism sketched here is developed among others by Simon

Blackburn (e.g. in his Ruling Passions, (Oxford University Press 1998) and Crispin Wright (e.g. in ‘Truth in Ethics’, Ratio (New Series), vol.8, December 1995, 209-26).

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Tolerance and normative respect What is the liberal – who attempts to defend the objectivity of the liberal political morality in the antirealist way just proposed – to say about tolerance of religious belief? In one sense, of course, he can say little more than what has now become almost mere common sense. That is, there is almost universal agreement that a state ought to tolerate activities and beliefs (including their expression) of citizens in so far as they do not harm other citizens – to echo Mill’s famous Harm Principle – or that a state ought to grant ‘all persons equal right to the most extensive basic liberty compatible with a similar liberty for others’ – to echo Rawls’ equally famous Liberty Principle.10 This is, of course, to grant very extensive rights to free speech and free practice of religion. This brings us back to the apparent paradox for the liberal conception of tolerance that these kinds freedom also apply to members of society that speak against these very kinds of freedom. But, the above considerations about the rationality and objectivity of moral belief give us the means to justify this high degree of tolerance. First of all, we ought to engage even those with anti-liberal views in normative debate, since – as we saw – we can only ultimately defend our own moral beliefs as rational to the extent that we have exposed our view to all possible kinds of criticism and opposition and have shown that they can survive this exposure – in other words, if we have attempted to achieve the widest possible reflective and dialectical equilibrium. Secondly, and again echoing what has been pointed out above, the right way to oppose those who we believe have (objectively) wrong moral beliefs is by convincing them that they are wrong in normative debate – not by forcing the right views on them from without. But, the above considerations also show that we may want to draw a finer distinction here between different attitudes we may have towards the moral views that we engage with in normative debate – namely between those views that we merely tolerate (let us call this political respect) and those views that we come to intellectually respect. We may say that we can intellectually respect a set of moral beliefs – even if we are in disagreement with it – when we can see it as the outcome of an extensive process of reflection and dialogue. And we can be said to intellectually respect the persons we are in disagreement with when we can see them as genuinely interested in rationally articulating their beliefs and in engaging in reasoned debate with us with a willingness to learn from us, as we are willing to learn from them. The question I want to address in the final sections of this paper is: To what extent can religiously justified moral beliefs become the object not only of mere tolerance but also of genuine intellectual respect? However, before turning to this task, I shall compare and contrast the distinction just drawn – between intellectual respect and mere tolerance – with the

10 Rawls: A Theory of Justice, (Oxford University Press 1972), p. 60.


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famous views of the later John Rawls.11 There are important similarities, but also a crucial difference that relates precisely to the issue of religious tolerance. Rawls accepts that there may be a plurality of reasonable, but mutually inconsistent, moral and political views. Thus he claims that ‘the burdens of judgement’ – various features of moral and political debate like the high complexity of evidence, vagueness in our moral concepts, the possibility of according different weight to different bits of evidence, the differences in personal moral experience, the incommensurability of types of considerations on the different sides of a moral problem12 – put us in a situation where moral reasoning does not mandate one and only one set of moral doctrines. Rather, moral reasoning under the burdens of judgement leads to ‘a reasonable pluralism’ (at least under the circumstances of a modern democracy). This is all congenial to the idea canvassed above that we must intellectually respect people with views that contradict our own, if we see these as the outcome of serious moral reflection and discussion, because moral reasoning has not (yet at least) achieved the degree of discipline and rigour needed to mandate a unique set of doctrines. However, Rawls proceeds to develop a political as opposed to a comprehensive version of liberalism. The political liberalist restricts his argumentation (when discussing the basic conditions for cooperation in society) in such a way that he only advances arguments that he knows can be reasonably accepted by reasonable people (i.e. people with reasonable doctrines possibly different from his own). The political liberal respects a ‘criterion of reciprocity’ and he bases his political views on ‘an overlapping consensus of reasonable doctrines’, as Rawls puts it.13 By contrast, the version of liberalism defended above is comprehensive in that it bases its arguments on the moral (as opposed to merely political in Rawls’ technical sense) value of autonomy. To use Rawls’ words, this is the idea of ‘moral autonomy expressed in a certain mode of life and reflection that critically examines our deepest ends and ideals’.14 (He refers to Mill and Kant as important representatives of such a comprehensive liberalism). The problem with this comprehensive version of liberalism according to Rawls is that it directly contradicts other reasonable views. Thus, Rawls rejects a comprehensive liberal theory because ‘many citizens of faith reject moral autonomy as part of their way of life.’15 In other words, Rawls sees religiously based moral views as part of the set of reasonable doctrines in modern society.16 A comprehensive liberal theory based on the moral value of autonomy is therefore disallowed in modern democratic debate because it contradicts another reason 11 See John Rawls: Political Liberalism (Columbia University Press 1993). The following

12 13 14 15 16

comparison with Rawls was added to the original paper as a response to helpful questions from Svend Andersen and Linda Barclay during the question-period. Rawls: Political Liberalism, pp. 54-58. Ibid., p. xlvi-xlvii. Ibid., p. xliv-xlv. Ibid., p. xlv. Thus he writes: ‘…political liberalism…supposes that of the main existing reasonable comprehensive doctrines, some are religious’, ibid., p. xx.

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able view – in particular a religious view – and thus fails to meet the requirement of reciprocity. The point I want to make in the following, however, is that pace Rawls religious world-views are not to be counted among the reasonable doctrines and, hence, that there is no obstacle to remaining a full-blooded comprehensive liberal. Religious views ought to be tolerated and politically respected by the liberal – a certain modus vivendi can come to exist between the parties, to use a Rawlsian term again – for reasons already given. They ought not, however, to enjoy the intellectual respect of the liberal. But, why claim that religious world-views and, by extension, religiously based moral views are not reasonable?

A definition of ‘religious belief’ Before giving an answer to this question, I had better give a definition of religious belief. I shall offer an admittedly incomplete and sketchy definition, but one that is arguably the one most relevant to the discussion in political philosophy and ethics. I shall say that having a religious belief involves at least two things that may be jointly sufficient. First of all, there must be a genuine metaphysical component. No set of beliefs is religious unless it involves the genuine belief in the mind-independent existence of some form of object of worship – a superior intelligence that created the universe and transcends it or that pervades all existence, for example. Secondly, a religion must have some form special religious norms and ritualistic practices – a set of norms and practices that only make sense in the context of the special metaphysical beliefs mentioned above. Here the examples are things like: irrational beliefs that certain places, persons or texts are holy and that certain clothes or days of the week are to be special, that certain ceremonies ought to be performed and that certain other practices are taboo, for instance certain kinds of food or sex. It should, of course, be added that systems of religious belief most often contain a third ingredient – namely a more general set of moral norms. And moreover, this ingredient of a religion often overlaps with its counterparts in other religions and in secular moral systems. The golden rule is an often-used example. But as such this ingredient is not a defining characteristic of a religious set of beliefs. This way of defining religious belief is probably in many ways far too narrow. But, definitions are useful relative to particular contexts of discussion. And in the context of a discussion of religion in relation to politics and morality – the role of religion in a democratic state and in moral debate – this definition of religion is arguably the most useful. This is because it is most often disagreements over the metaphysical component of a religious belief system or the simple dislike of special religious practices by people outside the religious community or the religious believer’s dislike of people that do not take part in the religious practices that cause – and become the object of – religious strife and intolerance. And it is often these components of religious belief that render difficult the achievement of a moral dialectical equilibrium between different religious communities and between such communities and secular moral communities.


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The reasonableness of religious belief If a religious person enters normative debate, he will want – at least initially – to justify the kinds of moral norms that he already adopts, including the special religious norms that I called the second necessary component of religious belief. Seeking this kind of justification is, as we saw, a necessary condition for being worthy of the intellectual respect of the other participants in the normative debate. However, these special norms do not make sense to others – cannot be seen as reasonable – unless they are supplied with a backdrop consisting of what I called the metaphysical component of religious belief, i.e. the belief in some kind of mind-independently existing object of worship. This leads me to look more closely at the possibility of giving a rational defence what I called the metaphysical component of religious belief. What are we to say about the relation of reason to faith? I shall survey three attempts at giving an account of this relationship – one irrationalist and two rationalist accounts. The irrationalist will say that it is completely misconceived to attempt to give reasons for religious belief in the first place. Belief in God has to be the outcome of a free choice and it has to be an unconditional acceptance of God. Therefore, this defender of religious belief argues, faith cannot be based on reasons.17 Now, this account of religious belief is openly irrationalist. The believer claims that p – e.g. that God exists – yet he also admits that it is irrational to believe that p. In other words, though he is not inconsistent, strictly speaking, he is pragmatically inconsistent. In fact he is caught in a so-called Moorean Paradox. What is relevant here is that this religious believer cannot enter normative debate with any claim that others ought to take his special religious normative beliefs seriously. Other participants would, implausibly, have to accept these norms for no reason whatsoever. By choosing the irrationalist ‘defence’ of religious belief, the religious person exiles himself from the sphere of the intellectually respectable and his belief becomes no more than a private idiosyncrasy. Of course, a religious believer may claim to have reason on his side – claim that religious belief can be based on reasons as it is the case with certain, but not all, religious beliefs according to Aquinas. This is the idea that we can, for instance, prove the existence of God – as it is known in classical cosmological, ontological and teleological arguments for Gods existence. Now, this is not the place to get into a detailed discussion about the soundness of proofs of Gods existence. However, it is fair to say that philosophers have long doubted to cogency of such proofs for one of two reasons: the proofs are either invalid or viciously question begging. And often they attempt to establish less than what they are supposed to establish – namely the existence of a God as described in one of the major religions. Thus, we may look away from these versions of re-

17 The argument goes: if on the one hand belief is based on conclusive reasons, then the

believer will not be able to freely choose to believe. If, on the other hand belief is not based on conclusive but merely probabilistic reasons, then it is clearly irrational given that the belief is unconditional.

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ligions rationalism in our attempt to find reasons for respecting special religious norms in normative debate. This first attempt to argue for the rationality of religious beliefs presupposed what may be called evidentialism about the rationality of beliefs, namely the thesis that a belief can only be rational if it is supported by other beliefs. However, there are those who argue that beliefs – including religious beliefs – can be rational without being supported by evidence. Thus, for instance, Alvin Plantinga claims that ‘it is entirely right, rational, reasonable and proper to believe in God without any evidence or argument at all’.18 His point is that many basic beliefs can be regarded as rational without evidence in the shape of other believed propositions. Think for instance of normal perceptual beliefs. If I have an experience as of a computer standing in front of me (i.e. a brute experience, not a believed proposition), and I have no positive reasons for doubting that the perceptual situation is normal or that my perceptual apparatus is functioning normally, then it is entirely rational and proper for me to form the belief that there is a computer in front of me. So, we may grant Plantinga that there are good examples of proper or rational basic beliefs. Plantinga, then, points out that we may also have experiences as of having a direct encounter with God. For instance, one might feel that God speaks to one when one reads the Bible or one might feel that God is angry when one feels guilty about having done something morally wrong. So, can we not, then, if we have no reason to believe that the situation is not normal, form proper basic beliefs in the existence of God? Now, this is perhaps the strongest case that can be made for the rationality of religious belief, given that evidentialist attempts have failed. However, it will not do. Or rather, it would perhaps work in certain circumstances. For instance, Plantinga imagines a 14-year old boy who has been brought up in a community of only believers and who has never been introduced to any arguments for the existence of God, nor has he been given any reason whatsoever for not believing in God’s existence. This boy could perhaps have a rational basic belief in God, given that he has the kind of direct experience as of God spoken of before. However, this is not the kind of circumstances that face people today – in particular educated modern adults who live in democratic pluralistic societies. That is, the kind of people that have 1) encountered a variety of different religious cultures and thus have no reason to interpret their experiences as of one particular Deity and 2) have been introduced to reasons for not believing in the existence of God – like for instance the problem of evil: How could a benevolent and omnipotent God allow all the kinds of evil that are found in our world? Surely in this kind of circumstances, trusting immediate religious experience is naïve and certainly not properly basic. In fact, it seems as if there is a sense in which the kind of modern pluralistic societies that are made possible by neutral democratic states and respect for human rights undermine the very rationality of 18 Alvin Plantinga: ’Is Belief in God Properly Basic?’ Nous, 15 (1981), p. 41-51. Reprinted

in Paul Helm (ed.): Faith and Reason, (Oxford University Press 1999).


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religious belief. Plantinga’s subtle defence of the reasonableness of religious belief is simply not successful in the context of a modern pluralist society. To conclude this short look at the reasonableness of religious belief and to return finally to the overall argument: If the skeleton of an argument against the possibility of reasonable religious belief given here can be fleshed out successfully, then there is a sense in which it is difficult to come to respect intellectually – in the sense defined above – those who enter normative debate with a set of religiously based norms. As we saw earlier we may intellectually respect other participants in a rational normative debate in spite of disagreeing with them when we come to see their beliefs as having survived a process of reflection and an attempt to reach the widest possible dialectical equilibrium. What the above argument, if cogent, shows is that no norms based on religious belief can survive such processes of reflection and exposure to the views and arguments of other participants in normative debate. Whereas the liberal (in the comprehensive sense), of course, must politically respect the rights of religious people to believe what they like and to express their beliefs – in order to allow for an open normative debate and in order not to impose ethical views from without – he must see the ‘citizen of faith’ as failing to live up to the norm of autonomy, the norm that bids us ‘to critically examine our deepest ends and ideals’.19

References Blackburn, Simon, Ruling Passions, Oxford University Press, 1998. Dworkin, Ronald, A Matter of Principle, Harvard University Press, 1985 Horgan, Terrence and Timmons, Mark, “Troubles for New Wave Moral Semantics: The ‘Open Question Argument’ Revived”, Philosophical Papers, 1992, vol. 21, 153-75. Kymlicka, Will, Contemporary Political Philosophy – An Introduction, Oxford University Press, 1990. Mulhall, S. and Swift, A, Liberals and Communitarians, 2nd ed., Blackwell, 1996. Plantinga, Alvin, “Is Belief in God Properly Basic?”, Nous, 15 (1981), p. 41-51. Rawls, John, A Theory of Justice, Oxford University Press, 1972. Rawls, John, Political Liberalism, Columbia University Press, 1993. Raz, Joseph, Morality of Freedom, Oxford University Press, 1986. Wright, Crispin, “Truth in Ethics”, Ratio (New Series), vol.8, December 1995, 209-26.

19 Cf. footnote 14.

How much religious and cultural diversity can liberalism tolerate? LINDA BARCLAY I The history of the relationship between liberalism and religion is a long and complex one. In this paper I will focus entirely on some contemporary versions of liberalism and explore what resources they have for protecting and promoting religious freedom. I shall argue that these resources are less expansive than is often thought.

II The more established liberal defence of religious freedom is via the defence of individual rights. Each individual’s possession of rights to freedom of conscience, speech, association and so on, can be used by him or her to freely pursue, in concert with others, whatever religious activities are desired. The only restriction on this voluntary religious activity is that others who do not wish to participate in the religion and do not wish to be affected by it, must have their equally important rights to freedom of conscience, association and so on respected. On this standard liberal model of religious freedom, religion is voluntary, something either pursued or avoided by individuals whose rights equally enable either choice. A second and more ambitious liberal defence of religious freedom is to appeal to the separation of church and state. More recently this ideal of separation has been expanded to include not only the separation of the church from the state, but also the separation of all controversial conceptions of the good life from the concerns of the state. In other words, many contemporary liberals consider it desirable that the state not only remain neutral with respect to its citizens diverging religious beliefs, but that it similarly remain neutral with respect to their diverging views about the good life. As with the separation of church and state the justification for this broader ideal of neutrality is varied. Neutrality may be defended as a prophylactic device, as an effective way to secure social harmony for example. But much more commonly it is defended on the grounds of respect for each person’s individual autonomy. For example, Ronald Dworkin argues that any just state is required to show equal concern and respect to all of its citizens, a respect that is violated if it favours some citizens’ views about the good.1 As with its justification, the scope of the demand for neutrality also varies. Neutrality may require only that the state not persecute or penalise people 1 Ronald Dworkin, ‘Liberalism’ in A Matter of Principle (Harvard University Press, 1985).

John Rawls is another prominent defender of both individual rights and state neutrality.

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who hold certain views about religion or the good life, or it may more demandingly require that the state in no way favour or promote some controversial views over others by providing any financial or legal favouritism for a particular church, for example. It is important to recognise that the defence of individual rights is quite distinct from the neutrality argument. Some contemporary liberals, Dworkin most prominently, claim that the raison d’etre of individual rights is that they are an effective means of implementing state neutrality. Individual rights exist to prevent the state from acting on some religious matter, or some other controversial conception of the good life.2 I think we should reject this suggestion that rights are just a way of implementing neutrality as it is important to acknowledge that state neutrality is a much stronger requirement than the protection of individual rights. Many contemporary liberal theorists defend the importance of individual rights without committing themselves to state neutrality. Such non-neutralists consider it acceptable for the state to provide some support for a particular church, or a particular controversial conception of the good, as long as it protects all citizens’ individual rights.3 It remains open for liberals like Dworkin to argue that a state, which exhibits such favouritism, fails to show equal respect to all of its citizens. My point here has been to acknowledge that neutrality is a very controversial development in liberal thinking, and a development rejected by many within the liberal camp. How much tolerance toward religious diversity do these standard liberal views provide? At first glance, it appears as though they provide as much tolerance as could be desired. If all people have equal and extensive rights to freedom of speech and association, among other things, there is no religion, which they are prevented from either joining or leaving as they so choose. Atheism, apostasy, heresy, conversion, indifference, as well as particular religious devotions will all be equally protected. If neutrality is also adhered to, then no religion will enjoy state sanctioned legal or financial advantages over any other, so nor will it be the case that the odds for success and flourishing are deliberately tipped in favour of any particular religion. How well each religion does will be a product purely of the choices of individual agents. From such a perspective, religious freedom and tolerance seem expansive indeed. But from another perspective, the tolerance is much less expansive. What the liberal defence of freedom of religion protects, is those religions which, like the liberal argument itself, afford central value to the choices of individuals and the rights designed to protect them. Religions that do not consider individual choice to be the greatest value, or at least a value that always overrides other values, will suffer considerable intolerance under a liberal regime. It can be hard for communities that do not valorise individual autonomy to flourish or even 2 ibid. 3 Such a position is defended by, among others, Charles Taylor, ‘Cross Purposes: the

Liberal-Communitarian Debate’ in Nancy Rosenblum (ed) Liberalism and the Moral Life (Harvard University Press 1989); and George Sher, Beyond Neutrality. Perfectionism and Politics (Cambridge University Press 1997).

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survive in a liberal culture, despite the fact, that from their perspective, they are nonetheless a source of great value to their members. To make this point more vivid, consider some examples of religious groups whose practices conflict with the individual rights of some of their members. The Amish and the Hutterites in the United States and Canada, the ultra-orthodox groups in Israel as well as some of the Muslim and Hindu groups in India, all adhere to various practices which are in direct tension with the civil and political rights held by their members who are also citizens of states which aspire to be liberal. Arranged marriages, the denial or restriction of education for girls, restrictions on the freedom of their members to read the books and newspapers of their choice, forced participation in numerous religious ceremonies, different marriage and divorce arrangements for men and women are just some examples. The more insistent a liberal state is that all civil and political rights be available to all of their citizens equally, the less free such religious groups are to practice these aspects of their religion. To them, that is a loss of religious freedom. It would be a foolish exaggeration to claim that increasing acceptance of universal liberal rights has had only a limiting affect on religions. To the contrary: many religions have adapted and survived the value swing toward the primacy of individual choice and in no way seek to abridge the human rights of their members. In addition, many more religions have flourished just because the presumption of free association has made it easy for people to leave the religion they were born in to and devote themselves to another. My point has been to argue that the thoroughly liberal values which underpin individual rights and separation of church and state are not wholly tolerant towards some religions, and not tolerant at all toward some of the practices and beliefs pursued by all religions at some time or another in their history. To embrace universal individual rights is just to renounce many of the practices and values which all religions, at some point in their history, have pursued and been seen by them as at the heart of their distinctness and their unique source of value.

III The forgoing raises an interesting question about whether or not it might be possible to adapt or reinterpret liberalism, so as to make it more tolerant towards religions that don’t themselves place such a high premium on individual choice. In this section I want to explore an argument that suggests such a possibility. I will discuss a recent argument in favour of minority rights proposed by the prominent liberal philosopher Will Kymlicka.4 What makes a strategy like Kymlicka’s look promising for more expansive religious tolerance is that he argues it is fully compatible with liberalism and its focus on individual rights that people can have differential rights according to their group membership, that is, that it is justified, on liberal grounds, to allow different groups different privileges because of the distinctness of their community. The particular minor4 Especially Multicultural Citizenship. A Liberal Theory of Minority Rights (Clarendon

Press, Oxford, 1995).


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ity rights that Kymlicka addresses are those of national minorities, previously self-governing societies involuntarily incorporated into another culture through conquest and colonisation. The indigenous populations of Australia, Canada and the United States are prominent examples, but of course there are such minority groups spread throughout the world. After explaining Kymlicka’s view on the rights of national minorities, I will discuss the implications of his argument for religious minority groups. Kymlicka’s liberal defence of minority rights consists of two parts. The first part is to recognise the importance to individuals of cultural membership. Liberals are committed to the value of individuals choosing their own conceptions of the good life. Kymlicka claims that it is on this basis that individual rights and liberties are defended from a distinctly liberal point of view. But it is also on this basis that we can appreciate the importance of cultural membership, for such membership is essential for the ability to exercise one’s autonomy. Although liberals value an individual’s ability to choose his or her own conception of the good life, no individual chooses de novo. We each choose from among a set of options, and these options are presented to us by our cultural heritage. Thus membership in a culture is a precondition of the ability to exercise one’s autonomy. Kymlicka limits the scope of this claim by stating that it is a broad ‘societal culture’ which is necessary for the ability to exercise autonomy. ‘Societal culture’ is “a culture which provides its members with meaningful ways of life across the full range of human activities, including social, educational, religious, recreational, and economic life, encompassing both public and private spheres. The cultures tend to be territorially concentrated, and based on a shared language.”5 As this definition indicates, the notion of culture important to Kymlicka’s argument is one based on a shared language which permeates the full range of human activities in both public and private life. Thus, being a member of the Danish, Australian or Canadian societal cultures or a member of one of the numerous indigenous societal cultures is a precondition for individual autonomy, but being a member of the teenage culture or gay culture, is not. The second part of Kymlicka’s argument is to note that citizens in most multinational states are differently advantaged with respect to the good of membership in a societal culture. In its institutions and practices, the state cannot help but promote some societal culture at the expense of others. By recognising certain languages and not others, by celebrating certain events as public holidays, through the history that children are taught in school, the state inevitably promotes a certain societal culture. Given that the various societal cultures of indigenous people are not promoted or protected in this way then the state fails in its duty to treat all of its citizens as equals. The good of cultural membership, a good that allows individuals to be autonomous choosers, is more readily available to some citizens than others. Kymlicka also suggests that this particular 5 Multicultural Citizenship, 76

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account of the good of cultural membership explains why many indigenous people fare so badly in colonised states. Such people, through no choice of their own, have lost the languages and the practices from which they could make sense of the world around them and from which they could choose meaningful ways of life. The emphasis on involuntary incorporation plays a significant role in Kymlicka’s argument, for he believes that the rights of national minorities are quite different from those of immigrants. When people voluntarily abandon their societal culture and choose to live in another it is reasonable to expect them to integrate into their newly chosen societal culture. This is not to suggest that Kymlicka thinks immigrants don’t have special rights. He certainly thinks that integration places demands not only on the newcomers but also on the culture into which they immigrate which has a responsibility to adapt so that integration is possible. This, he believes, may require all kinds of institutional and legal adaptions regarding dress codes, language rights and tolerance of different religious practices.6 Nonetheless, Kymlicka believes that the rights of national minorities will be significantly more expansive than those of immigrants, for the aspiration is not necessarily integration at all, but for some kind of separateness, or ‘selfdetermination’, which requires self-government rather than integration rights. Such self-government rights protect a minority culture from the impact of decisions made by the majority and help to ensure it has an equal chance to prosper and are justified on these grounds. These rights can include special representation rights in parliament, the right to use their own language exclusively within their communities, special hunting and fishing rights granted only to members of the group and excluding non-members, some exemptions from the requirement to observe the laws and obligations of the wider community, and, perhaps most important, a degree of autonomy over the education of its young and over local administration and local laws.7 Despite the apparent expansiveness of the differential rights Kymlicka is prepared to countenance for national minorities, it is crucial to add that he insists that his argument cannot be used to defend what he calls ‘internal restrictions’, the attempt by a group to protect itself against internal dissent by limiting or restricting the basic civil and political liberties of its own members. The justification for self-determination rights is that they protect minority societal cultures, something considered a good because membership in such cultures is a precondition of each individual’s ability to exercise individual autonomy. As the defence of self-determination rights is ultimately grounded in the value of individual autonomy, the argument cannot then be employed to justify restricting it. Members of national minorities are to have the same civil and political rights as other citizens: self-determination rights are to protect the minority group only from outside pressure, not from internal dissent. Thus, Kymlicka emphatically 6 Multicultural Citizenship, 96-98, 113-15 7 Multicultural Citizenship, ch.6


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states that the special rights of national minorities do not include anything that would involve abridging or reducing the basic civil and political rights of the members of those groups.8

IV How well does Kymlicka’s defence of minority rights do in protecting religious and cultural diversity? The answer to this question comes down to how significant it is to deny a cultural the right to enforce internal restrictions. In a sense, the refusal to countenance internal restrictions seems to be just what we should expect from a liberal defence of minority rights, with its distinctive focus on individual liberty. But it nonetheless makes a considerable difference to selfdetermination rights if they are cast strictly as external protections rather than internal restrictions. Some Indigenous communities in Canada and the United States for example have previously been exempt from Constitutional requirements to respect various bills of rights within their own communities. Part of the desire among indigenous groups to be exempt is to ensure they have the ability to shape their community according to their own distinct values. An example may be the prominent importance to the group of traditional ceremonial practices or the traditional responsibilities of individuals toward the group as a whole, including, for example, arranged marriages, or compulsory participation in religious life, practices that may to some extent be incompatible with the privilege of individual freedom. From the perspective of such a group, the value of individual autonomy may play a poor second fiddle to other values that define the nature of group life. The aspiration for self-determination in these cases often includes the desire to restrict some individual rights for the sake of protecting the values and way of life that characterise the group as a whole. Kymlicka’s prohibition on internal restrictions for national minorities is not a trivial requirement: it limits the ability of groups to retain some of their distinct cultural and political practices, which seems odd, to say the least, as it is precisely the desire to retain distinct identity in this sense that underpins the aspiration for self-determination in the first place. The aspiration for selfdetermination is for the ongoing survival of the distinct way of life typical of a given community. Kymlicka’s rather surprising response is to deny that liberalising a culture, requiring it to be governed by respect for individual rights, does threaten the continued viability of that societal culture as a distinct, selfdetermining society. To claim as I have that such liberalisation threatens genuine self-determination because it runs roughshod over the distinct values and way of life of a community, is to make the mistake of identifying a societal culture with its current values and way of life. Through frequent appeals to the example of the Quiet Revolution in Quebec, Kymlicka argues that any society is capable of experiencing a radical transformation in its values and way of life, without this necessarily threatening its continued viability as a distinct societal culture. In a relatively short period of time Quebec was transformed from a rural, conserva8 Multicultural Citizenship, 35-44, 152-164

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tive, Catholic community to a fully liberal, modern society, and yet no one could sensibly claim that Quebec as a unique and distinct societal culture was destroyed. Similarly then, indigenous communities can experience liberalisation without necessarily facing the threat of destruction. Thus, Kymlicka denies that the requirements of liberal citizenship and the respect for human rights are in conflict with the kind of self-determination it is legitimate for a national community to desire: its continuation as a distinct societal culture, not necessarily the continuation of its current values and way of life. At this junction, the obvious question to ask is whether we can plausibly distinguish a societal culture from its values and way of life. If an individual culture experiences a radical transformation or loss of the values that characterised its way of life, then what features do persist to justify the claim that it continues to flourish? As indicated earlier, Kymlicka claims that a societal culture is characterised by ‘a shared vocabulary of tradition and convention’ which he suggests is constituted by shared language and history. The good of cultural membership then, the good that Kymlicka argues justifies differential rights, is the good of belonging to a culture characterised by a shared language and history, not the good of belonging to a culture characterised by its enduring commitment to certain values. Whether or not this argument is successful ultimately hinges on what we count as survival, or rather more importantly, what each group itself would count as it’s survival. Kymlicka’s view is that the endurance of a shared language and history constitute survival, but it is surely a truism that the history and language of a culture are enmeshed with the importance that certain values have to the culture whose language and history are at stake. To tell a story about one’s past, to write its history, is an activity laden with the storyteller’s ascription to certain values. To tell a proud story about the momentous achievements of the early white settlers, for example, is to reveal one’s adherence to certain values and to take pride in what is regarded as a courageous response to adversity. To tell an alternative story about the prominence of murder, rape and kidnap in white settlers relationship with indigenous people is to reveal adherence to a very different set of values and thus to respond with shame or censure to that past. These disputes about how Australians, Canadians of Americans should tell their history are not often disputes about the bald facts, although of course there are disagreements about which facts should be emphasised and which sidelined. Ultimately they are disputes about what we should make of these facts: whether we should think of them with pride, shame or indifference. Undoubtedly the stories that indigenous people and religious communities tell about their own histories are also told through the lens of certain values. The relationship between language and the values of the community whose language it is, is no less entwined. Different words and languages, no less than the stories we tell using them, not only create options for how we can live, as Kymlicka suggests, they also impart certain values to those options. If these platitudes or versions of them are true, certain things follow. First, and as a minor point, it means that fundamental changes to the values of a cul-


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ture very often may mean changes to its language and history. There is no obvious way to conceptualise the relationship between values on the one hand and language and history on the other, and I’m obviously not attempting to develop any such account here. We don’t want to be driven to the implausible conclusion that any change in the values typical of a culture mean a complete loss of its history and language. But the alternative end of the spectrum which Kymlicka defends is equally implausible, whereby profound changes in values are presumed to have no impact on language and history. Given that at least sometimes language and history are affected by changes to the values of a community, on Kymlicka’s own definition of societal culture, changes to the values typical of that culture may well impact detrimentally on the continued viability of that culture, as shared history and language In any case the second, and much more important point I wish to make is this. Even if we are prepared to accept Kymlicka’s claim that we should define culture only by language and history, the connection between the values of a community and its shared language and history, make it apparent that the reason it is a great loss to lose one’s language and history is at least partly because one loses the possibility of sharing with others certain values and a certain way of life. The loss that indigenous people lament cannot be adequately captured by claiming that it is a loss of language and history, denuded of their connection to a certain way of life. The loss of language and history is itself a tragedy for these people because it means the loss of the ability to fully live by and transmit certain values about kinship relations and responsibilities, certain ways of relating to the past and to the natural environment, certain beliefs about the individual’s responsibility to his or her community and so on. The struggle for selfdetermination is so tenaciously fought precisely because it is perceived to be a struggle for the survival of a very distinct way of life which cannot possibly be accommodated by the languages and history and the values, of the dominant culture. Kymlicka fails to show that this is the kind of loss which is resisted by societal cultures. If all indigenous people are faced with is the loss of culture defined by language and history, then it’s unclear why the loss is simply not recouped by the acquisition of competence in the dominant language and a basic understanding of the history of its institutions, as, at that point, one acquires a whole new set of options from which to choose. The inequality and disadvantage that follow from Kymlicka’s definition of culture could be characterised as potentially just a short-term one, one eventually recouped by language classes and more active measures to end racial discrimination, measures, in other words, which assist the process of integration and thus the acquisition of new options from among which individuals can choose their own conception of the good life. But of course it is ludicrous to even suggest that the loss is recouped: for what is lost is not after all a set of meaningful options from which to choose, but the possibility of a specific set of options or ways of life which are not available once the value of individual autonomy has been superimposed on a nonliberal culture.

