The Johns Hopkins University Press Human Rights Quarterly
The Johns Hopkins University Press Human Rights Quarterly
The Johns Hopkins University Press Human Rights Quarterly
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HUMAN RIGHTS QUARTERLY
Michael Freeman*
ABSTRACT
Theorists and practitioners commonly assume that the concept of human
rights is secular and that it normally takes priority over other values. These
assumptions are controversial for those who approach human rights from
the perspective of religious beliefs. This article examines the arguments
both of those who claim that religious beliefs must interpret human rights
in their own terms and those who claim priority for the international
(secular) legal understanding of the concept. It compares Western and
Islamic approaches to religion, secularism, and human rights, and reaches
two conclusions: 1) at the philosophical level, there may be no decisive
argument for according priority to secularism or religion; 2) the politics of
this debate may be more important in practice than questions of religious
philosophy.
Human Rights Quarterly 26 (2004) 375-400 ? 2004 by The Johns Hopkins University Press
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376 HUMAN RIGHTS QUARTERLY Vol. 26
2. Jack Donnelly, Universal Human Rights in Theory and Practice 109-24 (1989); Peter R. Baehr,
Human Rights: Universality in Practice 9-19 (2001); Michael Freeman, Human Rights: An
Interdisciplinary Approach 101-30 (2002).
3. Jacques Maritain, Introduction to Human Rights: Comments and Interpretations 9-17
(UNESCO ed., Greenwood Press 1973) (1949).
4. Id.
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2004 Secularism in Human Rights Theory 377
5. Ann Elizabeth Mayer, Islam and Human Rights: Tradition and Politics 198 (3rd ed. 1999).
6. Id. at 68-76.
7. Universal Declaration of Human Rights, supra note 1.
8. Norani Othman, Grounding Human Rights Arguments in Non-Western Culture: Shari'a
and the Citizenship Rights of Women in a Modern Islamic State, in The East Asian
Challenge For Human Rights 169 (Joanne R. Bauer & Daniel A. Bell eds., 1999).
9. Id. at 174.
10. Convention on the Elimination of All Forms of Discrimination Against Women, adopted
18 Dec. 1979, G.A. Res. 34/180, U.N. GAOR 34th Sess., Supp. No. 46, U.N. Doc. A/
34/36 (1980) (entered into force 3 Sept. 1981), reprinted in 19 I.L.M. 33 (1980).
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378 HUMAN RIGHTS QUARTERLY Vol. 26
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2004 Secularism in Human Rights Theory 379
internally or externally, only on the basis of respect for its traditions and of
sensitivity to its criteria of legitimacy.18 It may be counter-productive for
external human rights reformers to position subordinated internal reformers
as agents of an alien culture.
The Qur'an is, for Muslims, the word of God. Many Muslims believe
that the whole of Shari'a is divine, and that it is the whole duty of Mankind.
Shari'a, however, discriminates against women and non-Muslims, and, in
this, is clearly not in conformity with international human rights law. This
raises the question of why a Muslim should judge Shari'a by human rights
standards. An-Na'im argues that the secular approach to human rights fails
to answer this question convincingly since it requires Muslims to subordi
nate their religion to merely human, and non-Islamic, criteria.19 "[If]
secularism remains the only alternative to Shari'a, therefore, the proponents
of Shari'a will be able to enlist Muslim public opinion to their side."20 An
Na'im consequently seeks a middle way between traditional Islam, which is
incompatible with human rights, and secularism, which is incompatible
with Islam.21 He does this by distinguishing between the basic values of the
Qur'an, which is associated with the Prophet's life in Mecca, and its
historically contingent rules, which are associated with his move to
Medina.22 Further, he argues that Shari'a was constructed by Muslim jurists
over the first three centuries of Islam and is therefore not divine law. Now
Muslims have to live in a world of nation-states, constitutionalism and
international law.23 The Qur'an can retain its status as the religious basis of
Muslim life, but it must be adapted to modern political conditions. It can, he
maintains, be interpreted to support equal citizenship for men and women,
for Muslims and non-Muslims. This reformed, but still Qur'anic, Islam
would thus conform with human rights.24
An-Na'im does not believe that Muslims and secular human rights
advocates will always agree on the interpretation of human rights.25 One
problematic area is that of hudud: the criminal offences for which the
Qur'an and/or Sunna (traditions of the Prophet) provide explicit punishments,
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380 HUMAN RIGHTS QUARTERLY Vol. 26
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2004 Secularism in Human Rights Theory 381
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2004 Secularism in Human Rights Theory 383
human nature."50 The verbal acceptance of this list by most states, he says,
is "a prima facie indication of the attractiveness of the underlying moral
vision."51
There are societies, Donnelly acknowledges, that seek to realize human
dignity without the concept of human rights, but these alternative concep
tions of human dignity amount to challenges to the idea of human rights.52
Muslims, for example, are required to treat others with respect and dignity,
but the basis for these injunctions are divine commands that establish only
duties, not human rights. The social and political precepts of Islam,
Donnelly acknowledges, reflect a strong concern for human good and
human dignity.53 Such a concern is a prerequisite for the concept of human
rights, but it is not equivalent to the recognition of human rights. To
"incorporate" non-Western understandings and practices with respect to
human rights would come "dangerously close" to destroying or denying
human rights "as they have been understood."54 Donnelly assumes, contrary
to the approaches of An-Na'im and Othman, that non-Western understand
ings are to be incorporated into the discourse of human rights rather than
vice versa, and that non-Western understandings would undermine the
concept of human rights.55
Donnelly has recently recognized that Muslims have developed Islamic
doctrines of human rights that are "strikingly similar in substance" to the
Universal Declaration.56 This appears to represent a shift in his position,
because he now implicitly acknowledges that Islamic conceptions of
human dignity include, not only the prerequisites for the concept of human
rights, but also the potential for developing it. This acknowledgment brings
Donnelly closer to An-Na'im and Othman.