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To be fair to Kymlicka, he himself certainly acknowledges that the loss of culture is a very grave loss, even if one can successfully integrate into another societal culture. The reasons he adverts to include the role of culture in selfidentity and sense of secure belonging, its contribution to dignity and recognition, including mutual recognition and so on.9 The problem for Kymlicka is that there is clear possibility for tension in claiming cultural membership is valuable because is provides a context of choice, and also claiming it is valuable for all these other reasons which may bear no connection at all the capacity of individuals to make autonomous choices. I’m not claiming that these reasons are necessarily incompatible, for they are not: one can cherish one’s culture both because it provides choices and because it grounds identity and self-esteem. But if what is emphasised as valuable is primarily the context of choice, it is hard to sustain the argument that people need their own culture, rather than some other culture into which they can integrate. If, instead, we emphasise the role of culture in identity and self-esteem, then it may be that the loss of the values and nonliberal way of life of the culture do represent a significant loss, a loss, to a large extent, of the culture itself.

V I have argued that Kymlicka’s liberal defence of differential rights is relatively unsuccessful at protecting many national minorities to the extent that they would wish. How does it fare with respect to the kinds of religious groups discussed earlier? One striking feature of Kymlicka’s argument is that he doesn’t apply it to religious groups as he usually discusses religious cases within the discussion of the rights of immigrants. Indeed, one of the great obfuscations of his whole argument is to generally treat minority rights as a largely ethnic issue, concerning either the rights of immigrants or the rights of indigenous populations and although he does occasionally gesture toward some religious groups, like the Amish or the Hutterites, he fails to clarify exactly how they fit in to the structure of his argument, and his conclusions as to what rights they should have are vague, to say the least. Yet it seems to me that his argument in favour of self-determination rights for national minorities applies equally well to such religious groups. The main reason for this is that many religious groups also seem to be distinct societal cultures according to Kymlicka’s characterisation of that notion. We can consider here the case of the Amish again, or the ultra-orthodox Jewish communities within Israel, just to take two of many possible examples. There is virtually no aspect of their members’ lives that such cultures do not interfere in, including, on many occasions, to the extent of compulsion. People are told what to read and what not to read, education is usually very restricted and within the ultra-orthodox entirely excludes the teaching of any secular subjects except for some basic arithmetic, dress codes are strictly enforced, and failure to observe 9 Multicultural Citizenship, 89-90


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the Sabbath evokes hostility and even violence. Importantly, members are almost completely economically dependent on the community, such that the boycotts or expulsion that they experience if they fail to observe the rules of the community are financially devastating.10 Crucially, such communities do not share the aspiration of their countries to be liberal, largely secular societies and demand all kinds of differential entitlements so that they can distance themselves from such liberalisation and secularisation. Clearly such religious groups are societal cultures in just the same way that national minorities are. They share a language and history, are territorially concentrated and provide their ‘members with meaningful ways of life across the full range of human activities, including social, educational, religious, recreational, and economic life, encompassing both public and private spheres’. Recall that the other criterion Kymlicka uses to justify self-determination rights to national minorities but not immigrants is that national minorities were involuntarily incorporated into another culture. But again, it certainly is not the case that the Amish or the ultra-orthodox ever agreed, or by their voluntary actions ever implicitly agreed, to integrate in to the surrounding dominant culture. As Kymlicka himself notes the Amish and other groups immigrated to the United States and Canada on the understanding that they would be left alone to pursue their own distinct way of life, and the ultraorthodox arrived in contemporary Israel at the same time as other Jews, so there seems no good reason to describe them as having voluntarily immigrated to an already existing liberal culture. So these kinds of religious groups clearly qualify as societal cultures on Kymlicka’s own definition of that term, and there is therefore no reason why they should not qualify for the same differential rights that Kymlicka claims national minorities are entitled to. But we have already seen that these rights do not include internal restrictions, that is, any attempt to abridge or remove the individual rights of each member of the group. Kymlicka claims that this does not threaten the continued survival of the group, because the group is defined by shared language and history, not its current shared values. I have suggested that this is implausible with respect to many national minorities, but it is surely even more implausible with respect to many religious groups. In what way could we plausibly suggest that the ultra-orthodox or the Amish communities continue to survive despite the loss of their non-liberal values and ways of life? If the ultraorthodox lose these things then they more or less just integrate into the broader Israeli societal culture. Their fierce resistance to the imposition of liberal rights for their members is a fight for their survival as a unique community of shared values. What they want, and what sets them apart from other Israeli Jews, what the Amish want, and what sets them apart from other Christians, is the ability to impart highly specific shared values and a shared way of life. If religious communities like these are accepted as societal cultures, and there is no reason why they should not be, given Kymlicka’s definition, then the attempt to define so10 see Avishai Margalit and Moshe Halbertal, ‘Liberalism and the Right to Culture’, Social

Research, vol.61, no.3, 1994.


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cietal culture by its shared language and history rather than shared values looks terribly implausible. Many religious societal cultures are clearly identified and differentiated because of their ascription to a highly specific set of values and practices. I believe it is this reason, above all else, that explains Kymlicka’s failure to consider some religious groups as societal cultures. Such groups make a mockery of his claim that societal cultures are defined only by shared language and history rather than shared values.

VI It seems we are back where we started from: liberals achieve only limited success in tolerating cultural and religious diversity, and the limits of that tolerance are set by whether or not a religious or cultural way of life is itself liberal. If a religious or cultural community wish to engage in practices that involve the violation of their members’ individual rights, that cannot be tolerated. In discussing individual rights at the beginning of this paper, I emphasised that I did not wish to exaggerate the depth of liberal intolerance, for the extension of individual rights has opened up many possibilities, including for religious pursuits. Similarly, whilst I think it is clear that Kymlicka’s defence of minority rights is intolerant toward non-liberal groups, those differential rights that he does defend are both significant and very important to minority societal cultures. Minority rights which protect a distinct community from the pressure of a majority culture are an important and necessary addition to universal individual human rights. My complaint with Kymlicka is with his blind refusal to recognise that the differential rights he is prepared to countenance are rather limited, and cannot win for all vulnerable societal cultures the kind of protection that they want, and indeed, in many cases, need for their very survival. Liberalism, like any other fighting creed, can only tolerate so much, including so much freedom of religious practice. So, where do we stand? Is there any other way of making liberalism more expansive in its tolerance of non-liberal cultures? I don’t believe so. There are theories that are indeed more tolerant of religious and cultural diversity, but such tolerance is won at the expense of liberal values. For example, there are numerous theories that believe justice demands that each group be left more or less entirely free to pursue its own values and way of life with very little if any outside interference. Freedom consists in the freedom of the group to be left alone, and this includes the right to resist the outside imposition of liberal values and liberal rights.11 Others, like Avishai Margalit and Moshe Halbertal, stress the centrality of cultural membership in self-identity and claim that such importance grounds more than non-interference: it establishes a duty on the dominant culture to financially assist the minority culture to pursue its own way of life according to its own values, including non-liberal values.12 All such theories, 11 see, for example, Chandran Kukathas, ‘Are there any cultural rights?’ Political Theory,

vol.20, no.1, 1992. 12 ‘Liberalism and the Right to Culture’.


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whatever their claims to the contrary, distance themselves from liberalism and the commitment to universal individual human rights for they explicitly defend the right of cultural minorities to violate the basic rights of their members – particularly, as it shouldn’t need saying, the rights of women and children within those groups. If such groups want to deny education to girls, such is their right. If such groups wish to prohibit women from holding public positions, or obtaining divorce, such is their right. If such groups wish to make religious participation a condition of membership, such is their right. Most of these non-liberal theories recognise only one universal individual right that must be recognised by all groups which is the right of exit, that is, the right of any individual to leave the group if it doesn’t satisfy him or her. The rationale for these alternative theories is simply that the value of individual choice is not necessarily as important as other values. That they pay very little lip service to the value of individual choice is most clearly revealed by their recognition only of the right of exit, which is effectively entirely useless to an uneducated, illiterate, poor woman whom, in any case, no other community may want. In short then, I think Kymlicka’s theory comes close to reaching the limits of how far a genuinely liberal theory can tolerate religious and cultural diversity. If one is unhappy with the limitations of his brand of tolerance, then one is confronted with a stark choice between the value of individual autonomy and the various other values of community membership. There is no way of satisfactorily embracing all such values. To go further in the direction of protecting the distinct societal culture is to move further away from protecting individual autonomy and universal human rights. I side firmly with liberalism. But in doing so, I, unlike Kymlicka, am willing to concede that some communities wither under such liberal regimes, including some that are a source of great value to some of their members. This, in short, is something liberals should have the courage to admit.

References Dworkin, Ronald, “Liberalism” in A Matter of Principle, Harvard University Press, 1985. Halbertal, Moshe and Margalit, Avishai ‘Liberalism and the Right to Culture’, Social Research, vol.61, no.3, 1994. Kukathas, Chandran, ‘Are there any cultural rights?’ Political Theory, vol.20, no.1, 1992. Kymlicka, Will, Multicultural Citizenship. A Liberal Theory of Minority Rights, Clarendon Press, Oxford, 1995. Sher, George, Beyond Neutrality. Perfectionism and Politics, Cambridge University Press 1997. Taylor, Charles, “Cross Purposes: the Liberal-Communitarian Debate” in Nancy Rosenblum (ed.) Liberalism and the Moral Life, Harvard University Press 1989.

Political Classification and the Framework of Tradition Reading the Universal Declaration of Human Rights from a History of Religions Perspective THOMAS WAMSLER This paper will be focussing on the Universal Declaration of Human Rights (UDHR), adopted by the United Nations General Assembly in 1948. A lot has happened in the human rights field since 1948, but the declaration remains the focal point of the human rights debate, especially outside of specialized human rights advocacy and research – thus the choice of examining the declaration. In the course of this paper I wish to do two things. First I will try to place the UDHR within it’s original context. Secondly I will attempt to shed some light on what makes human rights work – that is, the persuasive force of the declaration. Both of these considerations derive from applying a history of religion approach to the declaration. Acquiring a full understanding of a text is considerably facilitated by knowing how it came into being. In the case of the UDHR this does not entail contemplating merely a single context. Being a product of international politics it wasn’t shaped by just one context, but by a wide range of different contexts. An essential factor in shaping the declaration was it’s coming into being in the wake of The Second World War. The calamities of war and the horrors of nazi brutality were highly influential on the atmosphere in which the declartion was drafted and adopted. During the drafting process nazi atrocities were often cited as the antithesis of the declaration. Apart from nazi brutality the prevention of war was a major issue in the creation of human rights. In the preamble it is stated to be one of the main objectives of the declaration. Likewise in the UN Charter from 1945. I shall return to the UDHR preamble later, so for now I will just quote the charter. It’s opening words are: “W E THE PEOPLES OF THE UNITED NATIONS DETERMINED to save proceeding generations from the scourges of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights...”. Another context that influenced the minds of those who wrote the declaration was the emerging cold war. This did not however have as much influence on the wording of the text as on the general conditions under which certain issues were or were not brought into the text. Occasionally some western delegates suggested amendments or made remarks that where clearly meant as a criticism of the Communist countries or vice versa. Furthermore, the East Block countries conducted themselves very much en bloc. Regularly, when a delegate from one of them said something, the rest of their delegates would rise to say exactly the same thing. In the final instance they abstained from voting at the

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adoption of UDHR, claiming that it’s human rights provisions were not farreaching enough. The twilight of colonialism also played a part in the diplomatic climate of the drafting process. Again this only played a minor role in the actual contents of the declaration. But it may have had considerable impact on what was excluded from the declaration. The fact that large parts of the world were still under foreign rule meant that the West was overrepresented in the United Nations and thus in the drafting of UDHR. The western dominance in international power relations contributed further to this state of affairs. UDHR was initially drafted by an eight member Drafting Committee. The eight countries represented on the committee were USA, USSR, UK, China, France, Chile, Lebanon and Australia. This constituted a marked degree of western predominance. In terms of intellectual and legal culture both Chile and USSR must be regarded western countries. (In the case of Chile, also for obvious geographical reasons.) The Lebanese representative was in fact also western. He was not Muslim. He belonged to Lebanon’s large Maronite Christian community. The Maronite church is affiliated to the Roman Catholic Church, and he regarded himself as belonging to the western Christian tradition, rather than to the Arabic ethnic community. That leaves us with only the Chinese representative as non-western. But he was well acquainted with western culture, having studied philosophy at a couple of American universities. He was nevertheless essentially a Confucian. He wasn’t Communist as he represented the Kuomintang, not the Maoists. The western dominance in the drafting process was partly due to the colonial situation. This has probably contributed to the shaping of UDHR within western legal traditions, a subject on which I shall elaborate in a moment. Other factors that supplied aspects of the context were the structural workings of the new United Nations organisation, the power relations of international politics in the post war years (mentioned above), and the internal situation of each member state. The final context of the UDHR that I wish to touch upon is its dependency on the textual tradition of constitutional law. The declaration is conceived within the constitutional law tradition, regarding it’s vocabulary as well as its overall structure. Vocabulary first. The simplest way to bring home this point is by giving you a few examples. Compare the following: UDHR, 1948, Art.9: No one shall be subjected to arbitrary arrest, detention or exile. Déclaration des Droits de l’Homme et du Citoyen, 1791, Art.7: No one shall be accused arrested or detained, except in the cases determined by law and following the prescriptions of the law. Syrian Constitution, 1964, Art.28, subsection 2: No one shall be subjected to a search or inquiry, or taken into custody, except as provided by the law. Danish Constitution, 1953, Art.71, subsection 2: A person shall be deprived of his liberty only where this is warranted by the law.

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THOMAS WAMSLER Soviet Constitution, 1936, Art.127: Citizens of the USSR are guaranteed inviolability of the person. No one shall be placed under arrest except by decision of a court of law or with the sanction of a procurator. Magna Carta, 1215, ch.39: No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed – nor will we go upon or send upon him – save by the lawful judgment of his peers or by the law of the land. (This is the only UDHR right that can be traced all the way back to the Magna Carta.)

Regarding the overall structure: The declaration consists of an introduction stating the premises for the declaration followed by a series of numbered articles. This arrangement mirrors the 1791 French Declaration of the Rights of Man and the Citizen, the British Petition of Rights from 1628, Declaration of Rights from 1689 and the Act of Parliament from 1911. As these examples illustrate the Universal Declaration was held well within the textual traditions of constitutional law. Being the primary source of the declaration the constitutional tradition is the primary context in which the declaration has to be understood. Political practicalities and political goodwill, the latter sometimes verging on the utopian, may have been decisive in choosing which rights to include in the declaration. But the source from which the rights were chosen was constitutional law. A statement made by the head of the secretariat of the Commission on Human Rights, the Canadian professor of law John P. Humphrey, confirms this. On the first meeting of the Drafting Committee he was asked which philosophy that lay behind the secretariats outline for a declaration. This outline supplied the foundation for the work of the Drafting Committee and for the final version of UDHR. Humphrey answered that the outline was not based on any philosophy, and continued: “The Secretariat, he explained, had merely prepared an outline to serve as a basis for the discussion of the Drafting Committee. In doing so it had attempted to include all of the rights mentioned in various national Constitutions and in various suggestions for an International Bill of Rights.” (E/CN.4/AC.1/SR.1 – United Nations 1947) Various national constitutions and suggestions for an international bill, those are the sources. The first half of the twentieth century saw several suggested declarations from individuals and different organisations. But these have only had direct influence on the declaration in as much as they where coined within the constitutional law tradition. Or their provisions where translated into the language of constitutional law. Some of the economic, social and cultural rights in the declaration derive from these suggested declarations, though. Such rights are new to the constitutional tradition. They are a twentieth century addition to the tradition, framed in the rights discource of constitutionalism. Let us now turn our attention to the constitutional influence. Humphrey said that it was drawn from various national constitutions. This could be taken to


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suggest that it reflects constitutional provisions from various cultural traditions. But it is not so. The world does not contain various constitutional traditions. The different constitutions show very little variance. They tend to state the same rights in more or less the same manner. There are different legal traditions reflecting different cultural traditions, but only western jurisprudence contains a constitutional tradition. The idea of a national constitution is closely interconnected with the ideas of nationhood and liberal democracy. Together with these ideas it has set the political scene since the end of the eighteenth century. During the nineteenth century most European countries adopted a national constitution; through the colonial and postcolonial eras the Third World countries have had similar constitutions imposed upon them, or have adopted them on their own account. Ironically the independence of former colonies was largely claimed by means of a concept of nationhood that was framed by European nineteenth century ideas. Correspondingly, the political seal of national independence was the adoption of a national constitution framed within the western tradition of constitutional law. But let us just briefly trace the origins of constitutional law beyond it’s heyday in the late and post-enlightenment. Throughout the enlightenment era the terminology of constitutionalism was developed and brought closer and closer to real political influence. Many of the early landmarks of constitutionalism were actually laid out in the only Western country that still does not have a constitution – Great Britain. Especially influential were the Declaration of Rights and Bill of Rights resulting from the events of 1689 that are sometimes referred to as the “English revolution”. Both the American Declaration of Independence and the French Declaration of the Rights of Man and the Citizen rely heavily on these texts. Locke’s important work Two Treatises of Government was also sparked of by the events of 1689. To a large extent his thinking laid the foundation for later conceptions of rights and democracy. But his thinking was also dependent on preceding traditions. The theories of natural law to which his notions belong are a longstanding philosophical tradition with roots in ancient Greek and especially Roman philosophy. The term natural law dates back to the Stoics. They were the first to fully unfold a theory of natural law, but the basic elements of the theory can be found as early as Aristotle. These elements are as follows: Since reason is common to all human beings, a common law must apply for all. This common law is not a law as such, but a common principle of law upon which the specific laws of each country1 (the positive law) should be based. From its very beginnings natural law has been a legal theory as well as a philosophical. In Greek times it was found in works on social philosophy. In Roman times it played as great a role in the development of Roman law as it did in Stoic philosophy. The legal interest in natural law was perhaps due to difficulties encountered by the “international” nature of the Roman Empire. But in spite of being a legal idea natural law was never a political idea in antiquity. At that stage natural law was not about equal civil rights. It was about inner moral 1 The specific laws of a given society is also refered to as the positive law.

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nature or the general applicability of jurisprudence. The emancipatory politics of individual rights did not surface before the rise of bourgeoisie in the seventeenth and eighteenth century. At this time natural law and constitutionalism were highly integrated. Many of the major natural law thinkers had been jurists, and the subject was increasingly dealt with in a terminology of rights taken from Roman Law. The European legal tradition was highly dependent on Roman Law. In many parts Roman Law was the law of the land and even in those parts where Roman Law was not in force, Roman Law was an essential part of the juridical curriculum. Roman Law was often considered to be “reason codified”. A reference to Roman Law was a reference to authority. The central problems of constitutional thinking tended to be discussed on the basis of passages from Corpus Juris Civilis, the main codification of Roman Law. For example the question whether a ruler commanded absolute power over his subjects, or whether his power was bound by the will of the people, was addressed as a question of how to interpret passages like princeps legibus solutus est – The ruler is above the law. In a later form it reads absolutus est, thus the term absolutism. The readings of Roman Law that where prevalent in the shaping of constitutional law were developed during the Middle Ages, mostly in a clerical context. Being a transnational institution, the Roman Catholic Church gave rise to issues that had to be dealt with in terms of a church constitution. In this case the princeps was the pope. This lengthy digression into medieval jurisprudence and ancient philosophy has illustrated the dependency of the Universal Declaration of Human Rights on a legal textual tradition. Or so I hope. This dependency places the declaration in the Western context. Therefore it cannot be said to be universal in its origins. Its vocabulary and syntax are dependent on a single Western tradition. I will now move on to the second issue I wish to address: What makes human rights work. And they really do work: When looking at the ideological role played by human rights in the dominant traits of political discourse, the idea of human rights seem to carry a considerable persuasive strength. In saying that human rights work I am referring exclusively to their discoursive status. I am not considering whether or not they are being implemented, or whether they would supply an effective remedy if implemented. But in terms of discourse of political desirability human rights are undoubtedly in high regard. “Human rights and democracy” is used synonymously with “the good society”. This moral authority is especially vested in the Universal Declaration of Human Rights, the general point of reference for the human rights project. Its authority derives largely from historical circumstances: The political expedience, if not necessity, of joining the UN, and the UN requirement of adherence to human rights principles. But there is more to it than that. Condemnation of human rights is not simply reproving a breach of contract. The call for human rights is generally intended as a call for good to prevail against evil. Such an understanding of the human rights project is embedded in the declaration itself. The opening of the preamble reads:


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“W HEREAS recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, ...” The first paragraph declares recognition of the human rights idiom to be “the foundation for freedom justice and peace in the world”. The second declares disregard for human rights to lead to “barbarous acts that have outraged the conscience of mankind”, and further states that a world order compatible with the human rights idiom is “the highest aspiration of the common people”. This is a classificational dichotomy that divides human society into two mutually exclusive possibilities. One is that of freedom, justice and peace, the other of barbarity, outrage and – by implication – tyranny, injustice, and war. Recognition of human rights

Freedom Justice Peace

Disregard and contempt for human rights Barbarous acts Outrage to the conscience of mankind ( Tyranny ) ( Injustice ) ( War )

The left side is the way of the declaration of human rights and opposing the declaration is endorsing barbarity etc. There appears to be no third option, since human rights are not merely declared to be conducive to freedom, justice and peace, but their very foundation. In this manner the declaration’s legitimacy is rendered indisputable. The declaration strengthens its position furthering references to humankind as a whole: The barbarous acts that result from disregard for human rights are an outrage to “the conscience of mankind”; a world where human rights prevail is “the highest aspiration of the common people”; and the rights belong to “all members of the human family”. Thus opposition to the human rights course becomes dissent from humanity. This “humanity” is not left an abstract notion, but affiliated to the most intimate of communities – the family. The expression “the human family” ties us to every human being with a bond that is stronger and more intimate than nationhood, ethnicity or any other divisional distinction. This too is a legitimizing classification. These classificational patterns of thought are not mere museal object found in the lofty preamble to a fifty-year-old document. They are still very much at

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work in our everyday notions of human rights. They are human rights doxa. Whenever we hear of human rights violations the atrocities of Nazism, Stalinism, the Khmer Rouge, Latin American dictatorships etc. echo in our minds. The human rights project receives much of it’s persuasiveness from being widely conceived as the opposite of these horrifying regimes. Therefore the critics of human rights rarely oppose the human rights directly, by refusing, say, the right to a fair trail, stating that “not everyone is entitled to a fair and public hearing”. No one wishes to be perceived as siding with tyranny. When human rights are being denounced, it is usually the possibility of universality that is being contested on a general level. There are very few, if any, that take a “no rights”-stance. Either alternative rights are suggested – Asian Values, rights subordinate to the Islamic Sharia or the interests of society – or the content of the declaration is given personal approbation, but the idea of transcultural universality is denied. Already during the drafting of the declaration opposition to certain rights was rarely stated bluntly, but presented as corrections to insufficiencies of the wording or logic of the text. Alternatively the general worldview of the declaration was criticized for being too individualistic, without any single rights being contested. The Communist countries that were highly deficient on human rights issues and abstained from voting at the final adoption of the declaration never refused the basic intent of the human rights project, but repeatedly criticized the declaration for not taking the matter far enough. In those days and today as well the discourse of personal freedom has a kind of clear-cut credibility that is very had to contradict. And this credibility is largely due to the aforementioned classification that separates freedom from tyranny, justice from injustice, a world of peace from a world of war, the humane from the inhumane, right from wrong and good from evil. The persuasive strength of the human rights ideology rests partly on classificational distinctions. But how is this to effect our evaluation? Moral/political classifications work because of their emotional resonance, rather than their rational merits. Does the inclusion of classification in The Declaration of Human Rights make it an irrational, unfounded document? No – in moral politics there is no other way. When attempting to gather public support for basic values there is no alternative to classificational persuasion. Intellectually rigid logical argumentation may serve to convince individual philosophers, but it does not stir the masses. If the UDHR shall rally support for value based politics, it has to move men’s hearts, and that is done with reasoning that has both rational and emotional appeal – at best. Sometimes it is done with purely emotional means, which usually leads to terrible consequences such as precession and spiralling violence. The rational element tends to be a safeguard against the most abusive ideas. Ideologies of discrimination are harder to found intellectually than ideologies of equality. Differences of human value and inherent rights on the basis of differences of ethnicity, race, etc. do not lend themselves easily to rational justification. But the emotional side cannot be done without, however. Try running an electoral campaign without any emotional appeals and see how many votes you will get. One should perhaps stress that adding emotional appeal to


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rational arguments is not simply a matter of manipulating the people. Politicians and scholars are people too, and as people we are also moved by the impetus of emotionally compelling images. Scholars may now and again be so immersed in the conceptual framework of their academic discourse that they find it more compelling than emotionally resonant classifications. But sociologically speaking that is an aberration and it would be an unwarranted arrogance to declare this exceptional behaviour to be an ideal of rationality towards which everyone should strive. Acknowledging the presence of classificational structures in human rights discourse does not undercut it’s legitimacy, but it does effect the way we perceive it. It denaturalizes human rights. We are forced to differentiate between the ideational content and emotive connotations. Human rights derive much of their immediate persuasiveness from being perceived as evidently true, as “natural”. It seems evidently right that no one shall be subjected to inhumane or degrading treatment. Even more so if such treatment is understood as nazi style concentration camp cruelty. But the human rights project is not necessarily the only antidote to brutality and injustice. The evident nature of the project is constructed by classificational means. Constructed naturalness is not an ailment with which human rights alone suffer. It is a common phenomenon. At all times and at all places the dominant values and worldviews are taken for granted. They are simply held to be true because everybody knows they are true. What we take for granted is nevertheless highly dependent on our cultural circumstances. Therefore it is essential that we examine our “taken for granted” views, especially in cross-cultural situations. If our “taken for granted” views are not rationally founded, are we not forced to discard them? We cannot just sit back and watch. We have to live in the world, and living in the world entails holding certain views. In morals and politics some of these views have to be strong views, and strong views tend to become classificational. They become starting points from which we understand our world. These starting points are not chosen arbitrarily. They are not chosen on strictly rational grounds, but they are not arbitrary. They are values about which we feel that we cannot part with them without thereby parting with ourselves. These values are reflected in stories about right and wrong. Stories that put the world into place, and thereby tell us who we are. In the case of human rights The Second World War supplies such a story. The extermination camps and their ideology has become the image of absolute evil in human shape. When we hear the atrocities of World War Two recounted we know that such things should not take place. When these atrocities are dubbed “human rights violations” we know that human rights are good and necessary. The myth of The Second World War legitimizes the quest for human rights. By calling it a myth I do not wish to imply that it is untrue. A myth is simply a story that is widely recognised to be relevant to our understanding of what the world is like. It is a well know story with a well-established interpretation. In the words of the ancient Greek orator Isocrates it is a story that many have told and all have heard. It is, as the historian of religions Bruce Lincoln suggests, a story with truth-

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claims, credibility and authority, that is a story that the speaker claims to be true, the audience considers credible, and which both regard as authoritative. An authoritative story is a paradigmatic story, a model of and for society (Lincoln 1989, 24-25). In such stories the kind of shared values that are vehicles for societal coherence are entrenched. Without the authority that the stories convey, the values seem to loose their credibility. These values are ultimately about the distinction between good and evil. As philosophical terms these are rather dubious concepts. Rallying support for basic moral and political values, however, is impossible without somehow implying that ones own views are good and the alternatives insupportable, and ‘evil’ is one of the more potent words for insupportable. But then good and evil is not arrived at by logical inference; it is a classificational distinction. The horror of the human suffering in the Cambodian Killing Fields or in the Rwandan genocide is so compelling that it forces us to feel that this must not be. In the face of such atrocities good and evil is created. We may be aware that classification is at play in our notions of human rights, and yet choose to accept them, since classificational narratives are the embodiment of values. Ideas and values are not things of the world before they are being recounted in myth. But the persuasive workings underlying the human rights idiom serves as a memento. Reminding us that although the universal applicability and relevance of the UDHR may seem evident to us, this evidence results from classificational persuasion and a long train of historical influence. Being aware of this serves as a reminder not to take too much for granted. As a reminder not to let our attempts at cross-cultural ethics be guided by classificationally entrenched intuitions. As a ‘handle with care’.

References Caenegem, R.C.van, A Historical Introduction to Western Constitutional Law, Cambridge University Press, Cambridge 1995. Humphrey, John, No distant Milleneum, Unesco, Paris 1989. Krueger, Paul & Mommsen, Theodor, Corpus Juris Civilis, Institutiones & Digesta, Weidmannsche Verlagsbuchhandlung, Berlin 1954. Lincoln, Bruce, Discourse and the Construction of Society, Oxford University Press, Oxford/ New York 1989. Peaslee, Amos, Constitutions of Nations, Vol. 1-4, Martinus Nijhof, The Hague 1965-70. Tierney, Brian, Religion, Law and the Growth of Constitutional Thought 1150-1650, Cambridge University Press, Cambridge 1982. United Nations, ESCOR, Comm'n on Hum. Rts. Drafting Comm, 1st Sess., 1st.-8th mtg. – U.N. Doc. E/CN.4/AC.1/SR.1-8, 1947. United Nations (1948) Official Records of the Third Session of the General Assembly, part 1, Third Committee, summary records of meeetings 21.Sept.-8.Dec., Lake Success, New York 1948. United Nations, The International Bill of Human Rights, 1993.


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Further reading Berger, Peter & Luckmann, Thomas, The Social Construction of Society, Penguin, London 1967. Morsink, Johannes, The Universal Declaration of Human Rights: origines, drafting and intent, University of Pennsylvania Press 1999. Tuck, Richard, Natural Rights Theories, Cambridge University Press, Cambridge 1979. Verdoodt, Albert, Naissance et signification de la Déclaration Universelle des Droits de l’Homme, E. Warny, Louvain 1964.

International Human Rights Law and the Bible Two Norm-setting Standards of the Modern World E VA M A R I A L A S S E N Since 1948, when human rights were established as international law, religious traditions have increasingly come to play a role in the human rights world, at an international as well as a national level, and in human rights discourses as well as in practical strategies for implementation. At a similarly increasing pace, scholarly and non-scholarly attempts at creating an understanding of the relationship between human rights and religious traditions have seen the light of day, drawing attention to the profoundly ambivalent attitude embedded in religious traditions towards human rights. In this article I shall be concerned with the development of the interplay between human rights and religions from 1948 to today, particularly focusing on international human rights law and the Bible as two sources of modern Christian positions on human rights. First, the view of the international community on religious traditions in the area of human rights from 1948 to the present day is briefly outlined, as are responses of religious communities to the human rights movement in the same period. Then follows a comparison of some important Islamic and Christian positions on international human rights law, highlighting differences in religiously based perceptions of the relationship between international human rights law and religious norms. The article proceeds to look at the Bible as a source used by adherents of Christianity when they form their views on human rights. It is suggested that as a result of a confluence of interests between human rights discourses and modern biblical scholarship, the work of biblical scholars provides a useful tool of understanding the Bible in a human rights context.

Human rights and religious traditions. From 1948 until the present day The establishment and initial development of international human rights law largely took place independently from religious traditions. This is partly due to the fact that since international human rights law as a legal concept was novel in 1948, there had not yet been time to carry out substantive studies of the very complex relationship between religious traditions and international human rights law. In fact, it was partly the lack of thorough studies of the relationship between human rights and cultural traditions, combined with a lack of precise definitions of key concepts, which made it possible to subscribe to the view that all cultural traditions contributed to and were reflected in the principles of The Universal Declaration of Human Rights (as stated by Charles Malik when the Declaration was presented to the UN General Assembly in the autumn 1948.

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Glendon, 2001, 161). In addition, the religious institutions, for their part, had not yet had the sufficient time to reflect upon this relationship. In the 1980s and 1990s, UN institutions and other organisations concerned with human rights explored the possibility of involving religious traditions in the continuing implementation and development of the human rights concept. The reasons are obvious: First, in the process of implementing human rights in countries where state and religion are closely inter-linked, it is, to various degrees, necessary to embrace religious traditions. Second – and regardless of the exact link between state and religion in a particular country – religious institutions may, as part of civil society, communicate human rights to local communities. In the same period, a particular construction of the history of human rights came to play an important role in the efforts both to let human rights take root in specific cultural traditions and to find common grounds between different cultures in the area of human rights. In 1948, the international community to some degree promoted the idea of a collective ownership of human rights based on culturally rooted links between different cultures and human rights.1 But at this point, the prevailing construction of the history of human rights was that of a history with predominantly Western roots.2 In the 1980s and 1990s, the UN, other human rights institutions, and an increasing number of scholars endorsed the view that the core principles of human rights, as expressed in The Universal Declaration of Human Rights and other human rights documents, are closely linked to and profoundly inspired by the world’s different cultural and religious traditions. In the construction of a human rights history which accompanied this view, all religious traditions were seen as a fountain of inspiration, both with regard to the past history of human rights and with regard to the making of the human rights history yet to come. Illustrative is the following statement by Kofi Annan, the UN Secretary-General, who in 1997 visited Iran and in a speech delivered at the University of Tehran supported the idea of a universal history of human rights: “Human rights, properly understood and justly interpreted, are foreign to no culture and native to all nations. The principles enshrined in the Universal Declaration of Human Rights are deeply rooted in the history of humankind. They can be found in the teachings of all the world’s great cultural and religious traditions [...] Tolerance and mercy have always 1 An early example is the work carried out by the UNESCO. The UNESCO Committee on

the Theoretical Basis of Human Rights continued the work they had initiated in 1946, and the UNESCO organisation on the whole gave the study of the collective ownership of human rights high priority. In 1969 the organisation published “The Birthright of Man”, a collection of philosophical, religious, and legal texts from different cultures voicing support of human rights. The aim was to illustrate “how human beings everywhere, throughout the ages and all over the world, have asserted and claimed the birthright of man” (Hersch, 1969, preface). For other examples, see Glendon, 2001,73ff. 2 See e.g. Lauterpacht 1945 and 1950. Examples of later writers endorsing the same human rights history are Vincent 1986, and Iwe 1986.

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E VA M A R I A L A S S E N and in all cultures been ideals of government rule and human behaviour. Today, we call these values human rights.” (A statement by Secretary-General Kofi Annan on the fiftieth anniversary year of the Universal Declaration of Human Rights. 10 December 1997, the University of Tehran, Iran. Source: UN home page).

Representatives of the world religions have to a large extent contributed to the establishment and continuous endorsement of the view that human rights and religious traditions are interlinked and should grow together. Thus a growing number of leaders of the world religions see human rights as a concept, which they have to form an opinion on and which also in different ways plays an integrated role in the continuous development of their respective religions (e.g. Tergel, 1998, chapter 3-8). A growing support of the human rights principles, notably the notion of equal dignity of all human beings, is offered by religious institutions, many examples of which are found in, for instance, the three monotheistic religions Judaism, Christianity, and Islam.3 Also in the 1980s and 1990s, representatives of the different religions showed an interest in exploring what the world religions could do collectively and in dialogue to promote human rights: human rights constitute one of the areas within which different denominations and religions are likely to meet in ecumenical and inter-faith dialogue (Lassen, 2001,180ff).4 Villa Vicensio, who has studied the role of religion in the transition of South Africa from apartheid to democracy, offers an accurate description of the potentially liberating force of religion: “The amazing thing about religion is that it has the capacity to renew itself. Just when a particular religion seems to be an established part of a particular oppressive ideology, resources are discovered in that same religion that enables it to be renewed.” (Villa Vicensio, 1996, 531). The potentially oppressive force of religion is equally evident: human rights can be understood and interpreted in a religious context in such a way that human rights are opposed and their implementation hindered. The ambiguity vis-à-vis human rights embedded in religious traditions taken into consideration, it is not surprising that in the process of negotiating international and regional human 3 A recent contribution in this field is Kretzmer and Klein (eds), 2002. 4 The “global ethics” project is an example of this dialogue, cf e.g. “A Declaration

towards a Global Ethic”, authored by the Parliament of the World Religions in 1993. Küng & Küschel 1993, II,1. Another example of ecumenical initiatives as well as interreligious dialogues involving human rights is the projects carried out under the auspices of The Council of European Churches. The Council promotes dialogue between Christian churches and Judaism (for instance focusing on the fight against anti-Semitism), and between the Christian Churches and Islam (for instance involving the emphasise on freedom of religion and conscience). Together with the Catholic Church the Council endeavours to combat human rights violations, for instance violence against women. Source: www.cec-kek.org.


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rights documents it has often proven exceedingly difficult to reach agreement between, on the one hand, the UN (and other human rights endorsing institutions) and, on the other hand, the religious communities. The positive interaction between the human rights world and religious communities as well as the dialogue between religions in the area of human rights are slowed down by a complicated web of political, cultural and religious factors. One stumbling block is the fact that adherents of different religions do not unanimously accept international human rights law, as expressed in The Universal Declaration of Human Rights, as the norm-setting standard, according to which human rights should be identified and implemented. A comparison between important Islamic and Christian positions on international human rights law provides a clear illustration of this phenomenon.

An Islamic approach to international human rights law There exists a great diversity of views among Muslims with regard to international human rights law. In what follows I shall be concerned with the two most important Islamic declarations on human rights, namely The Universal Islamic Declaration of Human Rights of 1981 and The Cairo Declaration on Human Rights in Islam of 1990. Although both documents make use of the terminology of The Universal Declaration of Human Rights, they clearly expose a conflict between, on the one hand, a particular Islamic understanding of human rights and, on the other hand, universal human rights as expressed in international conventions. As accurately put by a legal scholar: “the overall message of UIDHR [The Universal Islamic Declaration of Human Rights] is that Islam can be pro human rights, but only to the extent that human rights are pro Islam.” (Brems, 2001, 258).5 The Preamble of The Cairo Declaration on Human Rights in Islam, adopted by the member states of The Organization of the Islamic Conference, states that human rights are embedded in Islam: “Believing that fundamental rights and universal freedoms in Islam are an integral part of the Islamic religion and that no one as a matter of principle has the right to suspend them in whole or in part or violate or ignore them in as much as they are binding divine commandments, which are contained in the Revealed Books of God and were sent through the last of His Prophets to complete the preceding divine messages thereby making their observance and act of worship and their neglect or violation an abominable sin, and accordingly every person is individually responsible – and the Ummah collectively responsible – for their safeguard.”

5 For a lucid, legal overview of Islamic approaches to human rights, see Brems, 2001,

183-194.

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Although the terminology used in The Cairo Declaration is that of international human rights law, international human rights law does not constitute a source of law in a number of areas considered in the document, and it follows from the understanding of human rights as integral to Islam that specific areas related to human rights (for instance the family, women’s rights, religious freedom, and property and inheritance rights) must be practised “in accordance with the provisions of Shari’ah” (cf. Brems, 2001, 260-64).6 A similar picture emerges to various degrees in authoritarian Muslim countries. Iran, a member of The Organization of the Islamic Conference, may serve as example. The constitution of Iran does not allow for a non-Islamic approach to human rights, and most of the rights found in the constitution are explicitly placed within an Islamic framework (this applies explicitly to a great number of individual rights, for instance women’s rights (Article 28), freedom of expression (Article 24), freedom of assembly (Article 29) and the right to form political and religious societies (Article 26)). The Islamic Human Rights Commission of Iran primarily focuses on what is defined as Islamic human rights. Thus the Charter of the Commission states that the Commission’s goal is to define, educate and promote human rights “from the Islamic point of view” (Article 5.1); to supervise “the manner and quality of enjoyment and observance of Islamic Human Rights, by the natural and legal entities.” (Article 5.2); and to designate and present “suitable and appropriate solutions for taking action and required position against the cases of violation of Islamic Human Rights, particularly those cases of violation of the human rights of Moslem people in all countries.” (Article 5.3). The Charter also, however, draws attention to the possibility of including international human rights law in the human rights discourse that takes place in Iran. In this way, international human rights law becomes a standard-setting foundation of human rights, but not the most important one.7

6 Cf the following general statements of the document: “All the rights and freedoms

stipulated in this Declaration are subject to the Islamic Shari’ah” (Article 24), and “The Islamic Shari’ah is the only source of reference for the explanation or clarification of any of the articles of this Declaration.” (Article 25). See also Brems: “the crucial element is the submission of all rights to the shari’a, by means of the general restriction clause of article 24 CDHRI [Cairo Declaration of Human Rights in Islam] and the general interpretation clause of article 25 CDHRI. Much more explicitly than is the case in the UIDHR [Universal Islamic Declaration of Human Rights], the CDHRI conveys the message that human rights are valid only to the extent that they do not affect Islamic rules.” (Brems, 2001, 266). 7 Cf: “From the viewpoint of theoretical aspects, the Commission is based on the Islamic human rights; this matter will not impede the Commission to proceed with attempts and activities in the field of international human rights.” (Article 2). More specifically, this should result in the Commission’s “cooperation with the national and international organizations on the matter of Human Rights, specially on the examination and pursuit of the cases relating to the Islamic Republic of Iran,” (Article 5.5) as well as “examination and scrutiny of the situation of Islamic Republic of Iran as to the international Covenants and Conventions on Human Rights.” (Article 5.6).


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A Christian approach to international human rights law Christian approaches to international human rights law differ radically from the Islamic approach described above. Generally speaking, Christian clergy and lay people as well as scholars working in the field of human rights and Christian traditions use international human rights law, as expressed in The Universal Declaration of Human Rights and later international documents, as their starting point when they articulate Christian positions on human rights. Regularly, Christian discourses contain the argument that the seeds of international human rights law were sown within the history of Christianity.8 A prominent example of this claim to a Christian genesis of international human rights is offered by Pope John Paul II, who has called The Universal Declaration of Human Rights, “one of the most valuable and significant documents in the history of law”,9 and who in a speech delivered to the European Court and Commission of Human Rights in 1979 stated the following: “… the human rights of which we are speaking draw their vigour and their effectiveness from a framework of values, the roots of which lie deep within the Christian heritage which has contributed so much to European culture. These founding values precede the positive law which gives them expression and of which they are the basis. They also precede the philosophical rationale that the various schools of thought are able to give to them.” (John Paul II: Address to the European Court and Commission of Human Rights, October 1979. Quoted from Filibeck, 1994, 41). Christian traditions and the history of international human rights are far from always considered so intimately related. Evidently, this is not the case with Christian opponents of the human rights notion, and also many supporters of human rights would not establish powerful historical links between Christianity and human rights. Regardless of historical perceptions, however, international human rights law (together with regional and domestic legislation which is in consistence with The Universal Declaration of Human Rights) constitutes the legal starting point of today’s discussions about human rights among Christians. In other words: Christian discourses rarely contain, unlike in the Muslim case, the view that conceptual divergences exist between two differently defined types 8 Sometimes this understanding includes biblical as well as Greek-Roman antiquity, as in

the following quotation by the Nobel Peace prize-winner and Catholic bishop, Carlos Belo of East Timor: “the Stoics… emphasised the dignity of all men. However, it was not until later, through the influence of Christianity, that the idea of the human dignity took root in our culture…The concept of the human dignity of every man was thus of divine (Trinitarian and Christological) origin in Judaeo-Christian thought, or of purely moral origin in lay philosophical thought.” Belo, 1998, 59. 9 John Paul II, Message to H.E. Mr. Didier Opertti Badàn, President of the 53rd Session of the United Nations General Assembly. Quoted from Pontifical Council for the Family. “The Family and Human Rights”. Source: www.vatican.va

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of human rights: religious – in this case Christian – human rights and international human rights. It is not with regard to definition but the understanding and interpretation of international human rights law that the Christian particularity sets in.

The churches’ influence on the future of human rights Although generally speaking Christians accept the identification and definition of human rights as laid down in The Universal Declaration of Human Rights, Christian norms are often in conflict with specific areas of international human rights law. The Vatican’s view on human rights may serve as example. Whereas protestant and other non-Catholic churches only to a limited degree speak with one, central authority on matters of human rights, the Roman Catholic Church has offered, by means of the work carried out by the Holy See, centrally and officially endorsed responses to the human rights agenda. At the beginning of the 21st century, the Vatican is particularly proactive in human rights discourses concerning the family. The Vatican has a comprehensive – and yet very simple – view of the relationship between traditional Catholic family values and human rights: the traditional family is the favourable and irreplaceable place for the recognition and development of a human being on its way to complete dignity, and the family is a precondition for the safeguard of basic human rights, including the rights of women and children.10 Human rights are not static. They develop and are further defined, and the Vatican is determined to influence this development. An example of this determination is the Vatican’s position on divorce. Human rights do not include the right to divorce and remarriage, but a number of leading human rights lawyers have argued that the prohibition on divorce might lead to human rights violations because of its implications, for instance concerning children’s legal status.11 To refute such arguments and to prevent the right to divorce from entering the human rights catalogue, the Vatican has produced very elaborate documents, arguing that divorce (unlike the case where a marriage is annulled by the Church) can never, in way, be part of a just human society.12 The Catholic Church is deeply divided over issues relating to the family and human rights. Reflecting the social reality of Europe and to an increasing degree 10 Illustrative of the Vatican’s position is a document produced by the Pontifical Council for

the Family, who on the occasion of the fiftieth anniversary of The Universal Declaration of Human Rights held a conference entitled “Human Rights and the Rights of the Family”. The document is a result of this conference. Source: www.vatican.va 11 For a concrete example where these implications are discussed, see the judgement of The European Court of Human Rights of 18 December 1986: Johnston and Others versus Ireland. (European Treaty Series A, number 112). 12 For recent expressions of this argument, see e.g. Pontifical Council for the Family, “Human Rights and the Rights of the Family”. 15 November 2000; Address of John Paul II to the prelate auditors, official and advocates of the Tribunals of the Roman Rota. 28 January 2002; Conclusions of the 15th Plenary Assembly of the Pontifical Council for the Family. 17-19 October 2002. Source: www.vatican.va


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that of other Western countries characterised by low birth rates and a high occurrence of divorce and remarriage, the position of a great number of priests and lay people is more flexible than that of the Vatican. The Catholic Church is not alone among Christian churches in being divided with regard to specific areas of human rights. Similar divisions can be found within practically all Christian denominations (e.g. Tergel, 1998, Part 2 and 3). A common characteristic of Christian attempts at communicating different views on human rights is the central position frequently held by the Christian Bible in these attempts.13

The Christian Bible and the modern democratic scene: a Danish example Biblical quotations are often used in a Christian setting when human rights issues are discussed. One of the most frequently quoted passages of the New Testament is Paul’s famous proclamation: “... There are no more distinctions between Jew and Greek, slave and free, male and female, but you are all one in Christ Jesus.” (Paul’s Letter to the Galatians 3:28-29). Paul’s words have been used as a rhetorical weapon against gender discrimination, slavery, apartheid, and more generally, racism (Lassen, 2001, 186f).14 It is far from self-evident, however, that the text supports the human rights principle of non-discrimination. What does it mean, for instance, that there is not man and woman? Does it mean that men and women are equal in the eyes of God? That they can hold the same positions in the congregation? That women should be treated on equal terms with men in society at large? A recent example of conflicting interpretations of Paul’s words is a debate that took place in the Danish Parliament concerning “Proposal for amendment of law of citizenship and immigration” (11 January 2002). Soren Krarup, a member of the Danish People’s Party and priest in the Lutheran state church, ‘Folkekirken’, suggested that when in the future the Parliament considered applicants for citizenship, it should give preference to Christian Europeans over others, and to Asian Christians over Asian Muslims. Other members of parliament took exception to this argument, among them another priest from Folkekirken and a MP for the Socialist People’s Party, Margrethe Auken. Referring to Paul’s Letter, she said:

13 The reestablishment of unity within the Catholic Church with regard to the family and

human rights, to refer to the example mentioned above, is unlikely to take place if the Vatican does not in the future in some way modify its position, and this endeavour would include not only a development of Canon law and moral doctrines but also new readings of the Bible. 14 The text was used in, for instance, the struggle against the South African apartheid, see Desmond Tutu, 1994, 64.


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“the slander of Christianity which we have been exposed to here is, – well, one cannot, as a Christian, be offended: considering that Our Lord was crucified, the rest of us should not complain because of a splinter in the finger. But I do think it appropriate to quote one of his foremost apostles, Paul, who says that there is no Jew or Greek, slave or free, man and women, for all are we one in Christ. And this is not just an abstract banality. It is the incarnated Lord’s words to all mullahs [Krarup] who come and intend to draw distinctions between human beings, and believe that some are more worthy of the truth than others.” Soren Krarup replied: “One in Christ means that there is no common, secular, political, social equality. And this is exactly where the theological fanatics are always mistaken: they have put the Christian equality in Christ and ordinary social and political equality on the same footing. From this misconception arise all, I’ll say almost all, the miseries of the history of the world. This is, for instance, the historical background of Marxism. The theoretical talk of equality rests on the fanatic worship of this misconception of Christianity”. Source: The website of the Danish Folketing, www.folketinget.dk. 11 January 2002. “Forslag til lov om ændring af indfødsretsloven og udlændingeloven.” (My translation). Aukens’s interpretation of Paul’s words is by Krarup seen as an outlet for Marxism and fanaticism. It is interesting to observe, however, that her reading is similar to that of a third theologian, also from the Danish church, the late Poul Hartling. A former prime minister and member of Venstre, a conservative liberal party, Hartling interpreted Paul’s words within the framework of a traditional Christian humanism: “All men are equal in the eyes of God. This is perhaps stated most clearly by Paul in the letter to the Galatians (3.28), ‘There is neither Jew nor Greek, there is neither bond nor free, there is neither male nor female.’ With fewer words than article 2 in the Declaration of Human Rights, Paul says something which may not sound particularly epochmaking today. But 1930 years ago when Paul wrote his letter, the words were exactly that…If we today regard it as quite natural to reject racism, to oppose slavery and demand equality between men and women, in short like the UN Declaration asserts that all human beings are born free and equal in dignity and rights, and that they are entitled to the human rights without any discrimination, then this can be said to be a result of the Pauline words and thoughts.” (Hartling, 1993, 29 f). It is notable, first, that the first two contributions were made in the parliamentary heart of modern democracy: an exegesis on the Bible and human rights is


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brought right into the centre of the political sphere. Second, the fact that so fundamentally different interpretations of a biblical text are fostered by theologians who all belong to the same and rather small Christian denomination – the Danish Lutheran Church – illustrates the extreme difficulty in using the Bible in modern human rights discourses. The question is whether this endeavour can be successful at all. As the different churches to various degrees include readings of biblical texts in their response to modern phenomena, including human rights, the answer to this question is crucial.

A scholarly confluence of interests Addressing the Bible from the point of view of human rights, it is necessary, it has been claimed, to develop a “hermeneutics of human rights”: “a method of interpreting sacred texts and traditions that is designed to recover and transplant those religious teachings and activities conducive to human rights.” (Witte 1996: XXI).15 In developing such a method, it is important to be aware of the danger of trying – consciously or inadvertently – to tame the Bible and to find in the text what has been phrased “the fallacy of immediate relevance” (Novak 1996: 177). The next question is therefore: how may we use the Bible in a human rights context without falling prey to this fallacy? A feasible way of approaching the Bible with questions of relevance to the modern concept of human rights while at the same time avoiding “the fallacy of immediate relevance” is to give meaning to the biblical texts within their historical context. This is where modern biblical exegesis and scholarship of ancient history come into the picture. In the 1940s and the next two decades, New Testament scholarship was profoundly affected by a number of historical phenomena which also influenced the emerging international human rights law, amongst them the European Holocaust and the decline of Western colonialism. Thus in the aftermath of the Holocaust, anti-Jewish interpretations of the Bible gave way to an exegesis increasingly willing to acknowledge the intrinsic Jewishness of Jesus, and to enter into a Jewish-Christian dialogue. Moreover, parallel to the de-colonization of the nonWestern world, many churches redefined the Christian mission, and an increased Christian involvement in dialogue with other Christian denominations as well as other religions could be witnessed. Gradually, respect for religious diversity became a key notion on the agenda of many churches – as it is within the human rights world (Lassen, 2001,185). The common denominators of the human rights world and biblical scholarship do not stop here. Generally speaking, many of the debates carried out within the human rights world and within religious institutions have developed in a way which resembles the path taken by a great number of biblical scholars. Examples of this confluence of interests are numerous. One example is the notion of cultural diversity. The last decade has produced an extensive scholar 15 For the literature about a hermeneutic of human rights, see Witte 1996, XXI, n. 16.


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ship concerned with cultural diversity within the framework of the Hebrew Bible and the New Testament (e.g. Brett 1997, Boyarin 1994). Other examples are studies on gender and family, topics which hold a prominent position in modern biblical scholarship, and which have raised questions similar to those raised in the human rights sphere; feminist theology, to take an example, has become an important part of biblical exegesis and has given birth to new theologies focusing on, for instance, gender equality. Yet other studies are concerned with the organisation of the early Christian communities; these studies are inspired by questions asked in modern democracies, for instance the right to participate in decision-making bodies, the legal position of minorities, and the attitude to forced labour. It is characteristic of studies such as the above that they frequently focus on the historical context of the Bible, particularly from the point of view of social and economic history; here the work of theologians has been substantiated by the work of ancient historians, who in large numbers have become involved in biblical studies.16 If we return to Paul’s Letter to the Galathians 3,26-28, we see that the groups of individuals mentioned in these verses – Greeks and Jews, men and women, free and slaves – as well as the relationship between them have been thoroughly investigated by biblical scholars in recent years. Extensive studies cast light on the immense complexity of St Paul’s world, and make attempts at creating superficial links between this world and modern human rights very difficult to sustain. Making use of modern biblical scholarship in the endeavour to establish links between biblical theology and human rights may therefore diminish the danger of falling prey to “the fallacy of immediate relevance”, while at the same time paving the way for understanding the biblical world in the context of modern human rights.

Conclusion The interrelationship between religion and human rights is particularly important in countries where religion and state are closely interlinked, but elsewhere as well religious institutions as part of civil society may play a crucial role in the process of implementing human rights; reversely, religious communities as well as religious values embedded in a given society may hinder the implementation of human rights. The international community as well as regional and national human rights institutions have acknowledged the important role played by religious communities in the process of promoting human rights universally. So have adherents of the different religions who can hardly avoid formulating a position on human

16 To take an example, many Roman historians have recently explored the historical context

of the New Testament, including ancient Judaism and early Christianity in the history of the Roman Empire. E.g. Brown, 1988 and Hopkins, 1999.


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rights, and who often seek to develop the religious traditions in question within the new pluralistic world order, of which the human rights agenda is a part. Representatives of the world religions approach the notion of human rights differently, noticeably with regard to the identification of human rights. In this article I have been concerned with Christian traditions in particular. Generally speaking, Christians do not have a problem with accepting international human rights law as a norm-setting standard, within which framework human rights are discussed, and some even see international human rights as firmly rooted in the history of Christianity. However, when more specific areas of human rights catalogue is to debate they entertain vastly different views. The Christian traditions are made up of a large number of components. One of these components, shared by the different Christian denominations, is the Bible, the reading of which is frequently included in the churches’ debates about human rights. Obviously, it is immensely problematic to link the ancient value system of the biblical world with modern human rights norms. In this article I have suggested that a substantial part of modern biblical scholarship may serve as a particularly useful tool in this endeavour. Not only has biblical scholarship been influenced by the same phenomena which have influenced the human rights world (notably the European Holocaust and the decolonisation of the nonWestern world). In addition, an important part of modern biblical scholarship focuses on the economic and social history of the biblical world, and new areas of exegesis evolve around questions of paramount importance to modern human rights, for instance women’s rights, ethnicity, religious tolerance, minorities, and freedom. As a result, modern biblical scholarship may place Christian positions on the relationship between human rights and biblical traditions on firmer grounds.

References Belo, C. F.X., “The Dignity of the Individual”, in van de Heijden, B. & Tahzib-lie, B. (ed.), Reflections on the Universal Declaration of Human Rights. A Fiftieth Anniversary Anthology. Martinus Nijhoft Publishers. The Hague/Boston/London 1998: 59-63. Boyarin, D., A Radical Jew: Paul and the Politics of Identity, University of California Press, Berkeley 1994. Brems, E., Human Rights: Universality and Diversity, Martin Nijhoff Publishers, The Hague, Boston, London 2001. Brett, M.G., Ethnicity and the Bible, E.J. Brill, Leiden, New York, Köln 1996. Brown, P., The Body and Society: Men, Women and Sexual Renunciation in Early Christianity, Columbia University Press, New York 1988. Cmiel, K., “The Emergence of Human Rights Politics in the United States”, The Journal of American History, December 1999: 1231-1250. Evans, R.A. & Frazer Evans, A., Human Rights. A Dialogue between the First and Third Worlds, Orbis Books, New York 1983.