Donnelly concedes that, in small traditional communities, many of the
values that are protected in the West by human rights are protected by other
means,57 and that the traditional conception of human dignity might be
superior to that of human rights liberalism. Perhaps most people would
prefer regulated, secure social roles with their concomitant sense of
belonging to autonomy and its attendant insecurities. He argues, however,
that in most places in the contemporary world modernization has separated
50. Id.
51. Id.
52. Id. at 50.
53. Id. at 51-52.
54. Id. at 58.
55. Id.
56. Donnelly, The Universal Declaration Model, supra note 34, at 9. See also Jack Donnelly,
Universal Human Rights, supra note 2, at 75.
57. Donnelly, Universal Human Rights, supra note 2, at 59.
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384 HUMAN RIGHTS QUARTERLY Vol. 26
individuals from the small, supportive community, and left them unpro
tected from assaults on their dignity by modern social, economic and
political institutions.58 In this situation, human rights are necessary to protect
human dignity.59 The needs of human dignity in developing countries today
are largely the same as they were in past centuries in the West. "In such
circumstances, human rights appear to be a natural response to changing
conditions, a logical and necessary evolution of the means to realize human
dignity."60 The claim that human rights appear to be a "necessary evolution"
seems inconsistent with Donnelly's belief that human rights represent "a
social choice of a particular moral vision of human potentiality."61 If
responses to the threats to human dignity posed by modernity are chosen,
then religious alternatives to human rights may be chosen, and cannot be
defeated by the appeal to modernity alone.
Donnelly defends human rights universalism against certain forms of
relativism. He sees "relativism" as "cultural," but does not address the
particular challenge of religion. Universal human rights standards, he says,
serve as a check on potential "excesses" of relativism.62 Nonetheless, certain
types of moral variation are justifiable on grounds of the goods of diversity,
self-determination, and tolerance. Human nature itself is partly a socio
cultural product, and consequently variable.63 The cultural variability of
human nature not only permits, but also requires, significant allowance for
cross-cultural variations in human rights.64
Donnelly argues that respect for autonomous moral communities
demands internal evaluations of their cultures, but, he says, to rely on
internal judgements alone "abrogates one's moral responsibilities as a
member of the cosmopolitan moral community."65 He associates these with
"the inherent universality of basic moral precepts, at least as we understand
morality in the West."66 "We simply do not believe," he maintains, "that our
moral precepts are for us and us alone."67 He then cites Kantian and other
deontological moral theories, utilitarianism, and human rights theories.
"Our moral precepts are our moral precepts. As such, they demand
obedience of us."68 At some point we must say that cultures that are not in
58. Id.
59. Id. at 60.
60. Id.
61. Id. at 17.
62. Id. at 109.
63. Id. at 111-12.
64. /d. at 112.
65. /d at 114.
66. Id. at 116.
67. /d. at 116.
68. /cf.
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2004 Secularism in Human Rights Theory 385
conformity with our precepts are wrong.69 Donnelly concedes that Western
morality is diverse, but does not acknowledge that the Western philosophies
that he cites have different implications for human rights.70 His argument
moves from a cosmopolitan affirmation of universality to a Western moral
rejection of incompatible moralities. This ends as a dogmatic affirmation of
the universal applicability of the Western conception of human rights that
provides little argument against either Western or non-Western opponents,
apart from the not entirely convincing claim that human rights are necessary
to protect human dignity under modern conditions.71
69. Id.
70. Id.
71. Id.
72. Id. at 22-23.
73. Id. at 23-24.
74. See Richard Rorty, Human Rights, Rationality, and Sentimentality, in On Human Rights:
The Oxford Amnesty Lectures 1993 111-34 (Stephen Shute & Susan Hurley eds., 1993).