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Filibeck, G., (ed.), Human Rights in the Teaching of the Church: from John XXIII to John Paul II, Vatican City, Libreria Deitrice Vaticana 1994. Glendon, M.A., A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, Random House, New York 2001. Hartling, P., “The Christian Basis of Humanism”, in Kjaerum, M. a. o. (Eds) NGOs and Refugees. Reflections at the Turn of the Century, The Danish Centre for Human Rights. Copenhagen 1993: 27-32. Hastrup, K. (ed.), Other Histories, Routledge, London 1992. Hersch, J. (ed.), Birthright of Man: a Selection of Texts, UNESCO, Paris 1969. Hopkins, K., A World Full of Gods: Pagans, Jews and Christians in the Roman Empire, Weidenfeld & Nicolson, London 1999. Iwe, N., The History and Contents of Human Rights. A Study of the History and Interpretations of Human Rights, Peter Lang, N.Y., Berne, Frankfurt am Main 1986. Kretzmer, D. and Klein, E. (eds), The Concept of Human Dignity in Human Rights Discourse, Kluwer Law International, The Hague/London/New York 2002. Küng, H. and Küschel, K.J. (eds), A Global Ethic. The Declaration of the Parliament of the World Religions, Continuum, London/New York 1993. Lassen, E.M., “World Religions, World Values: In Dialogue with the Bible”, in Hastrup, K. (ed.), Human Rights on Common Grounds: The Quest for Universality, Kluwer Law International, The Hague/London/New York 2001: 177-194. Lauterpacht, H., The International Bill of the Rights of Man, Columbia University Press. New York 1945. Lauterpacht, H. (1950), International Law and Human Rights, American Jewish Committee, Stevens and Sons Limited, London 1950. Lauren, P.G., The Evolution of International Human Rights. Visions Seen. University of Pennsylvania Press, Philadelphia, Penn. 1998. Mayer, A.E., Islam and Human Rights, Pinter Publishers, London 1991. Novak, D., “Religious Human Rights in Judaic Texts”, in J. Witte and J. van der Vyer (eds), Religious Human Rights in Global Perspective, Martin Nijhoff Publishers, Vol. 1 The Hague/Boston/London 1996: 175-202. Shestack, J.J., “The Jurisprudence of Human Rights”, in Th. Meron (ed.), Human Rights in International Law: Legal and Policy Issues. Vol. I-II, Clarendon Press, Oxford 1984: 69-82. Sugirtharajah, R.S. (ed.), “Postcolonial Perspectives on the New Testament and Its Interpretation”, Journal for the Study of the New Testament, 1999: 73. Tergel, A., Human Rights in Cultural and Religious Traditions, Acta Universitatis Upsaliensis, Uppsala 1998. Tutu, D., The Rainbow People of God, Doubleday, London et al.1994. Villa-Vicencio, C., “Identity, Difference and Belonging: Religious and Cultural Rights”, in J. Witte and J. van der Vyer, (eds), Religious Human Rights in Global Perspective,: Martin Nijhoff Publishers, Vol. 2, The Hague/Boston/London 1996: 517-538.


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Vincent, R., Human Rights and International Relations, Cambridge University Press, Cambridge 1986. Witte, J. “Introduction”, in J. Witte and J. van der Vyer, J.D., Religious Human Rights in Global Perspective, Vol 1, Martin Nijhoff Publishers, The Hague/Boston/London 1996.

Further Reading Alston, Ph. & Steiner, H.J., International Human Rights in Context. Law, Politics, Morals, Oxford University Press, Oxford 2000. Huber, W., “Human Rights and Biblical Legal Thought”, in J. Witte and J. van der Vyer (eds), Religious Human Rights in Global Perspective, Vol. 1, Martin Nijhoff Publishers, The Hague/Boston/London 1996: 47-64. Ishay, M.R. (ed.), The Human Rights Reader: Major Political Writings, Essays, Speeches, and Documents from the Bible to the Present, Routledge, London 1997. Johnson Everett, W., “Human Rights in the Church”, in J. Witte, and J. van der Vyer (eds), Religious Human Rights in Global Perspective, Vol. 1, Martin Nijhoff Publishers, The Hague, Boston, London 1996: 121-142. Villa-Vicencio, C., A Theology of Reconstruction. Nation-Building and Human Rights, Cambridge University Press, Cambridge 1992.

Human Rights and Christianity A Lutheran Perspective1 SVEND ANDERSEN When it comes to democracy and liberalism, the Lutheran tradition of Christianity

has a mixed reputation. It is a widespread view that Lutheranism can be equated with submissiveness to authority. But there are also voices to the effect that, in placing the individual in direct relation to God, Luther himself protected her against the state. In view of this ambiguity it should not surprise us that there are very different standpoints on human rights within contemporary Lutheranism. In Denmark there is a remarkably strong hostility against the idea of human rights. We hear that human rights grew out of Renaissance and Enlightenment humanism or the worship of humanity. According to this position, Luther himself anticipated the fight against human rights: “on behalf of Christianity the reformer himself rejected this superstitious faith in human nature and human justice.” Human rights are seen as demanding human justice, and human justice is interpreted as selfrighteousness. Hence the UN Declaration of 1948 manifests human beings’ putting themselves in the place of God.2 If we are to assess this Lutheran critique of human rights, I think we need a number of distinctions. Concerning human rights we have to distinguish − historically between the declarations of human rights in the 18th century and those of the 20th century. − conceptually between the very idea of universal and inalienable rights, and the legal institutionalising of this idea. − legally between types of rights, e.g. between political and social rights. As to Lutheranism, we need to distinguish between − the main ideas in Luther’s own interpretation of Christian belief, and − the historical development of European Lutheranism with its close relationship between church and state. My presentation will proceed in three steps. First, I will present the basic elements in Luther’s own political ethics. Then I will mention a Danish Lutheran ethics published shortly after the adoption of the free constitution. And finally I will indicate what a contemporary Lutheran social ethics could look like, and how it would relate to human rights.

1 I want to thank my collegue George Pattison for having improved the English of my text. 2 This position is taken by the Danish Lutheran pastor Søren Krarup who is also a member

of parliament representing the Danish People’s Party, see Krarup 2000.

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Martin Luther Luther himself did not of course comment on human rights, but he did deal with the complex of problems within which the concept of human rights is placed: the relationship between, on the one hand, Christian religion and its ethics, and, on the other hand, the social and political world. In his book on worldly authority Luther takes a concrete point of departure: should a Christian show unqualified obedience to authority? Can a prince, a political ruler, be a Christian? Luther seeks the answer in the Bible. He does not regard this as a collection of eternally-valid prescriptions. He does regard the Bible as the word of God, but it is also a text in need of interpretation. One of the reasons for this is that it contains seeming contradictions. Thus on the one hand we read: “resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also” – on the other hand the Bible emphasises the necessity of punishing crimes such as murder. Luther solves this seeming conflict through a number of distinctions, the most important and controversial of which is that between the two kingdoms: the spiritual and the worldly. According to Luther the commandment of neighbour love is a religious prescription in so far as it presupposes faith in Christ. Luther describes this faith as the receiving of justice. Faith is the acceptance of the benefits inherent in Jesus’ life and death. If a human being accepts these, he or she is thereby justified before God. This means that human actions are freed from the function of bringing to order the relation to God. Neighbour love does not serve a religious purpose. But neighbour love is a necessary consequence of religious faith. Neighbour love contains two essential elements: it manifests itself both in beneficent or altruistic acting, and in self-sacrifice. But how can neighbour love be practised in this world? This is the question that leads to Luther’s distinction between the two kingdoms. The good news about Jesus’ fate as God’s justifying act – the Gospel – belongs according to Luther to the spiritual sphere. This means that in this context God alone acts or reigns, without the involvement of human power. The communication of the Gospel has to be a ‘non-dominatory discourse’. The acceptance of the Gospel can only be free and voluntary. Power and coercion do not belong to religious communication. This is also true in cases of heresy. In a Lutheran context, therefore, the concept of a holy war or religious war does not make sense. A genuine Christian community can come into existence around the acceptance of the Gospel. It would be free of dominion. In it, all would be equal since it would not be necessary to exercise power. Such a community would be constituted by the Gospel alone. However, according to Luther, such an evangelical community is an absolute exception, even in a society with Christianity as the dominant religion. This is because common life is marked by the evil and destruction that are a consequence of human sin. This kind of common life takes place in the world. But even if it is marked by sin the world is not deprived of divine action. Only God’s action here has a different character: it is a worldly kingdom. God’s kingdom here makes use of human power with the aim of suppressing destruction so that human life can

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proceed as peacefully as possible. The worldly life is profane, it is the life of marriage and family, of business and politics. It is a crucial claim of Luther’s that this profane life is not of less value than the so-called religious life. Profane life is the life God has created. In connection with worldly life Luther uses the problematic concept ‘orders of creation’. He means by this that such fixed structures of human life as heterosexual and monogamous marriage, and the hierarchical relation between authority and subjects. These structures, Luther thinks, are established by God in order to sustain created human life. I now want to claim that Luther’s distinction between the two kingdoms does not mean that the worldly is without any connection to Christianity. It is true that he says that the world cannot be ruled by the Gospel. But that merely means that the worldly sphere cannot be free of domination in the same way as the genuinely Christian community is. Luther does not say, that the world cannot be ruled by neighbour love. On the contrary, his book on worldly authority is an instruction of a Christian prince how to rule on the basis of neighbour love. But how is it possible to combine Christian neighbour love and the exercise of political power? In order to understand this one has to notice that Luther distinguishes between two kinds of neighbour love as part of his doctrine of the two kingdoms. Neighbour love has the character of self-sacrifice or turning the other cheek, i.e. renunciation of power in cases where a Christian acts in his/her own affaires, privately. But a Christian does not only lead a private life. A Christian is qua Christian obliged to take part in worldly life and this is also a public life. In this context Christian neighbour life has a different face, the face of beneficence, of acting in order to benefit fellow human beings. According to Luther, then, there is also a public aspect to neighbour love. And here neighbour love is not marked by renunciation of power, on the contrary use of power is necessary. The German theologian Ernst Troeltsch rightly spoke of a duplicity of morality in Luther, and he uses the expressions ‘ethics of person’ and ‘ethics of office’. An example of official ethics is the ethics practised by a prince, e.g. when he is engaged in just war. According to Luther, such a war can be an expression of Christian neighbour love, because it aims at benefiting the whole people. This kind of neighbour love involves the use of reason and calculation. Hence we could call the official ethics ‘organizing neighbour love’. Official ethics also covers the Christian prince’s functioning as judge. Here, he practices the law of love, i.e. the law based upon Christian neighbour love. Interestingly, Luther considers the situation where a judgement has to be delivered in relation to parties who do not accept the Christian law of love. In this situation the prince is to say: “that they act against God and natural law, even if they enforce human law strictly. For nature teaches the way love acts: that I shall do as I want others to do to me.” (Luther, Von weltlicher Obrigkeit, 279). Thus Luther refers to natural law in his reflection on the situation where a Christian prince has to judge non-Christians. This too shows that the doctrine of


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the two kingdoms does not aim at separating religion and politics completely. Rather it is also a theory about how to act politically as a Christian in a society comprising also non-Christians. Luther’s version of natural right implies that in such a society a consensus is possible in the sphere of law: the law of love and the law of nature have different sources, but they still accord with each other. When it comes to religion – the individual’s faith – the doctrine of the two kingdoms implies a clear restriction of political authority. The latter has absolutely no right to exercise coercion in questions of faith, because these belong to the spiritual. Luther does not defend the individual’s right to believe whatever he/she wants. Rather he asks the political authority to respect the domain in which God is the actor. In summary then, we can say that, according to Luther, Christianity is related to politics in so far as the individual Christian uses political power on the basis of the official ethics of neighbour love. Luther regards socio-political structures as God-given orders that are stable and outside of human constructive co-operation. And he regards the Christian community, in contrast to profane society as both power-free and marked by equality and freedom. He seems to presuppose that these two – freedom of power, and freedom/ equality are necessarily connected. In other words he precludes that freedom can consist in participation in power, to use an expression of K.E. Løgstrup. Historical development has in a number of ways falsified Luther’s presuppositions: socio-political structures are not stable, they are open to human constructive efforts, power is not only exercised by individual persons but also through institutions, and it is possible to shape social order on the conditions of freedom and equality. If we take this development into account the question is: What does a Lutheran ethics look like in face of these changes? As part of my answer I will now present a Lutheran ethics formulated in the 1870s, i.e. after the adoption of a free Danish constitution in 1849.

Christian Ethics and Human Rights in H.L. Martensen The author was Hans Lassen Martensen, previously professor of theology at the University of Copenhagen, and at the time bishop of Seeland and court chaplan. In Martensen the spiritual and the worldly are called God’s kingdom and the kingdom of humanity respectively. Human being in the latter is not radically different from human being in God’s kingdom: in both cases it is the selfconscious, free and autonomous person. Martensen does not reject humanism. On the contrary, he regards it as a consequence of Christianity, in particular of Protestantism. The ethics of Protestantism is “a life of freedom and love of God’s grace”. It involves both freedom and equality. In sum, the principle of the Reformation can be formulated thus: “From the infinite value of the person before God, from the concept of the person who is free in God springs the demand that the person has rights in the worldly sphere, of civil and political freedom, freedom of religion,

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SVEND ANDERSEN freedom of research etc., and particularly the demand, that no human being should be a mere mean for others.” (Martensen 1874, 45).

As the terminology shows, Martensen tries to combine Luther and Kant. Interestingly, Martensen regards the principle of reformation as the truth of the doctrine of human rights that he knows from Rousseau and other thinkers of modernity. He sees Christianity as a liberation for human rights. He describes the connection in the following way: “Human rights are innate rights given together with the dignity of a human being as a being created in the image of God. As a member of society everybody can claim that society protects him against the violation of his human dignity ... and that, as far as possible, it supports him in developing his personality into a dignified existence.” (Martensen 1878, 239). Thus, human rights are the foundation of a basic social equality. On this point Martensen rejects Luther’s belief that equality is not possible in the worldly sphere. More specifically, Martensen regards human rights as the foundation of equal rights for protection. However, equal political rights do not follow from human rights. As I said, Martensen accepts humanism, but not non-religious humanism. He wants to combine human autonomy with theonomy. Accordingly he defends a Christian state, i.e. a state based on Christian ethics, and a state that supports the Christian People’s Church as the Danish constitution has it. However, the state has to guarantee freedom of religion. That again is a requirement of Christianity itself with its idea of the right of the person, and free self-determination in questions of conscience and salvation. However, freedom of religion in Martensen is a question of tolerance, not religious indifferentism. In particular, he regards the Jews as a serious problem. They do not deserve the same rights as “the children of the land”. In summary, we have seen that the essence of the idea of human rights in Martensen is the dignity humans possess due to their being before God, i.e. being the image of God. His endorsement of human rights is explicitly grounded in the Lutheran principle of freedom. But his defence of human rights is connected with a revision of Luther’s ethics on two points: (i) as we have seen, Martensen does not share the claim that humans can only live as free and equal in the spiritual sphere, in an evangelical community; (ii) he has left the static view contained in the concept of orders of creation: what is God-given is the very foundation of social life, but it is up to humans themselves to raise the social building. Finally the theological justification of human rights in Martensen presupposes the idea of the Christian state. He does not think that the state and its founding principles can stand on their own.


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Contemporary Lutheran Ethics Since the time of Martensen’s Christian Ethics important changes have taken place. Democracy has been further developed so that it now also means equal political participation. And it is questionable whether Denmark can be called a Christian state. So the question now is: can there be a connection between Christianity and politics, if the state is no longer Christian but rather a religiously neutral state? In order to understand a modern society marked by pluralism and being part of a global context, theology needs to consult political philosophy. Without further justification I will claim that the most appropriate and convincing theory in this respect is American philosopher John Rawls’ so-called political liberalism. Rawls sees the political from the standpoint of social contract theory, i.e.: the political order is not God-given, but a result of human effort. In a liberal democracy the political is a co-operation of free and equal persons, who on the one hand act out of their own interest, but on the other hand have a sense of justice, i.e. are prepared to co-operate on fair terms. These two ways of acting are both founded in reason, but of different kinds that Rawls names rationality and reasonableness respectively. Political co-operation involves the exercise of power by humans over humans. This power is only legitimate if it accords with principles of justice, on which all agree. As is well-known, there are two principles of justice according to Rawls: (i) equal rights of liberty; (ii) inequality in the distribution of basic goods is only acceptable if is to the advantage of all. It is essential to the principles of justice that they are not metaphysical, but (merely) political. This means that the principles only regulate the interaction of people on the political level, and the political is distinguished from peoples’ life as led by religions or other world views. These latter Rawls calls comprehensive doctrines. In a democratic state there is an overlapping consensus about the principles, which means that different religions and non-religious doctrines can support the same principles, but for different reasons. The political consensus is connected with a public reason, which is so to speak a religion-free zone. In one of his latest books Rawls has extended the theory of political liberalism so that it covers what he calls the community of peoples. As this community also counts non-democratic states as members, it is not marked by a consensus on the principles of justice, but only by a consensus on what Rawls calls the law of peoples and part of the content of this law are some of the human rights. I now want to close my presentation with two questions: What is the relationship between political liberalism and Lutheran social ethics? And could we construe the justification of human rights in a way analogously to Rawls’ theory of the two principles, i.e. from the idea of an overlapping consensus? As to the first question: I want to claim that political liberalism fits a doctrine of the two kingdoms that takes contemporary political realities such as democracy into account. The duality of Christian neighbour love implies that official ethics motivates a reflection upon which political-ethical principles in the best way benefit the neighbour understood as the fellow citizen. Also, Luther’s understanding of the accordance between Christian neighbour love and natural law matches Rawls’ concept of an overlapping consensus.

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As to the second question: is it possible to make sense of the concept of rights with which humans are born, from a Lutheran perspective – even when we remember Bentham’s verdict that natural rights are “nonsense upon stilts”? I would interpret the concept of innate rights as meaning that seen from the point of view of the state and its legal order there are rights that simply must be recognised, that are not attributed by the state and are not at its disposal. From my theological point of view I would regard human rights as principles belonging to the political, on which there is an overlapping consensus. They do not need a religious foundation. But from the point of view of my comprehensive doctrine, Lutheranism, they do have a religious foundation in at least two ways. (i) Basic universal rights express equal human dignity, and this is founded in every human person being created in the image of God. (ii) Neighbour love in the sense of official ethics, organizing love, is a strong motivation for a Christian to engage in the effort of establishing a political and legal order in which all persons have equal basic rights. This in no way contradicts the fact that if there are rights, there are also obligations. My final word is that Lutherans, perhaps Danish Lutherans in particular, have to realise that it is quite possible to live in a state that is not Christian. That is: we need to see our religion as one comprehensive doctrine among others, but exactly as Lutherans we at the same time see ourselves as citizens affirming the consensus on which our society is based. And part of the content of this consensus are human rights.

References Krarup, S., Dansen om menneskerettighederne, København 2000. Luther, M., Von weltlicher Obrigkeit. Wie weit man ihr Gehorsam schuldig sei. Weimarer Ausgabe, Bd. 11. Martensen, H.L., Den christelige Ethik I, København 1874. Martensen, H.L., Den christelige Ethik II, 2, København 1878. Rawls, John, Political Liberalism, New York 1993. Rawls, John, The Law of the Peoples, Cambridge Mass., London 1999.

Islamic Legitimation of Democracy and Human Rights: Some Trends and Tendencies in the Muslim Debate JAN HJÄRPE During the past ten years we have noticed several Muslim ideologists and movements that explicitly, although in different ways and with different content, have formulated demands for democracy, legitimation of political power by popular mandate, Human rights and liberties in the sense expressed in the UN’s Declaration of 1948 and in other international conventions. This is done with emphatic assurance that these values are compatible with Islam and Islamic Law, or even that these are the true expression of Islam and the Sharî’a, properly understood. The sources and the norm systems of the religion are thus interpreted in ways differing as well from the traditional schools and methods of Islamic jurisprudence as from the ‘Islam’, or ‘Islamic order of society’, as interpreted and propagated by the so called islamist movements (Muslim Brotherhood, an-Nahda, FIS, JIM, Jamaat-i Islami etc.) and their ideological view of religion and its role in the state, including the judiciary. Among the participants in the debate, pleading for Human rights and liberties, and for reinterpretations of the legal sources, the Qur’an and the Sunna of the Prophet, are the well-known Tunisian historian Mohammed Talbi,1 known also for his engagement in interreligious dialogue, the Sudanese lawyer and philosopher of jurisprudence, Abdullahi an-Na’im,2 deeply influenced in his views on Islamic Law and the interpretation and applicability of its sources by Mahmud Muhammad Taha (who was hanged as a heretic in 1985).3 We find some of the leading ideologists in Indonesia, among them Amien Rais, now speaker of the Parliament, and Nurcholish Madjid.4

1 As for Talbis more recent engagement for human rights and democracy, see for instance

Le Monde, March 5th; cf. his Plaidoyer pour un islam moderne (Cérès/Desclée de Brouwer, Tunis/Paris 1998). 2 For a profound analysis of an-Na’ims reasoning, see Jonas Svensson, Women’s Human Rights and Islam. A Study of Three Attempts at Accommodation (Lund Studies in History of Religions Vol. 12, 2000), pp. 161-202. 3 Taha’s Risâlat ath-thâniya li-l-islâm has been translated into Norwegian and into English, and he has deeply influenced the movement called ‘the republicans’ (al-jumhûriyyûn) in Sudan. 4 Cf. Robert W. Hefner, Civil Islam, Muslims and Democratization in Indonesia (Princeton University Press, 2000). See also Greg. Barton, The Emergence of Neo-Modernism; a Progressive, Liberal Movement of Islamic Thought in Indonesia: A Textual Study Examining the Writings of Nurcholish Madjid, Djohan Effendi, Ahmad Wahib and Abdurrahman Wahid 1968-1980 (Monash University, 1995).

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For the Iranian students, in 1999 and 2000 demonstrating against the present order of the ‘Islamic Republic’ and very insistingly demanding democratic reforms, free speech and other liberties, the inspiring authority is Abdolkarim Soroush,5 whose importance as proponent of new hermeneutics and reinterpretations of Islamic Law we have become very much aware of recently. We can mention too the pleas for democracy and Human rights from the Pakistani ‘futurologist’ Munawar Anees.6 We could mention several others, and we could notice especially those Muslim feminists participating in the international debate on women’s rights, who with arguments related to the sources of Islamic Law, with new hermeneutical approaches, argue against the patriarchal structures of traditional Muslim societies and against the traditional applications of Islamic personal law. We have there not only well established participants since considerable time, as Fatima Mernissi, but also more fundamentally religious thinkers as Riffat Hassan and Amina Wadud Mohsin.7 Our news media have during the three last decades of the 20th century focused on the different forms of Islamism, of religious-political movements connected with organisations as mentioned above, not to mention the more extreme Taliban movement of Afghanistan. This concentration of the media interest on religio-political Islamism has had the consequence that other entities, trends and movements in the Muslim world and in Muslim intellectual debate have been neglected. They have not been perceived and taken into account in the same degree.8 Mohammed Arkoun is perhaps the most well-known among those who have criticized the so called ‘fundamentalism’ with a deep philosophically and theologically founded argumentation. But there are others too.9 For obvious reasons, conflicts and militancy are of a greater interest for the daily media. In his book, Jihad, expansion et déclin de l’islamisme (Gallimard 2000), the French specialist on political islamism, Gilles Kepel, divides the development of these movements into three periods. His main thesis is that the time when the religio-political islamism in more or less militant forms dominated the outlook and the debate on the Muslim world roughly coincides with the last quarter of the 20th century. These islamist movements are now on decline. Simultane5 Cf. the doctoral thesis by Ashk Dahlén, Deciphering the Meaning of Revealed Law, The

Surûshian Paradigm in Shi’i Epistemology (Uppsala 2001). 6 Cf. his burning plead for a new attitude in the Muslim world and Islamic thinking, ‘The

Future of Islam: Tie up Your Camel’, in: Journal of Futures Studies, Vol. 4, Nr 2, May 2000, pp. 131-134. See also Gilles Kepel, Jihad; Expansion et déclin de l’islamisme (Gallimard 2000), pp. 92, 353. 7 Cf. Jonas Svensson, op. cit., p. 67 ff. 8 There have been, however, some studies earlier on the Muslim critique of the Islamism (‘fundamentalism’), cf. J. Hjärpe, ‘Den inomislamiska debattens kritik av fundamentalismen’, in: Det levende Ordet. Festskrift til professor, dr. theol. Åge Holter på hans syttiårsdag (Universitetsforlaget, Oslo, 1989), pp.173-184. 9 Cf. the special issue of the Moroccan magazine Muqaddimât/Prologues Nr. 10, Été 1997: subul tajdîd al-fikr al-’arabî al-islâmî al-mu’âsir/Voies de rénovation dans la pensée arabo-islamique contemporaine. The authors treated in this special issue are Mohamed Arkoun, Hicham Djaït, Hassan Hanafi, Mohamed Abed Jabri, Fazlur-Rahman, Abdulkarim Soroush, Mahmud Muhammad Taha and Mohamed Talbi.

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ously, this was the time when the nationalist ideas had failed. Instead of nationalistic movements, and islamism, we can now see an endeavour to work for (and create the concept of) ‘Islamic democracy’. The first period, he says, was from 1973 to 1979, that is from the so called ‘oil crisis’ to the Iranian Shi’i Islamist revolution. Different groups in the Muslim world expressed then frequently their social and political frustration in a religious terminology. During the second period, from 1980 to 1989, the phenomenon of Islamism (or Islamic ‘fundamentalism’ as it was often called with a less appropriate term) dominated the debate, in the whole world, the debate on Islam and Islam’s political role. But during this same period the contradictory character of the phenomenon became more and more evident. A common trait in the discourse of the Islamist movements was the idea of the ‘Madina state’, the Utopia projected to the history of the Prophet, presented as an alternative to corrupt regimes, failed economies, repression and misery. That metaphor had a certain appeal for the marginalized groups in different societies. Different interest, locally and globally, tried to exploit the phenomenon and make use of the movements. This was especially evident in the case of the struggle for influence between the ‘wahhabi’ Saudi Arabia and the Islamic-revolutionary Iran. The frontiers between the tharwa Islamism (the ‘wealthy’ one, supported by Saudi Arabia) and thawra Islamism (the ‘revolutionary’ one, supported at that time by Teheran) became very visible in connection with the Pilgrimage to Makka. The USA tried, not without success, to use the movements and channel the Sunni militant Islamism against the Soviet presence in Afghanistan. The Islamist movements, says Kepel, peaked in 1989: The Palestinian intifâda going on, the Islamist Hamas movement was born, FIS was created in Algeria, the Islamist ideologist Hasan at-Turabi got a key role in Sudan, and Khomeini issued his fatwâ against the author Salman Rushdie which in a way gave Iran back the political initiative in world politics. 1989 is also the year of the fall of the Berlin wall, the collapse of the Soviet Union. The republics of Central Asia and Caucasus became in a new way visible as a part of the Muslim world; the same holds true as to the Muslim presence on Balkan. The development was regarded as a victory for Islamism; the movements had toppled a superpower. 1989 was the peak; abut also the beginning of the decline. The third period, 1990-2000, proved the dysfunction of violence.10 The violence connected with certain of the islamist movements and groups has provoked disgust and fear, and the same is the case with the extremist policy of the Taliban in Afghanistan, the murders committed by the GIA in Algeria, the terror actions by extremist groups in Egypt (against tourist and against authors). The attempted murder of Naguib Mahfouz shocked people. The affair of the professor of literature Nasr Abu Zayd and his forced divorce from his wife, argued for by religious authorities, revolted the intellectuals and discredited also the more moderate islamism in Egypt. The violence frightened the ‘pious middle classes’. 10 Cf. J. Hjärpe, ‘Våldets dysfunktion för det religio-politiska språkets användbarhet’, in:

Svensk religionshistorisk årsskrift 1996, pp. 81-92.

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They can not recognize such violence as connected with their Islam. 1990 is the year of the Iraki invasion of Kuwait, and Saddam Husayn could use the impopularity of the petro-monarchies in his propaganda. The support from the USA for those monarchies meant that from now on the ‘Afghans’ and ‘Jihadists’ directed their struggle against the USA, already detested due to the sole remaining superpower’s manifest partiality in the Israeli-Palestinian conflict. Saudi Arabia lost all its credibility in the eyes of the movements as the regime became dependent on the military support from the USA and from England. The social conservatism of the Saudian regime had already earlier been a problem for the Islamist movements. From 1995 the decline of the religio-political Islamism is quite evident. In Iran Mohammad Khatami was elected president in 1997, as a symbol of the will to reform. In 1999 and 2000 we have seen the struggle of the parliamentary majority for the freedom of speech and for a free press (against the established and institutionalized power of the religious leadership), and a demand for religious freedom and not compulsion. Also here we can see the alternatives emerging in the debate, ‘Islamic democracy’, Muslim secularism, a new interest in the question of how to define and promote Human rights.11 In Sudan the president Umar Hasan al-Bashir pushed Hasan at-Turabi aside in 1999, and in Pakistan the ‘atatürkist’ secularist Pervez Musharraf overthrew the ‘islamist’ prime minister Nawaz Sharif. And in the same year Abdurrahman Abdul Wahid became the president of Indonesia.12 Among Muslims in Europe there is developing an awareness of a double belonging, a development of a European Islam, with interpretations of the religious tradition in relation to the European environment and experience.13 The hermeneutical premise is that all application of religious norms is dependent on the actual circumstances at a given time. The texts may be eternally valid, but not the interpretations and applications of them. In the background there are other movements in the Muslim world, still influential or regaining influence. There is the Tablighi jama’at,14 which began in 1927, as a movement against both the traditional folk religiosity, with its popular and rather syncretistic cults, and against the political Islam of the Jamaat-i Islami ideologist Mawlana Mawdudi. There is the very important influence (and revival) of the Sufi movements, the Derwish orders, with their concentration on religion as the inner life, the personal experience, not on religion

Cf. also the international seminar Islam et démocratie/al-islâm wa-l-dîmuqrâtiyya organized the 20th-22nd of March 2000, in El Aurassi, Algier. That was a symptom of the same trend. 12 A continuous survey of the developments in the Muslim world is to be found in the biannual Tidskrift för Mellanösternstudier (Lund; since 1994). 13 One example is Tariq Ramadan, university lecturer in Geneva. He and his book To Be an European Muslim (published also in German, Italian and Dutch) are presented in Time, December 11, 2000, p. 84. The chairman of the Federation of Islamic Organisations in Europe (FIOE), Ahmed al-Rawi, has likewise expressed the importance of finding ‘European solutions’, according to press notices from December 2000. 14 See on the web: http://www.almadinah.org/Articles/JamaatByBarbaraMetcalf.htm. 11


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as ideology.15 Kepel insists frequently on another factor too: the new generations, young people, with experiences which differ from those of their parents. The demands for changes come with certain regularity after about 20 years. Now, can we see a connection between this tendency of an ideological reorientation towards democracy, and to a reinterpretation of the concept of Islamic Law, and the ongoing processes of globalization and global changes? One factor is evidently modernisation in itself.16 Modernity is commonly characterized as the differentiation of both individual and societal functions. In the premodern society the roles and ‘identities’ of the individual were intertwined. In the pre-modern village, for instance, the individual’s life had as a rule a certain cognitive coherence. He would die in the same village where he was born, the so called ‘primary socialization’, creating his basic concepts and understanding of life, would be in the (extended) family, and in the immediate neighbourhood. He would marry a girl from the same village and have the same kind of sustenance or profession as his father and grandfather. Family and neighbourhood constituted simultaneously the religious community. The rites and rituals of the family, the village, the agricultural year, and the different stages of life, were all intertwined. The religious myths and narratives were integrated with the different functions of life, including the norm systems, and the distribution of ‘punishment’ by the social pressure and the customary law of the local community. The village constituted basically a self reliant and endogamous community, whose ‘cognitive universe’ for all practical purposes was within the frame and horizon of village life. ‘Custom’ and ‘law’ was more or less identical. Modernity includes very much a differentiation of these functions. It is very probable that you will die in another place than where you were born. Education includes today migration from the place of birth: schools, university, peregrination, studies in other countries. Knowledge is today transmitted not by personal contacts only, but by media. Your profession will probably by another than your father’s. Your wife will not be a neighbour’s daughter from your childhood, and she will certainly have a profession of her own. You will move in order to get jobs. The professional community will be distinct from other belongings: family, neighbours, religious community. The economic structure of family life will be different. Your wife has her income too, and you are both contributing financially to sustain the nuclear family, not being any more dependent of the extended family or clan. The traditional gender roles lose their relevance, and the same happens in a considerable degree to other inherited norm hierarchies, they lose their character of being the self evident, the taken-for-granted order of society. 15 A most comprehensive handbook on Sufism is A. Popovic et G. Veinstein, Les Voies

d’Allah, Les ordres mystiques dans le monde musulman des origines à aujourd’hui. Fayard 1996. 16 Cf. J Hjärpe, ‘Religious affiliation as a problem for universal ethics’, in: G. Bexell (ed.) Universal Ethics; under publication, Kluwer Academic Publishers), and ‘Revolution in Religion: From Medievalism to Modernity and Globalization’, in: G. Therborn (ed.), Globalization and Modernities – Experiences and Perspectives of Europe and Latin America. FRN, Stockholm 1999, pp. 111-120.

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The differentiation comes to the individual’s ‘cognitive universe’ too. There will be a compartmentalization of how to understand and react to what happens in life and in the world. The mental ‘system’ is no longer a comprehensive one. The frame is no longer life in a local community. The horizon has moved. You know, even in detail, what happens in other parts of the Globe, and what ideas there are promoted in different societies. Norms depend today in a higher degree on choices. We can see that ‘belonging’, the individual’s belonging to a professional community, a religious community, an ideological community, networks of common interests of different kinds, are not any more geographically limited. By new communication techniques we can be in contact with colleagues, relatives, friends, people, with the same hobbies (or ideas), or the same religious faith, all over the world. Even those who are small in numbers locally can constitute a distinct and even powerful community on a global level. One characteristic of today’s globalized modernity is availability. We can, mentally, choose among many competing ideas. We are aware of alternatives. The tradition, including the legal tradition and the hierarchies of norms, has lost its self evidence. What then can be the foundation of a norm system, or a norm hierarchy, applicable in this new situation? The religious affiliation can not be taken for granted, and a religious foundation of the legal system can easily be questioned. Can the foundation be, for instance, professional ethics instead? Or international declarations and conventions? They have evidently a very high reputation. To use their vocabulary and categorizations is almost a necessity, even when criticizing and refuting them. They cannot be ignored. If a law system, legal practice, and legislation still should be founded on religious sources, as is the case in the Islamic legal tradition, there must be developed some kind of at least a verbal accommodation to these international documents. We can see this terminological accommodation very clearly in the Iranian constitution of 1979.17 It declares itself as entirely an expression of Islamic law and the Ja’fari jurisprudence, but its terminology and its structuring is very much influenced by these international conventions, and by the formulations and structures of European constitutions (in some degree by the mediation of earlier constitutional debates in Iran). The actual application of Ja’fari law in Iran, however, is considerably more traditional then the vocabulary of the constitution seems to indicate. The vocabulary, the accommodation in terminology and formulations, have a certain apologetical function: to present the ‘Islamic republic’ and its legal system to an international public and to defend it against criticism from the international society. The new media means a change in authority. The traditional ‘ulamâ’, the ‘learned ones’, the fuqahâ’, the ‘jurisprudents’ of Islamic Law, have their authority by means of specific knowledge. They are specialists: The ‘âlim’ has memorized the Qur’an, he knows thousands of ahâdîth (Sayings of the Prophet), 17 Cf. J. Hjärpe, ‘Some problems in the meeting between European and Islamic legal

traditions. Examples from the Human Rights discussion’, in: T. Forsgren, Martin Peterson (ed.), Cultural Crossroads in Europe, FRN. Stockholm 1997, pp. 52-69.


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and he is able to use the traditional methods to derive an answer, a ‘response’ (fatwâ), to every question regarding norms and rules. But today, not only the Qur’an but also the collections of ahâdîth as well, can be found on the web. There are hundreds of home pages and web sites where young Muslims are discussing with each other and with others. The young Muslim student or engineer does not ask the muftî or whatever other traditional specialist for an answer. He will search for it on the web, and he will find many answers, probably even that one which is relevant in his own situation. He will find the alternatives, traditional answers, new answers, different methods of hermeneutical approaches.18 Thus, in order to retain and maintain a law system derived from the religious sources, it has to change, be experienced as applicable, relevant for the today much wider ‘cognitive universe’ of the individual and the society. New media: Not only the web. There are paraboles and satellite TV, videos and sound cassettes. Messages and ideas are available; they are even available for illiterates. Censorship is impossible due to new techniques. The Iranian student, bewildered by the fact that his source of inspiration, Abdolkarim Soroush, is prevented from lecturing to the students, will phone him with his mobile telephone, ask him questions, and when the professor answers, the student will attach the telephone to a microphone, and all his friends can listen. This too constitutes a situation to which the legal system and its authorities must accommodate. The questions cannot be muted or ignored. Modernity has meant a precedence of rationality. The religious answer is not the only one. In order to defend the religious authority, there has developed a need to show or to prove the rationality of religiously motivated rules. I use to call this ‘the apologetic trap’. In order to defend the religious rule by arguing for its rationality, the rule’s foundation and motivation ceases to be the religion, the basis becomes its rationality and not its divine origin. Reason defends religion and thus becomes the real authority. Natural science has very much taken over the function of being ‘the truth’, the ‘reality’. Simultaneously the specific religion has lost much of its function as a foundation for norms in a society being involved in global processes. Now there is a demand to find a global ethic, norms valid, accepted and applicable on the global level. Then it is not possible to refer only to one specific religio-legal tradition and its sources. We can see that this problematic of a foundation for a global ethic is very much on the agenda for international ‘parliaments of world religions’ which have been organized in recent years. There is a common interest here, among representatives of different religions, to argue for the societal and political relevance of religion in general. One argument is then that it might be possible to seek the globally valid in what can be seen as values common for all the different religions. The ‘consensus’ between religions thus has become an argument and belongs now to the criteria of how to interpret the tradition of the specific religion. 18 Garbi Schmidt has published two small essays on ‘CyberMuslims’ (in Swedish), one in

Tidskrift för mellanösternstudier 1995:1, Lund, and one in: I. Svanberg & D. Westerlund (eds.), Blågul islam? Muslimer i Sverige (Nora 1999).

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To this comes that the traditional function of religion as a legitimation for political power has lost and loses its role successively as the specific religious tradition no more is seen as the self evident truth. People ask for other legitimations of power, the mandate of the people, democracy, even if this demand now very often is expressed in the words, categorizations and narrative patterns of the Islamic tradition. The new interpretations, by the previously mentioned proponents of ‘Islamic democracy’, are very much responses to this problematic. The concepts of security, welfare, Human rights, liberties and tolerance, are so to speak projected into the ‘Madina state of the Prophet’. The interpretation of the tradition being the task of the people itself (guided by the modern intellectual professionals) and not the prerogative of the traditional religious elites, the ‘ulamâ’/fuqahâ’. Global processes, development of new media, the societal differentiation of functions, the individual’s belonging to various networks regardless of geographical boundaries and traditional group structures, have rendered the reinterpretation of tradition a necessity if it should be retained at all. It is obvious that the need is deeply felt by the participants in this Islamic-democratic discourse. But the methods of reinterpretation vary. When Mohammed Talbi argues for religious freedom and the necessity to let the individual choose religious affiliation and praxis freely, without any compulsion, he not only refers to the verse in Sura 2:256 (lâ ikrâha fî d-dîn), ‘no compulsion in religion’ – many are those who do that. He argues from the Qur’anic idea that God created man, Adam, from clay (turâb), and sees in this an indication of God’s plan, His ‘project’ for humanity in creation. In distinction to the angels, man is not created from light; man is not ‘transparent’, but ‘opaque’ as clay. He can hinder the light of God: God created man with a free will, the ability to choose, also to choose that which is wrong, against God’s will, and to take the responsibility and the consequences of his choice. Man has individual responsibility. To force a human being to comply with specific religious rules or a specific affiliation, is thus against God’s ‘project’ with man. In this way Mohammed Talbi finds Qur’anic support for religious freedom (as it is defined in Article 18 of the UN Declaration of 1948).19 New interpretations are connected with new methods and approaches. We can take as an example the ways in which Abdullahi an-Na’im, following M. M. Taha, sees the normative value of the Qur’anic texts. The traditional approach is to regard the later revelations, the texts from the time of the Prophet in Madina, as abrogating rules from the earlier, Makkan, texts, thus constituting the society in Madina during the Prophet’s time as a normative model in Islamic jurisprudence. M. M. Taha and Abdullahi an-Na’im make the opposite: The early revelations, the texts from Makka, are regarded as the eternal, for all times valid message, given by God. The principles derived from them are the eternally valid 19 Cf. M. Talbi (et M. Bucaille), Réflexions sur le Coran (Seghers, Paris 1989), pp. 108, 117,

129.


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legal source. The texts from Madina, on the other hand, are regarded as reflections of an application of these principles in a very specific social and temporal setting. They contain examples of applications, but these are not eternally valid rules, as they were dependent on the special social, economic and mental condition of that time and environment. Due to the development in technology, science, human knowledge and thinking, in modernity, the conditions have changed. Thus the applications of the eternal principles are today by necessity different, lead to other rules, other legal developments, where the international conventions are of importance. In that way there will be an accommodation between this ‘second sending’ (ar-risâla ath-thâniya) of Islam and these conventions and legal reforms on a global level.20 The Taha/an -Na’im solution is a rather radical one, as it turns the traditional approach upside down. It has nevertheless been rather influential. An-Na’im belongs to a very international ‘jet set’, and M. M. Taha has inspired the so called ‘republicans’ (jumhûriyyûn) in the political life of Sudan. As to one aspect, their approach is similar to arguments used by Islamic feminists, when they point out that even the Qur’anic texts must be interpreted with regard to the social structures and conditions at the time and place of their revelation. When in the 34th verse of Sura 4 (an-Nisâ’) it is said that the men ‘excels’ over women ‘because they spend out of their property’ (that is: because of their economic responsibilities), the feminists can point out that today both men and women participate equally in the economic support of the family, why the hierarchy between men and women mentioned in the verse no longer is relevant. The historical context, and societal changes, become in that way tools in the hermeneutics in regard to the sources of the Islamic rule system, in this case in regard to personal law/family law.21 Another method is the close reading of history: To collect all the available references as to the role of women in Muslim history, especially during the most significant and normative period according to Islamic historiography, that is the time of the Prophet and his immediate successor, his wives, the female personalities among his companions, and so on, in combination with interpretations of their importance and the significance of their special features and roles.22 The feminists criticize some of the tradents of ahâdîth (especially Abu Hurayra is regarded as an unreliable authority), and they point out the male-biased selection which characterizes traditional Islamic historiography. Still another method is to reinterpret the meaning of the words in the Qur’anic vocabulary. For instance, the word qawwâmûn in the verse mentioned above, is translated not as ‘maintainers’ or ‘directors’ of the women, but as ‘supporters’, ‘helpers’ of them.

20 Cf. Jonas Svensson, op. cit., p. 177 f. 21 For interesting examples of the Qur’an and hadîth interpretations of Riffat Hasan, cf.

Jonas Svensson, op. cit., p. 94 ff. 22 One example is Magali Morsi, Les femmes du Prophète (Mercure de France) 1989;

translated into different languages and very widely spread.

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Perhaps the most original thinker is the Iranian reformist Abdolkarim Soroush (Hossein Hajj Farrajollah Dabbagh). I will not go into his interpretations, but will signal his importance for the future, by his use of concepts from the contemporary international discussion of hermeneutics, his break with the traditional Aristotelian paradigm shaping much of the traditional Islamic jurisprudence and its way of working. A too vast topic to go into for the moment. It is quite clear that he is influenced by his reading of Wittgenstein, Popper, and Michel Foucault.23 The main points in the tensions, or conflicts, between more traditionally interpreted Islamic Law and the UN Declaration of Human rights from 1948, and the later conventions, have been in regard to family law, the question of gender equality ‘without distinction’, the Article 18 and its definition of religious freedom (including the right of conversion), and the questions of hadd and qisâs, that is the corporal punishments (flogging), amputations as punishments, and certain kinds of the capital punishment (stoning), and the right to retaliation for murder and corporal damages, these having been seen as a part of the divine law; and the right of retaliation as a ‘human right’.24 The reformist reinterpretations can be seen as ways of accommodation to the international conventions in these matters, diminishing the conflicts and tensions, but preserving the idea of a specific Islamic legal tradition depending on the sources of a law of divine origin. Necessity is in itself a valid legal principle: maslaha, the equal to the commune bonum of Roman law, tends to be regarded as more important. One example is the reaction to the demographic development, the much too fast growth of populations, creating immense economic and social problems in several of the states in the Muslim world. We can see that this reality has been a driving force in changing the attitudes towards family planning, and we can see plenty of new fatwâs giving legitimation to such measures, implicating reinterpretations of the sources by new arguments.25 One argument for this accommodation is that the principles of the international conventions could be more easily accepted and get popular support if they are translated, so to speak, to the categorizations and the terminology of the Islamic legal tradition. It might be so. But we can see the process also as a way to preserve the Islamic legal tradition. By the accommodation it can retain at least some of its relevance in a globalized world.

23 Cf. the above mentioned thesis by Ashk Dahlén; see also Valla Vakili, The Political

Thought of Abdolkarim Soroush, New York 1996. 24 Cf. Jan Hjärpe, ‘Some problems etc.’, in: T. Forsgren, Martin Peterson (red.), Cultural

Crossroads in Europe, FRN, Stockholm 1997, p. 63 ff. 25 Cf. the reasoning (and collection of pronouncements from religious authorities) in: Abdel

Rahim Omran, Family Planning in the legacy of Islam (United Nations Population Fund, Routledge, London and New York 1992).


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References Anees, Munawir, ‘The Future of Islam: Tie up Your Camel’, in: Journal of Futures Studies, Vol. 4, Nr. 2, May 2000. Barton, Greg., The Emergence of Neo-Modernism; a Progressive, Liberal Movement of Islamic Thought in Indonesia: A Textual Study Examining the Writings of Nurcholish Madjid, Djohan Effendi, Ahmad Wahib and Abdurrahman Wahid 1968-1980, Monash University 1995. Dahlén, Ashk, Deciphering the Meaning of Revealed Law, The Surûshian Paradigm in Shi’i Epistemology, Diss., Uppsala 2001. Hefner, W., Civil Islam, Muslims and Democratization in Indonesia, Princeton University Press 2000. Hjärpe, Jan, ‘Den inomislamiska debattens kritik av fundamentalismen’, in: Det levende Ordet. Festskrift til professor, dr. theol. Åge Holter på hans syttiårsdag, Universitetsforlaget 1989. Hjärpe, Jan, ‘Våldets dysfunktion för det religio-politiska språkets användbarhet’, in: Svensk religionshistorisk årsskrift, 1996. Hjärpe, Jan, ‘Some problems in the meeting between European and Islamic legal traditions. Examples from the Human Rights discussion’, in: T. Forsgren, Martin Peterson (ed.), Cultural Crossroads in Europe, FRN, Stockholm 1997. Hjärpe, Jan, ‘Revolution in Religion: From Medievalism to Modernity and Globalization’, in: G. Therborn (ed.), Globalization and Modernities – Experiences and Perspectives of Europe and Latin America, FRN, Stockholm 1999. Hjärpe, Jan, s.a., ‘Religious affiliation as a problem for universal ethics’, in: G. Bexell (ed.) Universal Ethics, Kluwer Academic Publishers (forthcoming). Kepel, Gilles, Jihad; Expansion et déclin de l’islamisme, Gallimard 2000. Morsi, Magali, Les femmes du Prophète, Mercure de France 1989. Omran, Abdel Rahim, Family Planning in the legacy of Islam, United Nations Population Fund, Routledge, London and New York 1992 Popovic, A., et Veinstein, G., Les Voies d’Allah, Les ordres mystiques dans le monde musulman des origines à aujourd’hui, Fayard 1996. Schmidt, Garbi, ‘Cybermuslimer’, in: Tidskrift för mellanösternstudier 1, Lund 1995. Schmidt, Garbi, ‘Sveriges Förenade CyberMuslimer – blågul islam på internet?’ in: Svensson, Jonas, Women’s Human Rights and Islam. A Study of Three Attempts at Accommodation, Lund Studies in History of Religions Vol. 12., 2000 Svanberg, I., & Westerlund, D, (eds.), Blågul islam? Muslimer i Sverige, Nora 1999. Talbi, Mohamed, et Bucaille, Maurice, Réflexions sur le Coran, Seghers, Paris 1989. Talbi, Mohamed, Plaidoyer pour un islam moderne, Cérès/Desclée de Brouwer, Tunis 1998. Vakili, Valla, The Political Thought of Abdolkarim Soroush, New York 1996. MAGAZINES: Muqaddimât/Prologues. Tidskrift för Mellanösternstudier (Lund; since 1994). Time

Islamist Responses to Human Rights: The Contribution of Muhammad al-Ghazzali J A K O B S K O V G A A R D -P E T E R S E N Index Islamicus, the Cambridge quarterly survey of books and articles written on Islamic subjects, has recently published a CD ROM containing all books and articles written on Islamic subjects since 1906. If you enter the key terms human rights, it will give you no less than 419 hits on human rights and Islam. The question of the relations between Islam and human rights is certainly considered an important issue in Islamic studies today. But as the Index Islamicus will also reveal, this was not always so: the first of the 419 articles appeared in 1974 – some 26 years after the universal declaration of human rights – and prior to 1980 there are less than twenty registered publications. The scholarly interest in human rights and Islam, then, goes no further back than 20 years. The Index Islamicus registers the interests of Islamic studies. What about the Muslims themselves? Is there a similar negligence of the subject of human rights among Muslims until the mid-1970s, and, if so, how is that to be explained? And, conversely, what explains the steep rise of interest in the 1980s? After briefly sketching what I believe are the fairly obvious political circumstances of the Muslim rise of interest in human rights, leading to the formulation of specifically Islamic human rights schemes in the 1980s and 90s, I shall go back to the seventies and look into one of the first Muslim scholarly books on Islam and human rights in order to trace the ideological development of the Islamist position on human rights.

Overall historical background Constitutionalism enters the Muslim world in the second half of the 19th century with the Constitutions of Tunisia (1861), Egypt (1866) and the Ottoman Empire (1876). Although civil rights were limited to the few, the parliaments were only consultative, and the constitutions were revoked again, in part by the European colonial powers, Constitutionalism as such had been introduced, and whenever a Constitution was abrogated this act was seen by the politically alert as unconstitutional. As Arjomand has asserted, once introduced it was difficult to put the genie back into the bottle again: you can do away with an individual Constitution, but you cannot really do away with Constitutionalism.1 A new wave of constitutional pressures arose after the turn of the century, this time including Iran. By this time, most of the Muslim world had been grabbed by the European colonial powers. In most places, however, the nationalist struggle against colo-

1 Arjomand, 1994, pp. 46-49.

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nialism was also a struggle for political, civil and even social rights. After world war one, Britain and France, often after long and arduous negotiations, gave in to demands for constitutions, parliaments and varying degrees of selfgovernment. And the period between 1920 and 1950, dominated by the struggle against foreign control, was characterised by marked, if always also somewhat constricted, political participation and mobilization. Constitutional politics, complete with elections, congresses, workers movements, political parties and party-papers, were the order of the day. As were strikes, demonstrations, students organizations, worker’s riots, communist cells, secret societies, agent provocateurs, and political assassinations. This century-long political history is very often forgotten in public debates on Islam, democracy and human rights. By the time of the preparation and convention of the Universal Declaration of Human Rights in 1948, Muslim countries were in the midst of decolonization; some such as Indonesia, Syria and Lebanon, had already gained independence, others, like Egypt, had a great degree of it, whereas others again, such as Algeria and Kuwait, were still under tight foreign control. In the newly liberated countries, new political institutions had been set up, and popular participation and political aspirations were runnning high. Egypt, India, Iran, Iraq, Lebanon, Saudi Arabia, Syria and Turkey were among the 51 countries that founded the UN, whose charter speaks of “Promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.” (1:3). Support for human rights is thus a precondition for membership, and this seems to have been considered by everybody a goal worth while pursuing. The Universal Declaration of Human Rights was adopted with 48 votes for, and none against. But Saudi Arabia abstained in protest against art. 18, which guarantees the right to change religion, and art. 16 which gives women and men equal rights in marriage and in its dissolution. This initial support for the Universal Declaration on behalf of the Muslim states is sometimes dismissed as the work of the Westernized elites. Although it can probably be claimed of most countries that their citizens had little direct interest or impact on their ratification of the Universal Declaration, it should at least be noted that many Muslim countries at the time were led by governments formed by the independence movements who in many cases were democratically elected by a popular mandate rather more solid than most governments that have come to power ever after, at least in the Middle East. The underlying assumption that anything pro-Western or secular can not command popular support seems to me to underestimate the universality of the human rights idea, and how well it fitted into the prevailing public understanding of politics and rights in the Muslim world. To many Muslims in the period, the overarching experience and problem was imperialism, and they saw themselves as defenders and upholders of universal political rights which the colonial powers had been unwilling to bestow on their colonial subjects. To them, the issue of political rights was not a question of East or West. Political rights were theirs.

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The 1970s The reason why the issue of compatibility of Islam and human rights did not arise in the following decades must be sought in the relative insignificance of the Human Rights Declaration and the UN system in general. The scope of the international human rights was continually extended, but as international politics were dominated by the cold war, and controversial and innovative statements were likely to be vetoed by one of the superpowers in the Security Council, the issue of actual steps to implement human rights were not on top of the agenda. By the 1970s, this was about to change, due to anti-Apartheid, third world activism and other issues. In the Middle East, the notion of suppressed peoples was suddenly highlighted with the rise of Palestinian and Kurdish terrorism. Minority issues, such as those of the Copts in Egypt, began to receive attention with the emergence of lobbying groups in Washington, and the Carter administration’s human rights concerns. And, slowly, an Islamic dimension was added to these questions. The main reason for this must be sought in the Islamic awakening and the rise of modern Islamic politics. From around 1970, increasing numbers of citizens in the Muslim world, be they Christians or Muslims, began realizing the importance of religion in their lives. Many Muslims, who had been little engaged in religion, set out to lead a pious Muslim life, following the guidelines of religion, praying and fasting. Islamist political organizations, typically dating back to the 1930s, but much suppressed in the 1950s and 60s, drew new sympathizers, who considered Islam the right order, not just for themselves but for society as a whole. A number of states, such as Libya, Pakistan and Egypt, changed their political rhetorics and symbols, and sometimes their laws, in order to accomodate this new current. And the oil-boom enabled Saudi Arabia to render financial support to Islamist movements all over the world. In many Muslim countries, the question of the Islamic identity of the state became a major bone of political contention, and both states and opposition movements tried to raise their Islamic credentials and tap into this new source of ideological legitimacy. The climax of this development is of course the Iranian revolution of 1979, which adopted a new Constitution claiming to be Islamic and thus formulating a political and legal order, and civil rights, which were at variance with the Universal Declaration of Human Rights on numerous issues. In the 1980es, this was followed by other declarations of Islamic human rights. Another important factor was the further expansion of international human rights declarations into more cultural fields, and the rising awareness in the third world of the phenomenon of cultural imperialism. The UN Convention on the Elimination of All Forms of Discrimination Against Women from 1981 proved to be the bridge too far. Several Muslim countries simply stated that they did not consider themselves bound by any provision which was not in accordance with the Islamic Sharia.2 This in effect placed the Sharia above the Convention, in

2 Mayer, 1997.


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direct contradiction of the Convention which did not accept cultural particularism as a valid reason for breach of the principle of the equality of the sexes. Finally, one may speculate that the adoption of more Islamic lifestyles among Muslim immigrants in Western Europe, and the sense of discrimination against them, has further added to a renewed interest in human rights amongst Muslims.

Ideological positions By the mid-1990s, several Islamic Human Rights Declarations had been published, all critical of the Universal Declaration of Human Rights. As Ann Mayer has demonstrated, more often than not, these declarations have been launched, not to protect humans, but to protect Muslim states from international criticism of their human rights abuses. They employ the cultural relativist argument to produce their own human rights schemes, which they do not take seriously themselves, let alone follow, but mainly promulgate in order to discredit international human rights monitoring and activism. It is still the principles of the Universal Declaration they adher to, when they want to criticize unfriendly neighbouring states, or the US.3 And the same politicians who reject the universal human rights may appeal to them when they are out of power, and in prison. Even so, this political opportunism does not preclude that Islamic human rights schemes are based on a growing awareness of difficulties in accomodating Muslim values and international human rights. Hence, it might be useful to investigate Muslim attitudes towards the universal human rights dating back prior to the Iranian revolution and the 1980s discovery of human rights as a political instrument, whether it be in the form of a weapon or a shield. In order to move from the political level towards a discursive level, it is instructive to recapitulate the positions in the Muslim debate identified by Fred Halliday. He lists four basic positions: assimilation, appropriation, particularism and confrontation.4 Assimilation denies that there is a conflict. This position is based on a reading of the Islamic tradition which stresses the Quranic injunction against coercion in religion, and for mutual consultation and the pursuit of the common good. It will always look for the most liberal tendency in classical Islamic law and Quran interpretation, and consider it the most legitimate and correct. This is the position of the liberals in the Muslim world. Appropriation considers Islamic states as especially keen upholders of human rights, and considers the West, in turn, as having an especially dark human rights record. This is the tendency behind the recent Islamic declarations of human rights. According to this position, human rights were given by God long ago, and all we have to do is to follow them. 3 Mayer, 1999, pp. 175-83. 4 Halliday, 1996, pp. 136-39.

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Particularism asserts that Islamic states are based on a different culture and, consequently, cannot be criticized from without this culture. This is a more defensive position which does not take issue with the universal human rights as such, but only with their proclaimed universality. Or as King Fahd has put it: “The democratic system prevailing in the world does not suit us in the region.” Confrontation rejects secular law and all non-Islamic understandings of law and rights. Sharia must be adopted all over the world. This is the position of Islamism, according to Halliday. He finally mentions a fifth variant, incompatibility, but since this is a position of non-Muslim commentators, we will not go into it here. Now, as we have seen, on a state level, the first position of assimilation has been dominant throughout the 20th century, with the exception of Saudi Arabia which, right from 1948, has taken the third, particularist, position. But from at least 1990, when the Organization of Islamic Countries adopted the Cairo Declaration of Islamic Human Rights, the second position, appropriation, has enjoyed some support in state circles. And in the case of Iran, this goes back to 1980.

Mawdudi It is the fourth position, confrontation, which Halliday describes as Islamist. Now, I shall argue that this position is in fact a fairly radical version of Islamism, even if it may be perhaps called a consequent one. It relates to the rejection of man-made laws altogether, the theory of God’s sovereignty as negating man’s sovereignty, a theory primarily associated with the radical Islamic thinkers Sayyid Qutb and Abu l-‘Ala al-Mawdudi.5 Of these two, Sayyid Qutb has never worked on human rights at any length, probably because he died in 1966 and thus prior to the renewed political interest in human rights, but maybe also because, in his later and more radical writings, he saw Islam as only adhered to be a tiny group of true Muslims and therefore concentrated on threats to Islam from hypocritical Muslims. In Qutb’s writings there is, however, a marked disdain for democracy and civil rights. Abu l-‘Ala al-Mawdudi, however, is one of the first Muslim writers to devote a whole study to the question of human rights in Islam. A journalist active in Indian and later Pakistani politics from 1940 when he founded the radical Islamist group Jama‘at-i-islami, Mawdudi has also been very active abroad, in particular through his services to the Saudi based Muslim World League. The years just before his death in 1979 mark the apex of Mawdudi’s political influence with the Islamist takeover in Pakistan in 1977, and the translation of much of his work into English. His pamphlet on human rights was published in English in 1976. It certainly merits the characterisation as confrontational, as it sets

5 Moussalli, 1992, pp. 149-51.


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out to describe two contradictory approaches to human rights, the Western and the Islamic. According to Mawdudi, Western ideologists have tried to construct human rights as an essentially Western phenomenon, dating it back to Magna Carta and the like, but in fact there is no mention of human rights in Europe until the late 18th century. Since then, these rights have been inscribed in various European constitutions, and later on in the UN declaration of human rights, but they have no sanctions behind them and are regularly violated. The UN is just a spectator, even when there is a genuine genocide going on, as is the case with the Indian Muslims. Islam, by contrast, is an older, universal and applicable approach to human rights, because its rights are sanctioned by God and every Muslim will have to accept and enforce them. Mawdudi lists eight basic human rights, to life, to chastity of women, to a basic life standard, to justice, and the like. And he lists fifteen rights of citizens in an Islamic state, e.g. property rights, freedom of expression, freedom of association and the right to protest against tyranny. Mawdudi’s position is, I belive, not representative of political Islamism as understood as the broad currents claiming that Islam is a political and social system which has been abandoned and must be implemented in Muslim societies and adopted by Muslim states. Likewise, Mawdudi’s theory of God’s sovereignty as negating man’s makes him very dismissive of democracy, whereas most Islamist currents have a more ambiguous attitude towards democracy. I shall now proceed to another Islamist of high standing who may in fact represent broader tendencies within Islamism, at least in the Arab world.