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386 HUMAN RIGHTS QUARTERLY Vol. 26
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2004 Secularism in Human Rights Theory 387
Donnelly finds the roots of the Western approach to human rights in the
seventeenth century, particularly in England.79 He says that a fully developed,
liberal, natural-rights conception of politics had become well established in
English political debate by the time of John Locke's Two Treatises of
Government. He describes the Second Treatise as one of the standard
sources of the conventional conception of human rights.80 Donnelly refers
to Locke's two treatises, but moves swiftly to a reading only of the second
treatise.
Donnelly mentions, vaguely, the "brief introduction" of the Second
Treatise.^ This introduction, however, summarizes the argument of the First
Treatise, which is a critique of the biblical interpretation proposed by Sir
Robert Filmer.82 Locke disputed Filmer's interpretation of the Bible because,
while Filmer had used the Bible to defend absolute monarchy, Locke used
it to defend natural rights and limited government. By ignoring the First
Treatise, Donnelly suppresses the religious character of Locke's conception
of natural rights.
According to Donnelly, the Second Treatise begins by arguing that men
are naturally in a state of perfect freedom and equality, and that each person
has natural rights to freedom and equality.83 Locke actually wrote that men
were naturally in a state of perfect freedom to order their actions, and
dispose of their possessions and persons as they thought fit, "within the
bounds of the Law of Nature."84 This was also a state of equality, "there
being nothing more evident" than that creatures of the same species born to
the same advantages of nature should be equal without subordination,
"unless the Lord and Master of them all should, by any manifest declaration
of his will, set one above another, and confer on him by an evident and
clear appointment an undoubted right to dominion and sovereignty."85
Thus, Locke maintained that the natural freedom of men was bounded by
the Law of Nature, the source of which, in his philosophy, was God. He also
said that men were naturally equal, unless God had set one above another
"by any manifest declaration of his will."86 The Second Treatise, therefore,
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388 HUMAN RIGHTS QUARTERLY Vol. 26
For men being all the workmanship of one omnipotent and infinitely wise
maker, all the servants of one sovereign master, sent into the world by his order
and about his business, they are his property, whose workmanship they are,
made to last during his, not one another's pleasure.89
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2004 Secularism in Human Rights Theory 389
91. John Locke, A Letter Concerning Toleration (1 794, 1997); John Dunn, The Political Thought
of John Locke: An Historical Account of the Argument of the "Two Treatises of Government"
(1969); John Marshall, John Locke: Resistance, Religion and Responsibility (1994).
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390 HUMAN RIGHTS QUARTERLY Vol. 26
the moral high ground was also called into question by the cruelty involved
in religious persecution.92
As official Christianity became epistemologically, politically, and mor
ally vulnerable, science and mathematics seemed to offer epistemic security
and liberation from superstition, dogma, and the oppression of priests and
rulers claiming divine legitimation. The attempts by the great philosophers
of the Enlightenment to reconcile Christianity and science in various ways
added philosophical to religious confusion, while society enjoyed the
practical benefits of scientific and technological progress. The discourse of
rights could still draw on Christian, natural-law sources for its legitimacy,
but increasingly its practical concerns were secular.93
In addition, increasing knowledge both of classical, Greco-Roman
civilization and of non-European cultures provided alternatives to Christian
ity. Machiavelli had already pioneered a "neo-pagan" political theory. In the
eighteenth century European intellectuals could look, not only back to
Greece and Rome but also outside Europe, for alternatives to Christian
politics. This turn of European thought would have mixed results for the idea
of universal human rights, as it opened the door to cultural relativism, and
thereby created the conditions for throwing the natural-rights baby out with
the Christian, universalist bathwater. Both neo-classicism and cultural
relativism were means to weakening the hegemony of Christianity, however,
and so religion increasingly became, not the source of truth, but the object
of scientific inquiry. The religion of society would, in the nineteenth century,
become the sociology of religion.94
The French Revolution did its best to wreck the remaining, tenuous
connection between religion and the Rights of Man that existed at the end
of the eighteenth century.95 The violence and disorder of the Revolution
discredited the concept of natural rights without rehabilitating religion. For
some critics the problems of the concept derived not from its "atheistical"
character, but from its supposed anti-social nature and its unscientific status.
The Revolution placed the question of social order at the top of the
intellectual agenda, and the answer was believed to lie in the field of social
92. Jonathan I. Israel, Radical Enlightenment: Philosophy and Making of Modernity 1650-1750
(2001); Richard H. Popkin, The History of Skepticism From Erasmus to Spinoza (1979); Jerome
b. schneewind, the invention of autonomy: a hlstory of modern moral philosophy (1998),'
John Charles Addison Gaskin, Hume's Philosophy of Religion (1978).