Muhammad al-Ghazzali Mawdudi’s treatise is not the work of an ‘alim, a Muslim scholar. It is short, polemical and declamatory. In the Arab world, there is particularly one ‘alim of high stature who wrote a book on human rights in the 1970s, thus setting the tone for the debates of the 1980s. This is the interesting figure of Muhammad al-Ghazzali. Born in 1917, he began studying theology at al-Azhar University in 1937. By that time, he had already met with Hassan al-Banna and joined the Muslim Brotherhood. After alBanna’s death in 1949, al-Ghazzali was implicated in an aborted coup attempt against his successor Hasan al-Hudhabi, in 1953, and was consequently expelled from the Brotherhood.6 With his first Islamist books for a broader audience in the early 1950s, he acquired a reputation as an independent mind with an Islamic Socialist inclination, and one of the few religious critics of Saudi Arabia. This, in particular, made him an interesting person to the Nasser state, and he was promoted to Head of Secretary of the Supreme Council of Islamic Affairs, set up in the mid-1950s to promote an Egyptian understanding of Islam abroad.7 In the 1970, al-Ghazzali became the preacher of Egypt’s oldest mosque, the enormous Amr ibn al-As Mosque in Southern Cairo, and made it into a highly 6 Schulze, 1990, p. 107. 7 Skovgaard-Petersen, 1997, p. 159.

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popular centre for Islamist preaching. He was always balancing between government and Islamists, and therefore a key figure in the government alliance with conservative ulama. In 1981, al-Ghazzali accepted an invitation to Algeria, again occupying the position as the government’s man – his Friday sermons were transmitted on TV every week – but clearly with his own Islamist agenda. Coming back to Egypt in 1989, his numerous books gave him a reputation as the shaykh who was equally respected in political Islamist and in Azhari circles. But somehow the Egyptian government still had faith in him, consulted him in Islamic matters, and tried to use him as a go-between to the Islamists on several occasions, at least until 1993 when he witnessed in the case against the Islamist assassins of Farag Foda, a well-known anti-Islamist writer, and considered him an enemy of religion and thus justified his murder.8 Muhammad al-Ghazzali died i 1995.

Between the Doctrines of Islam and the Declaration of the United Nations The title of Muhammad al-Ghazzali’s book already reveals a different perspective from that of Mawdudi: “Human Rights between the Doctrines of Islam and the Declaration of the United Nations”. It is meant to be an analytical comparison, and in this it makes an implicit recognition of the UN declaration as a valuable effort, if in certain ways deficient and, of course, inferior to the doctrines of Islam. Significantly, the Universal Declaration of Human Rights is actually quoted in full, as is, in my second and revised edition from 1984, the first of the Islamic human rights declarations, that of the London based Islamic Council, dated 1980. Of this declaration, and those which followed it, Ann Mayer has pointed out that “In casual reading, the English version of the UIDHR seems to be closely modeled after the UDHR, but upon closer examination many of the similarities turn out to be misleading.”9 She stresses that many formulations are kept vague and obscure and thus not conducive to positive legal application. This holds true of al-Ghazzali’s book, as well, of course, being a book-length study. His intention is not to promote human rights, but to promote Islam. But, like the London declaration, he follows the Universal Declaration, and refers to it along the way. And although his tone towards the Western world is confrontational, his attitude to the UN declaration is much more positive and a good example of the appropriation position. This, too, is spelt out right from the beginning. In the preface to the second edition al-Ghazzali sets out stating that Western political thought derives from the Arabs and Muslims. Had it not been for them, the thoughts developed in Europe in the 16th century, would not have appeared until the 26th. The Renaissance in the West was inspired by the Muslims who had held the torch of civilization for a thousand years. They were not overrun by Europe, so it was the 8 Zeghal, 1996, pp. 212-14, 335-36. 9 Mayer, 1999, p. 21.


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Muslims themselves who abandoned their leading position. And al-Ghazzali asks why. To answer this question, he quotes a line from Khalil Jibran: There are two kinds of people, those who slept in the light, and those who were awake in the dark. The Muslims, says al-Ghazzali, are those who have slept in the light, and the universal declaration of human rights is a good example of this. These are principles which we have always been preaching and which derive from us. No wonder that when they appeared during the French revolution, it was a new phenomenon in the Western world: a cake in the hand of an orphan is a marvel. And now they want to export these principles to us, just like those who want to sell us, the Egyptians, cotton. “We fear that the day will come when the West will export to us the washing of the face, hand and foot, pointing to their value for human cleanliness. And if you say: but that is wudu’, the ritual ablutions that we know so well. These contriving seducers will exclaim: now, why don’t you just admit to your backwardness, and [the West’s] progress?”10 This line of argument is well known from the Muslim reformists of the early 19th century. It is the accomodation, the first of Halliday’s points, according to which there is no inherent contradiction, or conflict, between Western and Islamic values. As the Salafis before him, al-Ghazzali explains this lack of conflict by stating that it is the West which, in an earlier era, has appropriated Islamic values and made them its own: They have taken it all from us in the first place, so of course we are entitled to adhere to it, and with pride. Al-Ghazzali adds, however, that on several points the universal declaration is deficient, and must be corrected. For like Mawdudi, he asserts that man has received a message from Heaven, and all things must be evaluated according to this message. Those doctrines which are in accordance with it, even though they may be imported, they are correct and must be adopted. But those doctrines which are at variance with it, even though they may be established customs of ours, must be rejected.11 This neatly sums up the different attitudes of Mawdudi’s rejectionism and Ghazzali’s appropriation.

The question of conversion As mentioned, the book lists the Universal Declaration, and it vaguely progresses along the same lines, sporadically referring to its paragraphs. Still, it is exclusively an exposition of Islam’s human rights, the rights and duties of the individual Muslim, as Muhammad al-Ghazzali sees them, and the Universal Declaration is very much in the background. As he proclaimed, he will sometimes endorse the Universal Declaration and point out that it ought to be followed, also in Muslim lands. This is the case with equality before the court, where he points out that the oppressors use the court system to subdue the population, through false accusations and political judgments against their op10 Ghazzali, 1984, p. 6. 11 Ghazzali, 1984, p. 7.

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ponents. This is most probably a reference to the Arab world, or even to Egypt. Other themes, such as slavery, give him the opportunity to dwelve on the miserable Western human rights history.12 On several points, however, he does specifically polemicize against the Universal Declaration’s formulation, demonstrating that it is plainly wrong. This includes the issues identified by Ann Mayer as especially thorny, such as the right to change religion, equality between man and woman, and the rights of non-Muslims. I have chosen the question of conversion for closer treatment. Significantly, al-Ghazzalis treats the right to change religion as the right to apostacy, irtidad. The point is made that apostacy from Islam is much like political treason, as Islam is not just a belief, but it is also a social system. So he asks: does Islam allow the freedom to irtidad? And answers: since this particular religion is a system, it has the right to answer in the negative: “Take a man who wishes to renounce Islam in order to become Communist…Communism means that there is no God, and life is matter, and apart from that it has a view on the Social foundation which the state is based upon. Can it be asked from Islam that it must naively uphold a freedom to apostate in this manner?”13 The same is asked about a man who embraces Existentialism. Both aim at destroying society and creating chaos. But what, then, about conversion to Judaism or Christianity – now that Christians and Jews have the right to convert to Islam? Here, al-Ghazzali employs a somewhat similar argument: Islam confronts those people who enter it falsely and depart from it in order to damage it. Was it to be expected that Islam would accept this kind of behaviour? It allows Jews and Christians to live next to it in the same society. Why should they abandon their religion and embrace Islam, only to leave it again. From ancient times, this is what the Jews have been doing, and the Qur’an specifically warns against this practice: In verses 73-74 of Al Umran (Sura 3), it refers to some Jews who faked interest in Islam with the intent of undermining it. “So the right to irtidad only means one thing, concludes al-Ghazzali, “and that is to give to others the freedom to damage Islam, insult its doctrine and set snares for its Sharia.”14 The change of religion from Islam is a conspiracy against religion and treason towards the state. Al-Ghazzali quotes the radical medieval thinker ibn Qayyim al-Jawziya (d. 1350) at some length to establish that it is an essential part of the Islamic religion that its community keeps itself pure and vigiliantly and determinedly adheres to its doctrines. In such a society, the apostate has no place.15 This is an interesting example because it shows that, on some points, alGhazzali can be as rejectionist as is Mawdudi. In the case of conversion he even hints at some enduring enmity towards Islam on the parts of certain Jews and Christians. But there is still some way to Mawdudi who would see the world as 12 13 14 15

Ghazzali, 1984, pp. 110-13. Ghazzali, 1984, p. 88. Ghazzali, 1984, p. 89. Ghazzali, 1984, p. 93.


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such as composed of Islamic and anti-Islamic forces, and the human rights themselves as a kind of Western ploy. In a sense, al-Ghazzali here is still closer to the particularist position: these rules may be good enough for the rest of mankind, but on certain issues they must be rejected by the Muslims.

Conclusions This brief reading of a modern Arab Muslim human rights classic has pointed to several things. First of all, I think it is fair to say that, although the rejectionist stand is certainly represented in al-Ghazzali’s book, he is rather more subtle. Where, for Mawdudi, the point of departure is the antagonism of two systems, the West and Islam, al-Ghazzali takes a more self-confident, less conspiratorical view of the world we live in. To him, Islam has inspired many ideas and institutions of the modern world, and it can thus easily accomodate them. It is infuriating that Westerners with little understand of history and none of spiritualism, can go on claiming that everything good comes from them, when in fact it comes from Gods revelations. But at least they are slowly discovering these social and political values. Or some of them, for there are also severe threats in contemporary Western thinking, not only ideologies such as Communism and Existentialism, but also to a certain degree in internationalism, as long as it is so dominated by Western thinking and Western interests. It is on issues such as religious freedom and sexual equality that Muhammad al-Ghazzali adopts the firmer stands of particularism or confrontation. But overall, particularism to him would be a too defensive strategy, as it conveniently ignores the universalist message of Islam. In terms of Halliday’s typology, then, I would reckon that al-Ghazzali has framed his book squarely within the position of appropriation, but there are minor displays of accomodation and particularism within it, plus a good dose of confrontationism. This is a highly flexible position, which seems to mirror alGhazzali’s impressive capabilities as a radical preacher in the minefield of Egyptian religio-political contestations of the 1970s, 80s, and 90s. Such a position will enable a Muslim intellectual to adopt any tenet of the universal human rights he might like, and reject whatever he might dislike. Also, it will alert Muslims to the political use of human rights – whether it be by their own or Western governments and media – without dismissing them out of hand, as the Mawdudi and Sayyid Qutb position will be forced to do. Ten years ago I heard an Islamist in a debate in Cairo exclaim, “how can I have trust in universal human rights, when these were first formulated in France a few years before she invaded Egypt, and later universally adopted in the year of the proclamation of the Israeli state?” He has a point. Whether we like it or not, within the last twenty years, in particular, human rights have become a foreign policy tool, and they often seem to be evoked selectively, according to national interests. In the Islamist press, there is a lot of cynicism about the issue of human rights these years.

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But it can safely be said that with the introduction of Islamic human rights schemes, Muslim scholars and intellectuals have also entered the political human rights game. And this is why treatments like this will be added to the 419 already in existence. Much of their content is foreboded in al-Ghazzali’s book which quite rightly gives us a muddled impression of Islamism, not simply as a rejection of Western values, but as a mixture of accomodation, appropriation, particularism and rejection. It is perhaps an odd, and not quite comfortable, conclusion that many human rights issues of the 21st century may ultimately also depend on the manner in which future influential Muslim scholars may choose to dose these ingredients.

References Arjomand, Said Amir, “Constitutions and the Struggle for Political Order: A Study in the Modernization of Political Tradition”, in Mardin: Cultural Transitions in the Middle East, Brill, 1994: 1-49. Ghazzali, Muhammad: al-islam wa huquq al-insan. Second rev. Ed. Cairo: Dar al-Kutub al-Islamiya, 1984. Halliday, Fred, “Human Rights and the Islamic Middle East”, in Halliday, Islam and the Myth of Confrontation, Tauris, London 1996: 133-59. Mayer, Ann, “Islamic Reservations to Human Rights Conventions. A Critical Assessment” in Susan Rutten (ed), Human rights and Islam, teksten van het op 6 juni 1997 te Leiden gehouden vijftiende RIMO-symposium. Leiden 1998. Mayer, Ann, Islam and Human Rights, 3rd ed., Westview Press, Boulder 1999. Schulze, Reinhard, Islamischer Internationalismus, Brill, Leiden 1990. Skovgaard-Petersen, Jakob, Defining Islam for the Egyptian State, Brill, Leiden 1997. Zeghal, Malika, Gardiens de l’islam. Les oulémas d’Al Azhar dans l’Égypte contemporaine, Presses de Science Po, Paris 1996.

Terrorism, Public Emergency, and International Order The U.S. Example D AV I D L I T T L E The September-eleven attacks on New York City and Washington, DC, 2001, and the subsequent ‘war on terrorism,’ involving the use of force in Afghanistan and its possible use in Iraq, among other things, pose for Americans something terrorist attacks have been posing for people in other parts of the world for some time: the challenge of trying to protect the rules and institutions of international order in face of the threat to national security that terrorism represents.

Terrorism and Public Emergency The urgent efforts by the United States to justify special protections at home and abroad against terrorist threats to national security are but one example of a general appeal to public emergency. As we shall see, such appeals go to the heart of the existing system of international order, including human rights and humanitarian law, as well as the supporting rules and institutions associated with the United Nations Charter. There can be little doubt that the attacks of September 11 constituted for the United States a “public emergency which threaten[ed] the life of the nation….,” in the words of article. 4 of the International Covenant on Civil and Political Rights. Such a conviction has shaped much of the subsequent activity of the Congress and the Bush administration. The Congress has reacted by liberally increasing expenditures, including defense spending, for counterterrorism. It has also passed special legislation designed to protect national security in time of emergency, such as the USA Patriot Act, which suspends certain civil rights and rule-of-law protections, and which the Justice Department has been aggressively administering in various controversial ways since the law was signed on October 26, 2001. On December 4, 2002, the Bush adminstration announced that although the government could afford to provide, in some cases, large end-of-the year bonuses to political appointees, it would nevertheless be compelled to reduce the standard salary adjustment for civil servants from 4.1 to 3.1 per cent because of the cost, as it said, of the ‘national emergency’ caused by the September 11 attacks.1 Earlier, the president established special military commissions to prosecute alleged terrorists, and ordered the detention of several thousand combatants in Afghanistan, some 300 of whom have been transferred to Camp X-Ray in 1 “White House Defends Return to Appointees’ Cash Bonuses,” New York Times

(December, 5, 2002), p. A29.

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Guantanamo Bay. These prisoners were apprehended under conditions that the government claims – again, controversially – are at least partially exempt from the standards of international humanitarian law. In addition, the president has authorized targeted assassinations of alleged terrorists by the CIA, such as took place in Yemen in early November 2002. That is an action that appears to override a long-standing executive prohibition on such actions. At the behest of the president, the Congress has created an immense new government agency, the Department of Homeland Security, to regulate the domestic response to terrorism, though the range of its new powers is not yet fully disclosed. For its part, the Defense Department is now “constructing a computer system that could create a vast electronic dragnet, searching for personal information as part of the hunt for terrorists around the globe – including the United States.”2 On September 17, 2002, the Bush administration released a document entitled, “The National Security Strategy of the United States,” which summarizes, among other things, the administration’s response to terrorism. One observer calls it “the most sweeping shift in U.S. grand strategy since the beginning of the Cold War.”3 According to the document, the US promises to sustain global dominance such that “our forces will be strong enough to dissuade potential adversaries from pursuing a military buildup in hopes of surpassing, or equaling, the power of the United States.” Consistent with the theme of military predominance is the declared intention that whenever and wherever it may so decide, the United States will determine, apparently without regard to the international system of rules and regulations, what constitutes an imminent threat to national security and what shall be done about it. “While the United States will constantly strive to enlist the support of the international community, we will not hesitate to act alone, if necessary, to exercise our right of self-defense by acting preemptively;…” (emphasis added). The language strongly suggests that, in the last analysis, it is exclusively and totally up to the U.S. to decide what constitutes national self-defense and when and where it may inititiate a pre-emptive attack. On October 10, 2002, the president received congressional authorization for use of force against Iraq as part of the ‘war on terrorism’ by votes of 296-133 in the House, and 77 to 23 in the Senate. Even though the final language of the resolution was more restrictive than the language originally proposed by the administration, and even though congressional inquiry and debate exposed a number of reservations and apprehensions about the Bush administration’s Iraq policy, in the end the resolution provided the president with wide discretion to “(1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) to enforce all relevant United Nations Security Council resolutions.”

2 “Pentagon Plans a Computer System That Would Peek at Personal Data of Americans,”

New York Times (Nov. 9, 2002), p. A10. 3 John Lewis Gaddis, “A Grand Strategy of Transformation,” Foreign Policy (Nov.-Dec.,

2002), p. 50.

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On November 6, 2002, the UN Security Council finally adopted by a vote of 15-0 resolution 1441, authorizing an intrusive weapons inspections program in Iraq to verify how far Saddam Hussein has yet to go in complying with longstanding Security Council demands that he eliminate completely all weapons of mass destruction. The Bush administration believes that unless Saddam Hussein is thoroughly disarmed, he represents, among other things, an imminent threat to the United States as a potential supplier to terrorists of biological, chemical or nuclear weapons. The three months of debate in the Security Council over the language of the resolution was difficult and contentious, and the final version constitutes a substantial compromise between strong impulses within the Bush administration and opposing concerns on the part of several members of the UN Security Council. As such, the resolution represents a provisional, and perhaps temporary, vindication of the principle of collective security. In the short run, at least, the United States made a number of important concessions to international collaboration, and thereby deviated from an initial, distinctly unilateral, posture toward Iraq.4 The Bush administration originally sought to circumvent the United Nations altogether, and to justify independent military action with the intent of overthrowing Saddam Hussein. When it agreed to submit to UN procedures, it had hoped that the resolution would include authorization for an immediate and automatic resort to force, should Saddam fail to comply with UN demands. However, as the result of tough bargaining, particularly on the part of the French, the resolution focuses exclusively on disarmament, rather than ‘regime change,’ and contains no warrant for an automatic resort to force. It requires that, should Iraq default, the U.S. must consult with the Security Council before any action is taken, possibly retarding for months the date when a military strike against Iraq might begin. At the same time, by agreeing to the Security Council resolution, the United States, presumably, has not surrendered what it understands as its final, overriding prerogative to initiate military action as it alone sees fit, should the Security Council fail to act to enforce the resolution according to U.S. preferences. Terms and phrases, like ‘self-defense,’ ‘imminent threat,’ ‘preemption,’ ‘necessity,’ ‘if necessary,’ and ‘by all necessary means,’ such as abound in the proposals, documents and policies developed by the U.S. government and others in reaction to the attacks of September 11, are allimportant code words in the vocabulary of public emergency. These terms coalesce around the idea of an imminent, undeniable threat to national security that is believed to justify extraordinary and highly exceptional government action. We shall want to evaluate the appeals to public emergency, particularly as related to the U.S. campaign against terrorism, in the light of the standards and institutions of international order. But before doing that, we first need some general orientation. 4 See the revealing account of James Taub, “Who Needs the U.N. Security Council?” New

York Times Magazine (November 17, 2002), pp. 46ff.

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Public Emergency and International Order: The Nazi Background It is not going too far to suggest that the whole system of international rules and institutions associated with the United Nations Charter, including human rights and humanitarian law – all, to a large extent, the product of World War II – constituted a concerted and definitive response to a massive abuse of an appeal to public emergency. It was, afterall, article 48 of the Weimar Constitution – the emergency article – that facilitated Adolf Hitler’s rise to power in Germany, and thereafter provided him with the opportunity to bring an end to the Weimar Republic and to replace it with the Third Reich. Article 48 provided “an unprecedentedly broad basis for the exercise of emergency authority”, by which the chief authority could suspend civil rights “with almost no limit,” including judicial review. On the strength of executive discretion alone, the article permitted extensive censorship, widespread searches and seizures, secret and unlimited detentions, and the establishment of irregular tribunals to prosecute individuals suspected of threatening national security. In the words of one observer, “the power of article 48 goes very far. But when we consider the events of these days, we shall find that this power is born out by the necessity of our time. It gives to the President a strong weapon which we cannot renounce under any circumstances.” On the basis of article 48, Hitler’s immediate predecessors accommodated him by relaxing restraints on the use of strongarm methods and intimidation, policies that facilitated Hitler’s acquisition of power. By the time he was appointed Chancellor in January 1933, he was able with relative ease to act on his claim that Germany was confronted with a permanent emergency, a view he had outlined in the last chapter of Mein Kampf, entitled, “Necessity [or Emergency] Defense as Right.”5 When a nation is mortally threatened by enemies within and without, as Hitler believed Germany to be in the early 30s, the nation’s only recourse, he thought, is to turn to the old adage, ‘necessity knows no law.’ Consequently, article 48 conformed perfectly to his basic philosophy, which was, in effect, that anything and everything is justified when the life of the nation is at fundamental risk. The right of national self-defense trumps every other right, without qualification. Hitler’s trademark ‘Fuehrer principle,’ according to which all authority flows from the ‘leader’ down, is but an adaptation of a military model, which, Hitler believed, is the only appropriate pattern of organization in time of public emergency. When a nation is under imminent attack, there is no time for the niceties of democratic deliberation, or the protection of individual rights and freedoms. These must all be eagerly sacrificed in a wider, more compelling cause. 5 Adolf Hitler, Mein Kampf, trans. by Ralph Manheim (Boston: Houghton Mifflin Co.,

1971), ch. 15. Though the translation I offer in the text changes the title of the chapter (“The Right of Emergency Defense”), as it appears in this volume, it is more in accord with the original German: “Notwehr als Recht.”


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Hitler reenforced his thoughts on public emergency with a collectivist theory regarding the supremacy of what he called, das Volk (the people). “National Socialism,” he said, “takes as the starting point…neither the individual nor humanity…[but] das Volk…The individual is transitory, the Volk is permanent…National Socialism…desires to safeguard the Volk, even at the expense of the individual.”6 These ideas all converged in Hitler’s grand geopolitical vision that Germany could only successfully protect its national security – could only properly defend itself under conditions of emergency – by dominating other countries. As he put it, “the right to possess soil can become a duty if without extension of its soil a great nation seems doomed to destruction…Germany will either be a world power or there will be no Germany.”7 So understood, preemptive invasions of neighboring countries like France, Poland, and Norway are nothing but exercises in the ‘right of self-defense’ against ‘imminent threats,’ since the continued existence of such countries as sovereign entities is itself taken to imperil mortally Germany’s national security. All this, of course, provided a rationale for what might well be called Hitler’s Reign of Terror in the 1930s and 40s, both inside Germany and abroad, or for the record of what the Preamble to the Universal Declaration of Human Rights calls “barbarous acts which shocked the conscience of mankind.” And that record, in turn, constituted the frame of reference for developing, after World War II, the rules and institutions of international order, including the United Nations Charter, and human rights and humanitarian law.

‘Hitler’s Epitaph’ Louis Henkin has aptly referred to the UN Charter as ‘Hitler’s epitaph’, but it seems appropriate to expand the reference to include human rights and humanitarian law, as well. In one way or another, all these instruments, and the institutions that support them, were designed to redefine forever the permissible limits of, and reasons for, the use of force, so that what Hitler had wrought in the midtwentieth century, or anything close to it, might never again occur. The Preamble to the UN Charter makes clear the determination “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind;… [and] to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest….” Accordingly, the fundamental purposes of the UN include, among other things, the maintenance of “international peace and security, and to that end, [taking] effective collective measures for the prevention and removal of threats to the peace and for the suppression of acts of aggression or other breaches of 6 Hitler, Speech at the Nazi Harvest Thanksgiving Celebration at Buckeburg, 7

October,1933; cited in Bullock, Hitler, p. 401. 7 Cited in William Ebenstein, Man and the State (New York: Reinhart & Co., 1948), pp.

591-92.

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the peace, and [bringing] about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace….” In the light of the history of the Nazi experiment, a primary objective of the post-war international order was to prohibit the arbitrary use of force among nations, by coordinating all decisions involving force with “collective measures for the prevention and removal of threats to the peace and for the suppression of acts of aggression or other breaches of the peace…” (emphasis added). The point is particularly clear in reference to appeals to the right of national selfdefense, and of determining what constitutes a bonafide threat to national security, ‘rights,’ as we saw, that were systematically and grossly abused by Hitler. Article 51 of the Charter, which clearly acknowledges “the inherent right of individual or collective [national] self-defense” in response to “an armed attack,” nevertheless explicitly subordinates that right to the authority of the UN Security Council. Any state invoking the right to use force in self-defense must immediately report such action to the Security Council, and may proceed as it sees fit only “until the Security Council has taken measures necessary to maintain international peace and security.” Moreover, article 39 expressly ascribes to the Security Council the ultimate authority to “determine the existence of any threat to the peace, breach of the peace, or act of aggression, and shall make recommendations, or decide what measures shall be taken….” In making sure that “armed force shall not be used, save in the common interest,” these provisions unmistakably ‘internationalize’ the whole idea of national self-defense. They represent, therefore, nothing less than a conceptual revolution in the vocabulary of public emergency, which preeminently encompasses appeals to national self-defense, as we noted. Henceforth, nations do not, in theory, retain ultimate or absolute authority over what constitutes a threat to their national security, or over how far they may go in responding to it. Appeals to emergency in international relations are once and for all limited by the rules and institutions of the new international order that was established after 1945. Unquestionably, there lurks behind these radical innovations a spirit of profound apprehension about the ‘dark side’ – the vast potential for abuse – that inevitably accompanies appeals to public emergency. If the UN Charter focuses primarily on the use of force outside a country’s borders, human rights law, consisting of what is by now an expansive array of instruments mandated under the auspices of the United Nations, focuses on a state’s use of force inside its borders. Human rights instruments are, at bottom, designed to provide limits concerning the domestic use of coercion – to restrict, that is, how far states may legitimately go in prosecuting, confining, and punishing citizens and resident aliens, as well as in inhibiting and controlling the economic, political, religious and other interests of people living within their borders. As in the case of the UN Charter, the Nazi record stands as the decisive ‘negative model,’ in reaction to which the provisions set out in the UN Declara-


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tion of Human Rights – the definitive document for all subsequent UN human rights instruments – were self-consciously formulated.8 Of special pertinence is the ‘emergency clause,’ article 4 of the ICCPR, mentioned earlier. It states (in part): 1. In time of public emergency which threatens the life of a nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the grounds of race, color, language, religion, or social origin. 2. No derogation [among others] from articles 6. [prohibition of arbitrary life-taking], 7. [prohibition of the use of torture, cruel, unusual or degrading treatment or punishment], 8. [prohibition of enslavement], and 18 [protection of freedom of thought, conscience, religion or belief] may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary General of the United Nations, of the provisions from which it has derogated and of the reasons why it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation. If there is any suspicion that public emergency is unimportant from the perspective of human rights law, or that an intense concern to reduce the potential for abusing emergency appeals is absent from the law, this article should remove such suspicion once and for all. The article is specifically designed to avoid several of the most egregious forms of offense and violation associated with Hitler’s record. One was his contempt for international public scrutiny of his allegations concerning the state of emergency Germany faced. Another was his willful failure to disclose (and justify) which of Germany’s laws were being suspended and why. Last and most abhorrent was his practice of flagrantly disregarding the ‘laws of humanity,’ which indubitably, if at the time imperfectly, prohibited certain elemental forms of human mistreatment.

8 See Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting,

and Intent (Philadelphia: University of Pennsylvania Press, 1999). In his analysis of the drafting process, Morsink states that “I have dealt…with the absolutely crucial factor of the Holocaust, for without the delegates’ shared moral revulsion against that event, the Declaration would never have been written” (pp. xiii-xiv).

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In response, article 4 was formulated to require public accountability, full disclosure, and the observance of basic standards of human decency in face of public emergency. Paragraph 2., conceding, as it does, the need to suspend some rights (outside of those that are ‘nonderogable’ or unabridgeable), provides for substantial flexibility in regard to state action during emergencies. It thus acknowledges the peculiar difficulties states confront in such circumstances, and thereby displays a significant degree of ‘realism.’ At the same time, the principles of public accountability, full disclosure, and observance of basic standards of human decency, embedded in the article, place a huge burden of proof on governments so as to inhibit the nearly uncontrollable urge to exceed the bounds of propriety and decency in times of exceptional threat. Finally, humanitarian law is itself but a special form of emergency law, and is, accordingly, an important supplement to human rights law. As it developed, from the latter nineteenth century up through the post-World-Two period, humanitarian law has come to define the standards of permissible treatment of both combatants and noncombatants under the ‘exceptional circumstances’ created by armed combat. “[Humanitarian law and human rights law] are mutually complementary, and admirably so…[They have] the same historic and philosophical origin[:]…to protect the human person against [menacing] hostile forces…This common origin gave rise to two distinct efforts: to limit the evils of war and to defend [human beings] against arbitrary treatment. In the course of centuries these two efforts have developed along parallel lines. It is recognized that human rights represent the most general principles, whereas humanitarian law has a particular and exceptional character, since it enters into force at the precise moment when war intervenes to prevent or limit the exercise of human rights. The two juridical systems are different. Whereas humanitarian law takes effect only in the event of armed conflict, the law of human rights is of practical application most of all in peacetime and its instruments have clauses providing for derogations in the event of war. In addition, human rights relate essentially to relations between the State and its own citizens, and humanitarian law the relations between the State and the citizens of its adversary.”9 Indeed, the substitution of the term ‘humanitarian law’ in the 1950s for what were known previously as the ‘laws of war’ demonstrates the influence of the idea of human rights.10 For one thing, the Geneva Conventions of 1949 speak explicitly of the ‘rights of protected persons,’ whereas earlier formulations of the 9 Jean Pictet, Development and Principles of International Humanitarian Law (Dordrecht:

Martinus Nijhoff Pubishers, 1985), p. 3 (emphasis added). 10 See Schindler, “Human Righs and Humanitarian Law,” p. 935.


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laws of war had alluded “merely to the obligations of the contracting [state] parties.”11 The link between human rights and humanitarian law was made official in 1968 when the UN adopted a resolution calling the laws applicable in time of war, significantly, “Human Rights in Armed Conflict.”12 Moreover, the Geneva Conventions, and particularly the Fourth, dramatically extend protection of the rights of civilians affected by armed combat in a territory either under attack or under belligerent occupation.13 Article 3., common to all four Geneva Conventions, is particularly important in applying certain fundamental human rights to “persons taking no part in the hostilities, including members of armed forces who have laid down their arms and those placed [outside of combat] by sickness, wounds, detention, or any other cause.” Such persons shall be absolutely protected against extra-judicial killing and “violence to life and person, in particular murder, mutilation, cruel treatment and torture…,” among other things. Of special relevance to the subject of ‘terrorism’ and ‘acts of terror,’ are several passages from the body of humanitarian law, one that is common to the two 1977 Additional Protocols to Geneva Conventions, and one at article 33 of the Fourth Geneva Convention, which prohibits collective punishments.14 These articles are, of course, simply specifications of common article 3, just mentioned. Articles 51 of Protocol I and 13 of Protocol II state: The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population are prohibited. [Such acts in reprisal are also prohibited.] Article 33 of the Fourth Geneva Convention states: Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. It is obvious that, again, the infamous record of Hitler’s campaign of terror during World War II, and particularly, in this case, of his military, provides the background against which these provisions were formulated. Although the definition of ‘terrorism’ is ordinarily confined to attacks “carried out by…a non-state group, operating clandestinely, and without uniform or insignia,”15 these passages make clear that ‘acts of terror,’ and, indeed, the word 11 Ibid. 12 Final Act of International Conference on Human Rights, UN Doc. A/CONF. 32/41

(1968). 13 Jean Pictet, Commentary, IV Geneva Convention, Relative to the Protection of Civilians

in Time of War (Geneva: International Committee on the Red Cross, 1958), p. 3. 14 The humanitarian law 15 Adam Roberts, “Defining Terrorism,” p. 2, unpublished ms. which Professor Roberts

kindly shared with the author.

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‘terrorism’ itself – namely, direct and deliberate attacks against defenseless civilians (as well as combatants ‘outside combat’) that are intended to intimidate and thus to compel acquiescence or support – can apply to members of the armed forces, as well. “[I]f committed by a belligerent in a war, [such acts] would constitute violations of the laws of war.”16 Acts of that kind perpetrated by non-state, clandestine actors, while technically not covered by humanitarian law,17 would nevertheless classify as violations of both domestic and international law. “In extreme cases [such] actions may constitute ‘genocide’ or ‘crimes against humanity.’ These terms are defined respectively by the 1948 Genocide Treaty, particularly article IV, which extends liability to ‘private individuals,’ and the 1998 Rome Statute of the International Criminal Court, particularly article 7, which designates acts such as murder or extermination as ‘crimes against humanity,’ insofar as they are “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”18

Religion, Terrorism, and the Emergency Appeal It is of the greatest interest that Osama bin Laden and his followers provided, in effect, a religious version of an emergency appeal, connected in a circuitous way to national security, in defense of attacks such as occurred on September 11, and as are threatened to recur in the future.19

16 Ibid., p. 3. 17 The Geneva Conventions apply only to state actors, and the Additional Protocols pertain

to states and “organized armed groups” engaged in “sustained and concerted military operations.” 18 The Rome Statute of the International Criminal Court (www. Un.org/law/icc/statute/99_corr/l.htm). Cf. Roberts, “Defining Terrorism,” p. 3. There is some ambiguity regarding the applicability of the Rome Statute to the attacks of September 11. In his article, “Staying the Course with the International Criminal Court,” Cornell International Law Journal Vol. 35 (Nov. 2001-Feb. 2002), David Scheffer remarks on p. 83 (sect. 6) that “nothing in the ICC Treaty requires the inclusion of crimes of terrorism….” The issue, he says, need only come up at the seven-year review conference if States Parties desire to take it up then. He goes on to say (on p. 84) that the 9/11 attacks “may make discussion of the crime of terrorism as a new crime for the ICC more plausible in the future” (emphasis added). However, on p. 49, Scheffer asserts that the 9/11 attacks “were crimes against humanity that probably would have fallen within the jurisdiction of the ICC had the Court existed on that date” (emphasis added). And on fn. 6 (on p. 49), he says, the 9/11 attacks “would appear to meet the criteria for crimes against humanity…” (emphasis added). These statements would appear consistent with a plain reading of the text (see esp. art. 7). Moreover, it is clear that UN officials, such as former High Commissioner of Human Rights, Mary Robinson, have so understood the Rome Statute, as Scheffer himself acknowledges, (fn. 6, p. 49) (see below, pp. 21-22). 19 See John Kelsay, “Bin Laden’s Reasons,” Christian Century (February 26-March 6, 2002), pp. 26-29.


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In his fatwa (authoritative declaration), “Jihad Against Jews and Crusaders,” issued on February. 23, 1998, bin Laden and his associates speak of the ‘grave situation’ that Muslims now confront, caused by such activities as the following: “First, for over seven years the United States has been occupying the lands of Islam in the holiest of places, the Arabian peninsula, plundering its riches, dictating to its rulers, humiliating its people, terrorizing its neighbors, and turning its bases in the Peninsula into a spearhead through which to fight the neighboring Muslim peoples. If some people have in the past argued about the fact of the occupation, all the people of the Peninsula have now acknowledged it. The best proof of this is the Americans’ continuing aggression against the Iraqi people using the Peninsula as a staging post, even though all its rulers are against their territories being use to that end, but they are helpless. Second, despite the great devastation inflicted on the Iraqi people by the Crusader-Zionist alliance, and despite the huge number of those killed, which has exceeded one million – despite all this the Americans are once again trying to repeat the horrific massacres, as though they are not content with the protracted blockade imposed after the ferocious war or the fragmentation and devastation. So here they come to annihilate what is left of this people and to humiliate their Muslim neighbors. Third, if the Americans’ aims behind these wars are religious and economic, the aim is also to serve the Jews’ petty state and divert attention from its occupation of Jerusalem and murder of Muslims there. The best proof of this is their eagerness to destroy Iraq, the strongest neighboring Arab state, and their endeavor to fragment all the states in the region such as Iraq, Saudi Arabia, Egypt and Sudan into paper statelets and through their disunion and weakness to guarantee Israel’s survival and the continuation of the brutal crusade occupation of the Peninsula. All these crimes and sins committed by the Americans are a clear declaration of war on Allah, his messenger, and Muslims…. [Consequently, the] ruling to kill the Americans and their allies – civilians and military – is an individual duty for every Muslim who can do it in any country in which it is possible to do it….”20 The “war on Allah, his messenger, and Muslims,” being perpetrated by the U.S. and its allies is understood to constitute an overwhelming threat to the national security of Muslim states, whose responsibility it is to defend the faith and the 20 Ibid., pp. 28-29.

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holy sites and territory of Islam. It is, by implication, such an extreme emergency, such a catastrophic case of ‘necessity,’ that justifies what, from an Islamic point of view, is an extraordinary prescription to launch deliberate and direct attacks against civilians. Similar reasoning exists in the al Quaeda operations manual, “Military Studies in the Jihad against the Tyrants.” The manual poses the question, how a Muslim spy can live among enemies while failing openly to practice duties to God, and to acknowledge Islamic identity? The manual’s answer is that if “a Muslim is in a combat or godless area, he is not obligated to have a different appearance from those around him. Resembling the polytheist in religious appearance is [allowed because] ‘necessity permits the forbidden,’ even though [forbidden acts] are basically prohibited.”21 Other examples from the literature of Islamic extremism make the same point. A text called The Neglected Duty, composed by the Islamic Jihad, who were responsible for the assassination of the president of Egypt, Anwar Sadat, in 1981, and the charter of Hamas, the militant Palestinian organization, both contend that standard prohibitions ordinarily covering the protection of unarmed civilians must be suspended or ‘stretched’ under conditions of necessity.22 It is important to emphasize that suspending the protection of civilians in the name of necessity is by no means uniformly accepted among Muslims or Muslim authorities. Countless Muslim leaders and scholars of Islam have categorically denied “that crisis situations facing Muslims have [ever] been considered sufficient reason to override the provision against direct targeting of noncombatants.”23 A purported saying of Mohammed is frequently quoted in this connection: “Whenever [Mohammed] sent forth an [armed] detachment, he said to them, ‘Do not cheat, or commit treachery, nor should you mutilate or kill children, women, or old men.’” The blanket prohibition of ‘treachery’ is interesting, especially when compared with the excuses the al Quaeda manual gives for deceiving an enemy. Furthermore, Islamic scholars have also challenged the authority of someone like bin Laden to utter a fatwa in the first place.24 But, however sharp the divisions within the Islamic community are over attitudes toward the September 11 attacks, there remain among Muslims some unresolved controversies associated with the broader aspects of terrorism, that are, as a matter of fact, also applicable well outside the Islamic community. The 21 Cited in International Herald Tribune of the world most severely in violation of the rule

of law, democracy and human rights, these two regimes would indisputably stand out. 22 See John Kelsay, Islam and War, 23 Kelsay, “Bin Laden’s Reasons,” p. 29. 24 There is an additional problem with bin Laden’s emergency appeal, from a human rights

point of view. The ideal Islamic nation, whose security he believes to be so profoundly imperiled, and in defense of which the acts of September 11 were apparently performed, is best signified by the two regimes he has specifically identified with, provided with substantial financial support, and from whom he has received sanctuary: the National Islamic Front government of Sudan, and the Taliban government of Afghanistan. Among the regimes of the world most severely in violation of the rule of law, democracy and human rights, these two regimes would indisputably stand out.


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principal controversy, focused in the debates over current instances of Palestinian terrorism, is whether terrorism is ever excusable. One response, which claims that direct and intentional attacks on defenseless civilians may be so excused if they have a just cause, a reasonable probability of success, and are undertaken as a last resort, is complicated by the fact that similar arguments are employed in defense of direct and intentional attacks against civilians carried out as official military policy, such as occurred toward the end of World War II in the allied fire bombings of Dresden, Germany or, as is often claimed, in the atom-bombing of Japan by the United States Air Force.25 If, as we noted above, state actors (state officials and military personnel) are equally liable along with nonstate actors (irregular, nonuniformed, clandestine persons) under international law prohibiting ‘crimes against humanity,’ then it is clear that reasons believed to mitigate responsibility in one case will also have to be considered in the other. Insofar as it is regarded as excusable for an army to attack civilians in circumstances believed to offer no other feasible defense, then there seems no good reason to deny that that argument should be available to nonstate actors in what are taken to be similar circumstances.26 This perplexity is one of the important ‘loose ends’ of the discussion over terrorism and public emergency. It urgently invites further moral and religious reflection by Muslims, to be sure, but also by other religious groups and concerned citizens, as well.

The U.S. Example We come to the subject of evaluating the United States as to its compliance with the rules and institutions of international order in responding to the public emergency created by the terrorist attacks of last year, and by the continuing threat of new attacks. There are several reasons for paying special attention to the United States. Its enormous and virtually unchallenged military and economic might undoubtedly sharpens the temptation, under emergency conditions, to overreact and transgress the bounds of propriety. With apologies to Lord Acton, if power corrupts, super-power may well ‘super-corrupt.’ Furthermore, the United States does not have a particularly distinguished record in coping with national emergencies.27 James Madison eloquently foresaw the problem in 1798: “Perhaps it is a universal truth,” he said, “that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad.” Finally, because of its unrivaled position, the United States has a golden opportunity to set a good example for the rest of a world increasingly tempted to take advantage of the threat of terrorism for untoward purposes. 25 Glover, Walzer 26 I have put forward here a composite argument constructed out of discussions of terrorism

I have recently participated in at the United Nations and elsewhere. 27 William Brennan.

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Overall, the U.S. record is distressingly mixed. To be sure, it is not all bad. Nine days after the attacks, President Bush correctly stated that the campaign against terrorism is “not just America’s fight. And what is at stake is not just America’s freedom. This is the world’s fight.”28 Furthermore, President Bush and Secretary Powell have on several occasions explicitly acknowledged the relevance of the United Nations. On November 10, in a speech before the UN, the president reiterated that “every nation has a stake in this cause,” and called for the broadening of the international coalition to fight terrorism. He also stated that “the most basic obligations of this new conflict have already been defined by the UN,” including the responsibility to share intelligence and coordinate law enforcement efforts. “When we find terrorists,” said the president, “we must work together to bring them to justice.” The president also committed the U.S. to “work with the UN to support a postTaliban government that represents all of the Afghan people” (in accord with Security Council Resolution 1378).29 Secretary Powell gave a similar speech at the UN the following day, adding this important thought: “No greater threat to international peace and security exists in the world today [than terrorism]. And, through this body, we have established and are establishing the tools to build a more robust defense." On the eve of the fifty-third anniversary of the Universal Declaration of Human Rights, President Bush issued the following statement: “The terrible tragedies of September 11 served as a grievous reminder that the enemies of freedom do not respect or value individual human rights. Their brutal attacks were an attack on these very rights.” The president called on “the people of the United States to honor the legacy of human rights passed down to us from previous generations and to resolve that such liberties will prevail in our nation and throughout the world as we move into the 21st century.”30 In issuing the U.S. State Department’s Country Reports on Human Rights Practices on March 4, 2002, Secretary Powell remarked that “[t]oday, as America stands firm against terrorism with countries all around the world, we also affirm what our nation has stood for since its earliest days; for human rights, for democracy and for the rule of law. The worldwide promotion of human rights is in keeping with America’s most deeply held values…The Bush administration is working in cooperation with governments, intergovernmental organizations, non-governmental groups and individuals to help bring human rights into compliance with international norms…[W]e will not relax our commitment to advancing the cause of human rights.”31

28 Speech before for a joint session of Congress, September 20, 2001. 29 See fn. 41 , below. 30 President Proclaims Human Rights Day & Bill of Rights Week, 9 December, 2001. Cited

in “USA: Treatment of Prisoners in Afghanistan and Guantanamo Bay Undermines Human Rights. International Memorandum to the US Government,” Amnesty International On-Line, May 4, 2002 (http://www.amnesty.org), p.4. 31 Ibid., p. 5.


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On February 20, 2002, US Ambassador at large for war crimes, PierreRichard Prosper announced US policy in regard to the detainees in US custody that were apprehended during the fighting in Afghanistan: “In bringing these abusers to justice the United States will continue to honor and uphold the rule of law and work within the norms of the global community in answering the challenge that faces us all. In so doing we will continue to uphold relevant legal standards of treatment with respect to the detainees in our custody.” The policy was reaffirmed by U.S. military authorities at Guantanamo Bay on February 28: “The detainees will continue to be treated fairly but firmly in accordance with international conventions.”32 These solemn utterances by the Bush administration concerning the relevance of human rights and humanitarian law to the campaign against terrorism – and particularly the president’s statement that the strikes of September 11 “were an attack on these very rights” – are fully consonant with the judgment of former UN High Commissioner of Human Rights, Mary Robinson: “In the aftermath of the catastrophe of 11 September the human rights voice must be heard. The thousands of civilians who died in this atrocity lost the most precious of rights, the right to life. Those responsible for these cruel deaths must be made individually accountable for the crimes against humanity they perpetrated.”33 Moreover, the United States has, up to a point, complied with its responsibilities as a member of the United Nations. On October 7, 2001, the United States duly informed the Security Council of its intention to respond to the attacks of September 11 by employing armed force against “Al Quaeda terrorist training camps and military installations of the Taliban regime in Afghanistan” in order “to prevent and deter further attacks on the US.” The United States cited article 51 of the UN Charter, authorizing “the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the UN, until the Security Council has taken measures necessary to maintain international peace and security.”34 Significantly, the United States received conclusive UN authorization for its use of armed force against the Taliban government of Afghanistan in response to the attacks of September 11.35 On September 12, the Security Council had

32 Ibid., p 5. 33 Statement at the International Conference on Human Rights and Democratization, at

http://www.unhchr.ch/huricane/huricane.nsf/view01/Oct 8, 2001; cited in Scheffer, “Staying the Course with the International Criminal Court,” fn. 6., p. 49 (emphasis added). See fn. 19, above. 34 “Negroponte Letter to the UNSC President,” U.S. Department of State International Information Programs (Oct. 7, 2001) http://www.usinfo.state.gove/topical/pol/terror/ 01100813.htm. 35 See Eric P.J. Meyer and Nigel D. White, “The Twin Towers Attack: An Unlimited Right to Self-Defence?” Journal of Conflict and Security Law (2002) Vol. 7 No. 1, p. 5-17 for a discussion of the legality of acts of self-defense undertaken by the U.S. in response to the attacks of September 11. While the authors concede the UN Security Council authorized armed response against the Taliban, they express concern regarding the failure of the

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adopted Resolution 1368 that did several things: It implied ‘broad support’ for the idea that the events of September 11 constituted an ‘armed attack’ under the UN Charter. As such, the resolution “implicitly recognized that there existed a ‘Chapter VII situation’ thereby opening up the possibility of taking mandatory measures including, if necessary, the use of force.”36 It acknowledged the U.S.’s “inherent right of self-defense,” stressing “for the first time in UN history” that a terrorist attack is “a threat to international peace and security.”37 Finally, it called upon “the international community to redouble their efforts to prevent and suppress terrorist acts” and “to work together urgently to bring to justice the perpetrators, organizers, and sponsors of these attacks.”38 Two weeks later, the Security Council followed with a second anti-terrorism resolution (1373), which enjoins all states to “prevent and suppress the financing of terrorism, as well as criminalize the willful provision or collection of funds for such acts.”39 Still later, the Security Council ratified the outcome of the military action in Afghanistan by adopting Resolution 1378, which committed the UN to support “the efforts of the Afghan people to replace the Taliban regime….”40 On several occasions, UN Secretary General Kofi Annan reaffirmed UN authorization for the military action in Afghanistan by publicly citing and commending these resolutions.41 Finally, President Bush’s September 12, 2002 speech to the UN, strongly supported by Secretary Powell, announcing his decision to work with the Security Council toward disarming Iraq of its weapons of mass destruction, was a significant example of international collaboration. This record of compliance and engagement with the international order on the part of the Bush administration, makes all the more glaring a contradictory pattern of obstinacy and recalcitrance that, if anything, threatens to outweigh the positive side. That pattern typically consists of initial disregard or defiance toward international institutions and norms, sometimes followed, under pressure, by reluctant, even grudging, acquiescence. Such behavior suggests that the Bush

36 37

38

39 40

41

Security Council to place limits around the doctrine of self-defense as employed by the United States. (See fn. 55, below.) pp. 8, 5-6. Statement by Jean-David Levitte, French Ambassador to the UN, who was president of the Security Council when Resolution 1368 was adopted. James Traub, “Who Needs the U.N. Security Council?,” pp. 47-48. See, also, “UN Resolution Gives U.S. Right to Use Force, Envoy Says,” International Information Programs (September 24, 2001). http://www.usinfo.stat.gov/topical/pol/terror/01092422.htm, p.1. “UN Security Council Condemns Terrorist Attacks on U.S.,” International Information Programs (12 September, 2001), http://www.usinfo.stat.gov/topical/pol/terror/01091221.htm, p. 1. “UN Security Council Anti-Terrorism Resolution,” International Information Programs (September 28, 2001) http://www.usinfo.stat.gov/topical/pol/terror/1092902.htm. “UN Security Council Resolution 1378 on Afghanistan,” ,” International Information Programs (Nov. 14, 2001) http://www.usinfo.stat.gov/topical/pol/terror/01111505.htm, p. 1. “U.N. Secretary-General Affirms U.S. Right to Self-Defense,” International Information Programs ((Oct. 8, 2001) www.usinfo.state.gove/topical/pol/usandun/01100903/htm.


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administration has not clearly or consistently understood a fundamental objective of the existing international order – to restrain the abuse of power under conditions of emergency. Nor does it go very far to exemplify the degree of wisdom and sensitivity on the part of the U.S. government that are called for under ‘worldwide emergency conditions’ generated by terrorism. Indeed, the underlying unilateralist predispositions of the Bush administration are by now beyond dispute.42 “Legitimacy, for at least most members of the Bush foreign-policy team, [arises] from a clearheaded assessment of [U.S.] national interest; little could be expected from the UN, a moralistic body sqeamish about the exercise of power and largely hostile to American interests.”43 As noted above,44 the administration’s own definitive grand plan, the “National Security Strategy of the United States,” unflinchingly pictures the U.S. government as the ultimate arbiter and guarantor of international order. Such, apparently, has been the conviction of individuals like Paul Wolfowitz and Richard Perle, long associated with Vice-President Cheney, and now highly influential in the Bush administration.45 Even Secretary Powell, usually pictured as the lone defender of multilateralism within the administration, is himself ultimately loyal to what might be called a doctrine of preemptory unilateralism. Commenting on a possible breach by Iraq of Security Council Resolution 1441, which recently authorized an intrusive weapons inspections regime in Iraq, Secretary Powell stated that whatever the Security Council may decide, the U.S. “will reserve our option of acting” and will “not necessarily be bound by what the Security Council might decide on that point.”46 The internal debate between him and the rest of the administration would appear to be limited to differences over how prudent it is or is not in a given case “to enlist the support of the international community.” All sides in the administration agree that such counsel, provisionally mentioned in the national security strategy document, is entirely a matter of discretion on the part of the United States. There is no division of opinion over the ‘right’ to ultimate unilateral U.S. authority. In two of his most definitive speeches regarding America’s response to terrorism – an address to a joint session of Congress on September 20, 2001 and the State of the Union message on January 2, 2002 – President Bush manifested his own commitment to the doctrine of preemptory unilateralism. He never once in either speech mentioned the United Nations or United States’ obligations under human rights or humanitarian law. In addition, apart from the occasional 42 See, for example, Michael Hirsh, “Bush and the World,” and John Ikenberry, “The Lures

of Preemption,” in Foreign Affairs (September/Octoboer 2002). 43 James Traub, “Who Needs the U.N. Security Council?,” p. 49. 44 See p. 3, above. 45 See Anatol Lieven’s perceptive and disturbing analysis of the present Bush foreign policy,

“The Push for War,” London Review of Books (Oct. 3, 2002), available at www.MiddleEast.Org, p. 4. 46 Quoted in Michael J. Glennon, “How War Left the Law Behind,” New York Times (Nov. 21, 2002), emphasis added.

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references by Secretary Powell and Ambassador Prosper, mentioned above, the importance of the international order has not been a prominent theme in the public statements of the chief foreign policy officials of the administration. Indeed, in the case of U.S. policy toward Iraq, Secretary Rumsfeld and VicePresident Cheney, supplemented by a number of statements from the president and the National Security advisor, Condoleeza Rice, set the initial tone with uncompromising observations about why the U.S. must solve the problem of Iraq, quite on its own if need be, and on terms, including ‘regime change,’ that it should dictate. The original formulations explicitly evaded the need for new congressional or Security Council authority. Such unbending unilateralism was of course not well-received at home or abroad, and the Bush administration, true to pattern, reluctantly acquiesced to a more collaborative mode of operation. It finally agreed to submit its case to Congress and the Security Council, while still recommending resolution language that preserved for the U.S. wider discretionary authority than either body was initially happy with. In the Congress, a process of adjustment and compromise eventually produced a resolution somewhat improved for having tied the president’s action more closely to the UN Security Council process than the administration originally favored.47 At the same time, the resolution is still too open-ended, thanks, in large part, to the continuing influence of the advocates of unilateralism within the administration. The language does not, as it should, link the right of national selfdefense against Iraq to the U.S.’s continuing obligation, under article 51 of the Charter, to seek Security Council confirmation for any use of force. Nor does it sufficiently acknowledge the continuing, overriding authority of the Security Council, under article 39, to determine “any threat to the peace.” The abiding resistance on the part of certain members of the Bush cabinet, even after the decision was made to seek Security Council authority for using force against Iraq, further illustrates the strong counter-internationalist side of the adminstration. It is well known that Secretary Powell’s sensitive negotiations, including important concessions he was eventually forced to make in order to curry support from the French and other Security Council members, were frequently imperiled by the words and actions of other members of the Bush administration. Further complications resulted from the decision to release the

47 Cf. “Resolution that Congress Approved on the Right to Use Force in Iraq,” New York

Times (October 12, 2002), p. A10 with “Authorization for War: What the White House would like Congress to Say,” New York Times (September 27, 2002), p. A12. In contrast to the White House proposal, the final language incorporates into the binding portions of the resolution congressional support for efforts by the president “to strictly enforce through the United Nations Security Council all relevant…resolutions applicable to Iraq,” and “to obtain prompt and decisive action by the Security Council to ensure that Iraq abandon its strategy of delay, evasion and non-compliance and strictly complies with all relevant…resolutions” (emphasis added).


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National Security Strategy document, with its emphasis on the right of the United States to initiate unilateral, preemptive strikes as it might see fit to do.48 To be sure, the Bush administration’s pattern of ‘reluctant engagement’ with the United Nations over the Iraq matter is consistent with the doctrine of preemptory unilateralism stated in the National Security Strategy document, and elsewhere. That doctrine clearly regards international institutions as instrumental in the service of ends determined by the United States to be worth pursuing. As such, those institutions are to be employed and worked with so far as they are useful to United States interests and ideals. As we saw, whatever divisions there are within the administration are restricted to questions of the relative utility of these institutions in given instances. On the one hand, this doctrine of preemptory unilateralism helps explain the administration’s initial defiance, mixed occasionally with grudging reluctance, toward cooperating with the UN. It also explains the half-hearted and inconstant public acknowledgment of UN authority, including Secretary Powell’s ultimate reservations on that subject, despite his provisional commitment toward working with the UN. At bottom, the doctrine unquestionably represents a deep and radical challenge to the foundations of the United Nations Charter. On the other hand, the Bush administration has, significantly, refrained from consistently and univocally embracing the doctrine of preemptory unilateralism as official policy. It has been willing, under pressure, to acquiesce, at least provisionally, to the imperatives of international collaboration, and it has done that for several reasons, some of which are in direct conflict with its unilateralist predilections. The administration has come to see that the campaign against terrorism in general, and the effort against Saddam Hussein, in particular, requires international cooperation, which, in turn, entails working through the UN. On occasion, the administration has argued that the best way to get the Security Council to live up to its mandate and its responsibilities in places like Iraq, is to threaten unilateral action. The argument is partly persuasive, because U.S. threats to act unilaterally have in fact prompted the UN Security Council to move to enforce its previous resolutions regarding the disarmament of Iraq. At the same time, the argument contains a fatal contradiction. For the U.S. to arrogate to itself the right to act on behalf of the Security Council, regardless of what the Security Council itself determines, would conclusively subvert the UN system and, thereby, undermine much of the basis for the international cooperation the US begins to understand it needs. It is precisely such a definitive unilateralist outcome that has disturbed world opinion, and generated pressure, both international and domestic, to restrain U.S. power. The prospect of a post-war Iraq indefinitely under the political and economic control of a United States acting essentially on its own, has all the earmarks of a neo-colonial undertaking. Worldwide apprehension only deep 48 “How Powell Lined up his Votes, Starting with his President’s,” New York Times

(November 9, 2002), pp. A1 and A9. See pp. 2-3 above.

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ens in response to suggestions by members of the Bush administration that overthrowing Saddam Hussein and democratizing Iraq is but the first step in “a strategic transformation of the whole region.”49 Such a geopolitical vision, combining neo-colonialism and neo-imperialism as it does, is most ominous. As Brian Urquhart has written, “An invasion of Iraq by the United States and Britain alone, even if it was a military success, could still have disastrous consequences,” such as diverting the campaign against terrorism, provoking extensive anti-Americanism, stimulating a new wave of terrorists, destabilizing weak governments, and encouraging Islamic extremism.50 That the Bush administration lacks the experience, inclination, and aptitude for the kind of extensive nation-building that will be required in a post-Saddam Iraq only increases the gravity of the risks of unilateral U.S. action.51 Nor is the Japanese precedent for successful post-war reconstruction, which the administration and its supporters keep confidently invoking, at all apt, if only because a unilateral Iraq operation would lack the strong international legal and moral legitimacy that Japanese (and German) reconstruction enjoyed.52 Add to all this the uncertainty concerning the threat Iraq represents. It is not necessary to rehearse the details of the inconclusive debates surrounding Saddam’s nuclear capabilities, or his disposition to use them or other weapons, or his connections to terrorism, or his designs on the United States. The central point is that, on the basis of the evidence so far displayed, it is impossible to be sure about a number of key concerns. Under conditions of uncertainty, it is prudent to find policies that reduce uncertainty, as the inspections program authorized by Security Council Resolution 1441 is clearly intended to do. Should that program finally be thwarted by Saddam, he will be thwarting a collective policy, and, presumably, face a collective response. In face of the enormous risks of unilateral U.S. action, that is a decisive difference. Even if it were true, as has recently been argued, that the record of violation of the UN Charter provisions regarding the use of force has sharply eroded, if 49 Bill Keller, “The Sunshine Warrior,” New York Times Magazine (Sept. 22, 2002), p. 51. 50 Brian Urguhart, “The Prospect of War,” New York Review of Books XLIX, 20 (December

19, 2002), p. 20. Cf. Thomas Caruthers, “Promoting Democracy and Fighting Terror,” Foreign Affairs (Jan.-Feb., 2003), pp. 92-97. “But the expansive vision of a sudden, U.S.led democratization of the Middle East rests on questionable assumptions. To start with, the appealing idea that by toppling Saddam Hussein the United States can transform into a democratic model for the region is dangerously misleading…A U.S. invasion of Iraq would likely trigger a surge in the already prevalent anti-Americanism in the Middle East, strengthening the hand of hard-line Islamist groups and provoking many Arab governments to tighten their grip, rather than experiment more boldly with political liberalization” (pp. 92-93). 51 See Michael Ignatieff, “Nation-Building Lite,” New York Times Magazine (July 28, 2002), pp. 26ff. 52 Fouad Ajami calls the Japanese precedent for a post-Hussein Iraq “an important one,” in “Iraq and the Arabs’ Future, Foreign Affairs (Jan.-Feb. 2002), p. 15, where he supports, with some arresting qualifications, a U.S. invasion of Iraq. For a withering refutation of the relevance of post-World-War II Japanese reconstruction to the Iraq situation, see John Dower, “Iraq – Lessons Japan about War’s Aftermath, New York Times (Nov. 21, 2002).


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not destroyed, Charter authority, and that, as a matter of law, states may now arguably use force as they see fit,53 there is nevertheless an excellent reason under present circumstances for resisting such a conclusion, and for reversing course in the direction of reaffirming Charter provisions. That is the same reason that undergirded the creation of the post-World-War II UN Charter system, namely, the compelling concern, based on the Nazi record, to inhibit and restrain states from defining ‘imminent threats’ and ‘rights to self-defense,’ let alone rights to occupy and reconstruct countries by force, solely on their own authority. It would seem, in fact, that the Bush administration, as the result of its policy of ‘reluctant engagement’ with the UN, has gradually begun to succumb, if so far only partially, to some of the imperatives of the international system. Though there is no telling what the U.S. government may yet do, it will now, incontestably, be harder for it to initiate an invasion of Iraq in defiance of UN authority, and without substantial international support, whatever the law, strictly understood, may allow. If that is correct, there is some evidence that the international order, with all its shortcomings, has not entirely lost control of its fundamental mandate, namely, the restraint of impetuousness and arbitrariness regarding the use of force around the world. In respect to compliance with human rights and humanitarian norms, the Bush administration exhibits the same mixture of defiance, ambivalence and inconstancy, along with some of the same grudging acquiescence, that is manifest in its Iraq policy. While, as we noted, President Bush, Secretary Powell, and other officials have on occasion paid their respects to human rights and hu-

53 See Glennon, “How War Left the Law Behind.” Cf. a longer version of the article, “The

Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter 25 Harvard Journal of Law and Public Policy 539 (2002). The record would, especially recently, appear to be considerably more ambiguous that Glennon acknowledges. There is no doubt that NATO military action in Kosovo in spring, 1999, which completely disregarded the Security Council, constituted a repudiation of UN authority. At the same time, the action was significantly collective, was actively supported by most of the Balkan neighbors, and was informally upheld by none other than the UN Secretary-General, Kofi Annan, based on his repeated appeals to expand Charter authorization so as to permit armed humanitarian intervention. See David Little, “Force and Humanitarian Intervention: The Case of Kosovo,” in Wm. Joseph Buckley (ed.), Kosovo: Contending Voices on Balkan Interventions (Grand Rapids: Eerdmans Publishing Co., 2000), pp. 356-359. None of these conditions would apply to unilateral U.S. military action in Iraq. Furthermore, as we mentioned on pp. 25-26 above, Security Council resolutions in support of U.S. armed response to the attacks of September 11, 2001would appear to represent an important reassertion of Security Council authority in respect to the campaign against terrorism, even if the Council did not go far enough in exercising its supervisory authority: “When the Security Council fails to go beyond resolutions like 1368 and 1373, and does not engage itself actively to maintain peace and security, preferring instead a more remote attitude, it neglects its primary duty to restore and maintain peace and security.” Eric P.J. Meyer and Nigel D. White, “The Twin Towers Attack: An Unlimited Right to Self-Defence?”, p. 16.

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manitarian law standards, the U.S. government, to date, has been anything but a model of steadfastness in honoring its obligations. To begin with, the United States has failed, inexplicably, to comply with its responsibilities as an adherent to the International Covenant on Civil and Political Rights, by acting “immediately [to] inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated” (art., 4, para. 3). As we saw, the requirements of international public accountability and full disclosure, concerning the suspension of any and all civil protections under emergency conditions, lies at the heart of an international system designed to prevent anything close to a recurrence of the gross abuses associated with the Nazi record. A recent (implied) reprimand to the Bush administration from a respected, bipartisan commission that, “the United States should forthrightly address, rather than avoid, the policy tensions that arise when the imperatives of war against terrorism compete with human rights and democratic principles,”54 reaffirms the same urgent concern that underlies the relevant provisions of the International Covenant on Civil and Political Rights. As is now well-established, public accountability and full disclosure are not virtues the Bush administration has, in general, much use for.55 The USA Patriot Act,56 the centerpiece of the government’s post-September 11 ‘emergency legislation,’ which variously relaxes a variety of civil liberties inside the United States, is a very controversial law. Among other things, there are three particularly troubling aspects. 1. Arbitrary detention: Aliens may be held secretly, and virtually indefinitely, not for what they have done, nor on the basis of evidence supporting a probable cause that they are a risk to public order and safety, but typically for trivial offenses, and because they are regarded for some undisclosed reason as “a danger to national security.” “[O]ur country now jails large numbers of people not for what they have done, nor even with case-by-case evidence that it would be dangerous to leave them at liberty, but only because they fall within a vaguely defined class, of which some members might pose danger.”57 54 Enhancing U.S. Leadership at the United Nations; Report of an Independent Task Force

Sponsored by the Council of Foreign Relations and Freedom House, David Dreier and Lee H. Hamilton, co-chairs (New York: Council on Foreign Relations, 2002), p. 21. 55 Linda Greenhouse, “A Penchant for Secrecy,” New York Times, Week in Review (May 5,2002 ). 56 Its full (less than felicitous) title includes the following: “The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.” 57 Ronald Dworkin, “The Threat to Patriotism,” New York Review of Books (Feb. 29, 2002), pp. 44-49), p. 44. Dworkin elaborates: “If the Attorney General declares that he has ‘reasonable grounds’ for suspecting any alien of terrorism or of aiding terrorism in the broad sense that is defined, then he may detain that alien for seven days with no charge. If


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2. Guilt by Association. According to Patriot Act, organizations can be classified as ‘terrorist’ based on ‘classified evidence,’ which need never be made public because such disclosures might jeopardize national security. Consequently, noncitizens, and possibly American citizens, associated with such groups are liable under the Act, if they have contributed money or solicited membership, unless they can prove that they did not know or could not reasonably have known that the group is terrorist. That could be impossible to do, since the reason the group is called terrorist can remain undisclosed! “[O]ne potentional consequence of the Act could be to create ‘a broad new definition of ‘domestic terrorism’ that could sweep in people who engage in acts of political protest and subject them to wiretapping and enhanced penalties.’ This broad sweep of [the Act] conjures some scenarios by which entire religious groups might be identified as terrorist organizations and by which members of those religious groups might be identified without warrant as engaging in terrorist activity. For example, if two or more members of a church, unbeknownst to the wider congregation, conspire to bomb an abortion clinic, and in carrying out this act, a federal agent is killed, the Patriot Act implies that the entire church may be labeled a terrorist organization.”58 3. Expanded government authority for search and surveillance. The Patriot Act enlarges the permissible range of government surveillance, while minimizing traditional forms of judicial oversight.59 “Such secret searches were formerly permitted, pursuant to a special warrant for that purpose, only if the primary purpose of the search was to collect information about a foreign nation’s activities in this country. Now they are permitted if the primary purpose is to collect evidence of a crime that can be used in prosecution, so long as the intelligence gath-

the alien is then charged with any, even a wholly unrelated crime, and the attorney general finds that ‘the release of the alien will threaten the national security of the United States or the safety of the community or any person, he may be detained for six months and then for additional six-month periods so long as the attorney general continues to declare that his release would threaten national security or anyone’s safety. The Justice Department has now detained several hundred aliens, some of them in solitary confinement for twenty-three hours a day. None of them has been convicted of anything at all, and many of them have been charged with only minor immigration offenses that would not by themselves remotely justify detention. It has refused repeated efforts on the part of the ACLU, and other groups even to identify these detainees” (p. 44). 58 Derek H. Davis, “The Dark Side to a Just War: The USA Patriot Act and Counterterrorism’s Potential Threat to Religious Freedom,” Journal of Church and State 8,37 (Feb. 8, 2002), pp. 9-10. 59 Dworkin, “The Threat to Patriotism,” p. 44.

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D AV I D L I T T L E ering is a subsidiary purpose, as it can always said to be when a suspected terrorist’s property is searched.”60

In ways supplementary to the expanded emergency powers granted by the USA Patriot Act, and that raise related problems, the U.S. government has claimed the right to relax conventional civil protections in relation to three specific areas: subjecting aliens, arrested for immigration violations, to secret deportation hearings; indefinitely detaining individuals considered potential material witnesses in terrorism cases, and indefinitely detaining American citizens regarded as ‘enemy combatants’ on the side of terrorists, and denying them access to legal counsel.61 These various actions by the U.S. government have evoked strong criticism from a wide range of civil rights groups and legal authorities, and have had mixed support so far from the judicial system. Representatives of groups as politically divergent as the ACLU and the libertarian Cato Institute have converged in expressing grave doubts about the way the administration is balancing the imperatives of national security and civil rights. “No one can deny the fact,” stated the director of the Cato Institute, “that if the cycle of terrorist attack followed by government curtailment of civil liberties continues, America will eventually lose the key attribute that has made it great, namely, freedom…A free and independent people should not expect supernatural powers from their president.”62 Professor Rodney A. Smolla of the Richmond School of Law remarked that if [the administration] “would just go through the motions, suggest that they have some feel for due process, they would probably win instead of offending the judges,” and the supporting opinions of some recent court decisions have reflected that same sentiment. While conceding the government’s right to secure the national security during times of emergency, Judge Gladys Kessler, of the Federal District Court of Washington, DC, ruled in August, 2002 against the secret detention of hundreds of people arrested after September 11 because “the first priority of the judicial branch must be to ensure that our government always operates within the statutory and constitutional constraints that distinguish a democracy from a dictatorship.”63 In the same month, Judge Damon J. Keith of the Federal Appeals Court of Cincinnati similarly ruled that the Bush administration acted unlawfully by holding hundreds of secret deportation hearings. According to Judge Keith, a chief safeguard against governmental repression in time of national peril is the opportunity for public scrutiny of the government’s treatment of noncitizens. 60 Ibid. 61 “After Sept. 11, a Legal Battle on the Limits of Civil Liberty,” New York Times

(August 4, 2002), pp. A1, A20. 62 Cited in Linda Greenhouse, “The Imperial Presidency vs. the Imperial Judiciary,” New

York Times (September 8, 2002), sect. 4, p. 3. Cf. David Cole, “Fight Terrorism Fairly, New York Times (Oct., 19, 2002, p. A31. 63 Ibid.


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“The First Amendment, through a free press, protects the people’s right to know that their government acts fairly, lawfully, and accurately in deportation proceedings. When the government begins closing doors, it selectively controls information rightfully belonging to the people.”64 A recent decision in a Manhattan federal court concerning the continuing detention of a U.S. citizen, Jose Padilla, as a terrorist suspect, had the effect of partially overriding the government’s interpretation of its current powers. Against government arguments, the judge ruled in favor of the court’s authority to review presidential decisions to detain U.S. citizens on terrorism charges, as well as of the detainee’s right to counsel and to be accorded “some sort of adversarial process to test the allegations of the court.” At the same time, the ruling conceded that the government would need only to meet a “minimum standard of proof” to justify detention, and that it had the authority to detain suspects for the duration of hostilities.65 On January 8, 2003, a federal appeals court of Virginia ruled similarly to the Manhattan court decision. In the case of Yasser Esam Hamdi, an American-born Saudi, who was captured in Afghanistan and is now detained in Norfolk, Virginia, the ruling held that the courts were not qualified to make decisions “between those in the area of combat who should be detained and those who should not,” and left that prerogative to governmental authorities. The implication is that the government might detain such a person indefinitely if it so decided. The court also rejected the claim that the Geneva Conventions require the government to submit detention cases to a ‘competent tribunal’ in order to determine whether a detainee is or is not an ‘enemy combatant.’ Otherwise, the court took the same position as the Manhattan decision: the detainee has a right to hear charges and is entitled to some minimal form of judicial proceeding.66 In one unequivocal victory for the administration, an appeals court ruling on terrorist surveillance in November, 2002 permitted wider information-sharing between criminal prosecutors and counterintelligence investigators, in conformity with the provisions in the USA Patriot Act.67 The legal status of all these questions is still in flux as they work their way through the U.S. legal system. Eventually, some of the questions will no doubt come before the Supreme Court for final reckoning. Nevertheless, two things are clear so far. The first is that the administration is not receiving quite the degree of indulgence it expects as it makes its case for wide discretion in determining the balance between national security and civil rights. There remains significant resistance, inside and outside the courts, to the administration’s permissive in 64 “A Court Backs Open Hearings on Deportation,” New York Times (August 27, 2002),

pp. A1 and A12. 65 “Judge Says Man Can Meet with Lawyer to Challenge Detention as Enemy Plotter,” New

York Times (December 5, 2002), p. A23. 66 “A Court is Allowed to Hold Citizen as Combatant,” New York Times (January 9, 2003),

pp. A1 and A10. 67 “Administration Begins to Rewrite the Decades-Old Restrictions on Spying” New York

Times (November 10, 2002), p. A10.

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terpretation of its authority, and that is likely to compel some continuing (and no doubt reluctant) accommodation on the part of the administration. The second is that that resistance is in important respects consonant with human rights and humanitarian law standards, a point that promises to bring the administration, and probably some U.S. court rulings, into direct collision with those standards. According to a recent Amnesty International report on detentions associated with the U.S. campaign against terrorism in Afghanistan, “[i]nternational law and standards, recognizing the need to safeguard the right to liberty and freedom from arbitrary arrest or detention, and to prevent violations of fundamental human rights, require that all forms of detention or imprisonment must be ordered by or subject to the effective control of a judicial or other authority. Article 9.4 of the International Covenant on Civil and Political Rights states: ‘Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if that detention is not lawful.’…[T]he Human Rights Committee has said that this principle applies to all prisoners and detainees, and is non-derogable even in times of emergency.”68 So far U.S. courts, even those most disposed to favor the administration’s position, have generally upheld at least minimum standards of due process in regard to arrests and detentions associated with the campaign against terrorism. Where some of these decisions diverge from international understanding is in regard to authorizing indefinite detention so long as conditions of hostility last. Such authorization is likely to be an ongoing point of contention between international standards and those U.S. courts that side with the administration’s position. Resistance to the administration’s way of balancing national security and civil rights was particularly intense, and especially effective, in reforming the special military commissions created by Presidential Order on November 13, 2001. These irregular tribunals were designed to try noncitizens apprehended in connection with the campaign against terrorism, and were described by one conservative columnist, normally sympathetic to the Bush administration, as ‘kangaroo courts.’69 Trials were to be held in secret, with no presumption of innocence, and officials might withhold evidence from defendants, deny access to counsel, and deliver capital sentences based on a decision by two-thirds of those presiding. In response to an outpouring of objection by legal experts and others here and abroad, the administration, four months later, dramatically revised the terms of operation. Now, most proceedings would be open to the press, a presumption of 68 “USA: Treatment of Prisoners in Afghanistan and Guantanamo Bay Undermines Human

Rights,” pp. 24-25 (emphasis added). 69 William Safire, “Kangaroo Courts,” New York Times (Nov. 26, 2001); cf. Safire, “Seizing

Dicatorial Power,” New York Times (Nov. 11, 2001).


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innocence assumed, evidence, requiring a high standard of proof, will be made available to the defendant, military lawyers will be supplied at government expense, with an opportunity to hire a civilian lawyer, and a death sentence will require a unanimous decision of the judges presiding.70 One of the most prestigious legal critiques of the military commissions was that issued on January 4, 2002 by the American Bar Association Task Force on Terrorism and the Law. The report displayed special sensitivity to the need for such courts to be guided by the International Covenant on Civil and Political Rights, which, at article 14, requires, among other things, that all tribunals be ‘independent and impartial,’ “with the proceedings open to the press and public, except for specific and compelling reasons, and [with] the following rights for the defendant: a presumption of innocence; prompt notice of charges, and adequate time and facilities to prepare a defense; trial without undue delay,” etc.71 While still not completely compatible with international standards,72 the substantial revisions in the military commission proceedings constituted an important example of ‘grudging acquiescence’ on the part of the Bush administration. Moreover, they illustrate that in regard to appeals to public emergency, international norms have by now achieved considerable legitimacy here and abroad, and may not be trifled with without consequence. The administration’s attitude toward the applicability of humanitarian law, namely, the Geneva Conventions, to the prosecution and detention of individuals apprehended in connection with military action in Afghanistan, and now held either at Camp X-Ray in Guantatamo Bay or in overseas facilities, is a final illustration of the familiar pattern of defiance to international norms mixed with reluctant, if still very partial, acquiescence. The situation is succinctly summarized by the Amnesty International report on U.S. treatment of prisoners in Afghanistan and Guantanamo Bay: “As the first prisoners arrived at Guantanamo Bay naval base, Secretary [of Defense] Rumsfeld made it clear that the US Government was adopting, at best, a selective approach to international humanitarian law: ‘We have indicated that we do plan to, for the most part, treat [the prisoners] in a manner that is reasonably consistent with the Geneva Conventions, to the extent they are appropriate, and that is exactly what we have been doing. A week later, in a decision reportedly reached in secret and without announcement on the advise of the Justice Department and White House Counsel, President Bush decided to reject the Geneva Conventions in relation to any of the detainees in US custody in, or transferred from, Afghanistan. Following concern within the admini70 See “Government Sets Rules for Military on War Tribunals,” New York Times (March 21,

2002), pp. A1 and A15. 71 American Bar Association Task Force on Terrorism and the Law; Report and

Recommendations on Military Commissions (Jan. 4, 2002), pp. 16-17; cf. pp. 12-13. 72 There remains no right of appeal, and references to the use of the death penalty will

continue to raise the hackles of advocates of international human rights law.

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D AV I D L I T T L E stration and internationally, a partial reversal in this position was announced on 7 February 2002: the President had determined that the Geneva Conventions applied to detainees who were alleged members of the Taleban, but not to those of al-Qu’aida. However, at the same time it was made clear that none from either group would be granted prisonerof-war status.”73

Though, as in the case of the military commissions, the administration has, to a certain extent, yielded to domestic and international objection, even its present position remains in sharp conflict with prevailing expert opinion on the relevance of the Geneva Conventions to the prisoners detained at Guantanamo Bay and elsewhere. The International Commission of the Red Cross, the former UN High Commissioner for Human Rights, the international humanitarian law experts surveyed by the War Crimes Project, and the International Commission of Jurists have all have agreed that full POW status should be granted to Taliban soldiers. While there is disagreement about the legal status of al-Quaeda detainees, there is broad agreement that their status should be determined, ala the Third Geneva Convention, by a ‘competent tribunal.’74 There are continuing objections from international authorities and human rights organizatons that the treatment of detainees at Guantanamo Bay is in many respects, including conditions of detention, right to hear and test charges, etc., well below humanitarian law standards in.75 However, concern has intensified in respect to recent reports by the U.S. government as well as independent organizations that ‘thousands’ of al Quaeda members and their supporters “have been arrested and held with U.S. assistance in countries known for brutal treatment of prisoners…”76 The process of transferring a prisoner from one country to another is known as ‘rendering.’ According to the Washington Post, “[w]hile the U.S. government publicly denounces the use of torture [and in its human rights reports, frequently denounces governments who employ torture], each of the current national security officials interviewed for this article defended the use of violence against captives as just and necessary…’If you don’t violate someone’s human rights some of the time, you probably aren’t doing your job,’ said one official who has supervised the capture and transfer of accused terrorists…. At a Sept. 26 [2002] joint hearing of the House and Senate intelligence committees, Cofer Black, then head of the CIA Counterterrorist 73 USA: Treatment of Prisoners in Afghanistan and Guantanamo Bay Undermines Human

Rights, p. 17 (original emphasis). 74 Ibid., p. 18. 75 Ibid., p. 19. 76 “U.S. Decries Abuse but Defends Interrogations,” Washington Post (Dec. 26, 2002),

pp. A1, A14, and A15. Cf. 76. USA: Treatment of Prisoners in Afghanistan and Guantanamo Bay Undermines Human Rights, p. 8.


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Center, spoke cryptically about the agency’s new forms of ‘operational flexibility’ in dealing with suspected terrorists. ‘This is a very highly classified area, but…all you need to know [is]: There was a before 9/11 and there was an after 9/11…After 9/11, the gloves come off’…. According to [another official],… ‘We don’t kick the [expletive] out of them. We send them to other countries so they can kick the [expletive] out of them….’ Bush administration officials said the CIA, in practice, is using a narrow definition of what counts as ‘knowing’ that a suspect has been tortured. ‘If we’re not there in the room, who is to say?’ said one official conversant with recent reports of renditions….”77 The Post article concludes that while President Clinton finally stopped assisting and working with Egypt’s general intelligence service because of the extensive use of torture, a practice frequently documented and criticized in the U.S. State Department human rights reports, the Bush administration, after September 11, has no such compunctions. The U.S. has resumed cooperation with Egyptian intelligence officials, and despite the probable use of torture on suspects the U.S. has ‘rendered’ to Egypt, “You can be sure,” said one Bush official, “that we are not spending a lot of time on that now.”78

Conclusion The present international order, prominently including the United Nations Charter and institutions, together with the system of human rights and humanitarian norms, rests, as we have argued, on a fundamental aversion to the dark temptations and dangers that invariably accompany appeals to public emergency. That worldwide aversion was generated by Hitler’s sustained and systematic abuse of such appeals. The moral of the story is that governments who are party to ‘Hitler’s Epitaph’ – the UN Charter and the various human rights and humanitarian law instruments – have a primary responsibility to endeavor resolutely to support and comply with the provisions and standards of the international order, both to prove they are not themselves succumbing to the dark temptations and dangers associated with emergencies, and to help other governments to do the same. That is especially true, as we have suggested, of the ‘world’s number-one superpower,’ the United States, confronted, as it is, with a particularly fearsome and perilous emergency created by international terrorism. In its response, the U.S., because of its unrivalled military and economic prowess, is uniquely positioned to ‘make or break’ the international order. So far, the record of the U.S. government is at best ambiguous and inconstant. Occasionally, it has the right instincts. And here and there evidence exists that, despite certain strong disruptive tendencies on the part of the present ad77 Ibid. 78 Ibid., p. A15.

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ministration, the imperatives of the international order are not altogether without effect. May those impulses be strengthened while there is still time.

References Ajami, Fouad, “Iraq and the Arabs’ Future, Foreign Affairs, Jan.-Feb. 2002. Bonuses, Cash, “White House Defends Return to Appointees’,” New York Times, December, 5, 2002. Caruthers, Thomas, “Promoting Democracy and Fighting Terror,” Foreign Affairs, Jan.-Feb., 2003. Cole, David, “Fight Terrorism Fairly, New York Times, Oct., 19, 2002. Davis, Derek H., “The Dark Side to a Just War: The USA Patriot Act and Counterterrorism’s Potential Threat to Religious Freedom”, Journal of Church and State 8,37, Feb. 8, 2002. Dower, John, “Iraq – Lessons Japan about War’s Aftermath, New York Times, Nov. 21, 2002. Dworkin, Ronald, “The Threat to Patriotism,” New York Review of Books, Feb. 29, 2002. Ebenstein, William, Man and the State, New York, Reinhart & Co., 1948. Gaddis, John Lewis, “A Grand Strategy of Transformation,” Foreign Policy, Nov.-Dec., 2002. Glennon, Michael J., “How War Left the Law Behind,” New York Times, Nov. 21, 2002. Greenhouse, Linda, “A Penchant for Secrecy,” New York Times, Week in Review, May 5, 2002. Greenhouse, Linda, “The Imperial Presidency vs. the Imperial Judiciary,” New York Times, September 8, 2002 Hirsh, Michael, “Bush and the World,” Foreign Affairs, September/Octoboer 2002. Hitler, Adolf, Mein Kampf, trans. by Ralph Manheim, Boston, Houghton Mifflin Co., 1971. Ignatieff, Michael, “Nation-Building Lite,” New York Times Magazine, July 28, 2002 Ikenberry, John, “The Lures of Preemption,” Foreign Affairs, September/Octoboer 2002. Keller, Bill, “The Sunshine Warrior,” New York Times Magazine, Sept. 22, 2002 Kelsay, John, “Bin Laden’s Reasons,” Christian Century, February 26-March 6, 2002. Lieven, Anatol, “The Push for War,” London Review of Books, Oct. 3, 2002. Little, David, “Force and Humanitarian Intervention: The Case of Kosovo”, Wm. Joseph Buckley (ed.), Kosovo: Contending Voices on Balkan Interventions, Grand Rapids: Eerdmans Publishing Co., 2000 Markoff, John, “Pentagon Plans a Computer System That Would Peek at Personal Data of Americans,” New York Times, Nov. 9, 2002.


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Meyer, Eric P.J. and White, Nigel D., “The Twin Towers Attack: An Unlimited Right to Self-Defence?” Journal of Conflict and Security Law) Vol. 7, No. 1, 2002. Morsink, Johannes, The Universal Declaration of Human Rights: Origins, Drafting, and Intent University of Pennsylvania Press, 1999. Pictet, Jean, Commentary, IV Geneva Convention, Relative to the Protection of Civilians in Time of War, Geneva, International Committee on the Red Cross, 1958. Pictet, Jean, Development and Principles of International Humanitarian Law, Dordrecht, Martinus Nijhoff Pubishers, 1985. Safire, William, “Kangaroo Courts,” New York Times, Nov. 26, 2001. Scheffer, David, “Staying the Course with the International Criminal Court,” Cornell International Law Journal Vol. 35, Nov. 2001-Feb. 2002. Taub, James, “Who Needs the U.N. Security Council?” New York Times Magazine, November 17, 2002. Urquhart, Brian, “The Prospect of War,” New York Review of Books XLIX, 20, December 19 2002.

Contributors SVEND ANDERSEN Professor of ethics and philosophy of religion University of Aarhus, Denmark [email protected] http://www.teo.au.dk LINDA BARCLAY Associate Professor Institute for Philosophy and History of Ideas University of Aarhus, Denmark [email protected] http://www.hum.au.dk/filosofi/filbarclay/ LARS BINDERUP Associate Professor in Philosophy Institute of Philosophy, Education and the Study of Religions University of Southern Denmark, Odense [email protected] http://www.humaniora.sdu.dk/nywebX/inc/show.php?full=677 D AV I D F AV R H O L D T Professor emeritus in Philosophy Education in philosophy and psychology (Copenhagen University), full time professor at University of Southern Denmark from 1966 to 2001, member of The Royal Danish Academy of Science and Letters and member of Academia Europaea http://www.humaniora.sdu.dk/nywebX/inc/show.php?full=118 R O S A L I N D I. J. H A C K E T T Distinguished Professor in the Humanities, University of Tennessee, Knoxville, where she teaches Religious Studies and Anthropology. She is President of IAHR, the International Association for the History of Religions. [email protected] http://web.utk.edu/~rhackett JAN HJÄRPE Professor emeritus in Islamology University of Lund, Sweden He is a member of Kungliga Vitterhets Historie och Antikvitets Akademien, Academia Europaea et al. [email protected], [email protected] http://www.teol.lu.se/islamologi/forskning/hjarpe.html

TIM JENSEN Associate Professor in History of Religions Institute of Philosophy, Education and the Study of Religions University of Southern Denmark, Odense He is General Secretary of IAHR, the International Association for the History of Religions. [email protected] http://www.humaniora.sdu.dk/nywebX/inc/show.php?full=474 E R I C H G. K L AW O N N Professor in Philosophy Institute of Philosophy, Education and The Study of Religions University of Southern Denmark, Odense [email protected] http://www.humaniora.sdu.dk/nywebX/inc/show.php?full=476 EVA MARIA LASSEN Senior research fellow The Danish Institute for Human Rights She is National Director of the European Master’s Degree in Human Rights and Democratisation (E.MA) and member of the Executive Committee of the E.MA. [email protected] http://www.humanrights.dk DAVID LITTLE T.J. Dermot Dunphy Professor of the Practice in Religion, Ethnicity, and International Conflict at Harvard Divinity School, and Director of Initiatives in Religion and Public Life Associate at the Weatherhead Centre for International Affairs at Harvard University Until 1999 Little was Senior Scholar in Religion, Ethics and Human Rights at the United States Institute of Peace in Washington, DC. He was a member of the U.S. State Department Advisory Committee on Religious Freedom Abroad from 1996 to 1998. [email protected] http://www.hds.harvard.edu/faculty/little.html JAKOB SKOVGAARD-PETERSEN Associate Professor in Islamic Studies Carsten Niebuhr Institute, University of Copenhagen, Denmark He is currently Director of the Danish - Egyptian Dialogue Institute, Cairo. THOMAS WAMSLER Cand.mag. in History and Religion from the University of Copenhagen, Denmark [email protected]

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