93. Freeman, supra note 2, at 22-26.
94. Id. at 26-31.
95. Thomas Paine wrote The Age of Reason to counter what he perceived to be the atheism
of the French Revolution. His own conception of the Rights of Man was based on
Quakerism and deism. See Mark Philip, Paine 94-113 (1989); Gregory Claeys, Thomas
Paine: Social and Political Thought 90-91 (1989).
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2004 Secularism in Human Rights Theory 391
science.96 Both religion and the Rights of Man were treated by social
science as ideologies, that is, belief systems that had social significance but
not truth value.
The nineteenth century witnessed the relentless progress of science and
technology in the West in the face of a defensive reaction by Christianity.
The rise of industrial capitalism produced workers and socialist movements
that claimed various economic, social and political rights. Although these
demands were sometimes given a Christian justification, these movements
were predominantly secular, and left behind the philosophy of natural law.
Although the socialist movement was highly moralistic, there was no clear
consensus on its philosophical basis. Forms of Kantianism and Utilitarian
ism jostled with non-philosophical practical demands, as well as ideas
drawn from post-Hegelian philosophy and scientific positivism. Many of
these ideas can be found in the thought of Karl Marx.97
By the end of the Second World War, religion still played a role in
public life in the Western democracies, but politics had become predomi
nantly pragmatic and secular. The United Nations was established with the
primary goal of preventing war. Its commitment to human rights was based
largely on a moral revulsion against Nazism,98 although it included the
economic and social rights that had been advocated by workers and
socialist movements. The language of human rights was the best available
for this purpose, since other philosophies of the time?such as Utilitarian
ism, scientific positivism, and existentialism?did not offer the same kind of
protection from governmental abuse. Politically, human rights were ex
pressed in secular terms in order to attract universal support. A proposal to
include a reference to God was made during the drafting of the Universal
Declaration, but rejected because it was not universally acceptable.99 The
Universal Declaration grounded human rights in the secularized, neo
Kantian formula of "the dignity and worth of the human person" rather than
on any particular religious doctrine. This formula is not itself very controver
sial, but its implications still are. Wars are not fought for and against the
dignity and worth of the human person, but they are fought over what
political practices and institutions this idea entails.100
96. Id.
97. Steven Lukes, Marxism and Morality 61-70 (1985); Alice Erh-Soon Tay, Marxism, Socialism
and Human Rights, in Human Rights 104-12 (Eugene Kamenka & Alice Erh-Soon Tay
eds., 1978); L.J. Macfarlane, Marxist Theory and Human Rights, 1 7 Gov't & Opposition
414-28 (1982).
98. See Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and
Intent (1999).
99. Id. at 284-90.
100. Id. at 281-328.
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392 HUMAN RIGHTS QUARTERLY Vol. 26
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2004 Secularism in Human Rights Theory 393
108. Id.
109. Gewirth, Human Rights, supra note 104, at 89.
110. Id. at 45.
111. Id. at 45-46.
112. Id. at 46-47
113. Id. at 45-48.
114. Gewirth, Human Rights, supra note 104, at 49.
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394 HUMAN RIGHTS QUARTERLY Vol. 26
freedom and well-being are human rights. Further, since all agents logically
must accept that they have rights to freedom and well-being, the having of
these rights is morally necessary.U5
Human rights are, therefore, grounded in reason so that they have a
normative necessity which transcends the variable contents of social
customs and positive laws. Since human rights can conflict with each other,
however, they are only prima facie rights. In cases of conflict, rights more
necessary to action have priority over those that are less necessary: the right
not to starve, for example, would "trump" the right not to be subject to
discrimination. Violations of human rights are justified only when they are
necessary to prevent more serious violations, rectify past violations or
comply with social rules that sustain human rights. The rights to freedom
and well-being entail such rights as those to political participation, to be
free from discrimination and to the resources, such as health and education,
that are necessary for action so far as possible.116
Gewirth differs strikingly from Donnelly in that he holds that human
rights are logical entailments of morality as such and not contingent social
constructions.117 His analysis is based on the claim that, notwithstanding the
diversity of moral philosophies and religions in the world, there is a "core
meaning" to all of them, and all require action and agency. Since, he argues,
freedom and well-being are necessary to agency, the rights to freedom and
well-being are universal human rights. Gewirth interprets "freedom" and
"well-being" to entail a set of rights very similar to those to be found in the
Universal Declaration. These rights therefore trump all beliefs, customs, and
laws that are inconsistent with them.118 All cultures that seem to lack the
concept of human rights must either have it implicitly or they are in a state
of logical and moral error. Like Donnelly, Gewirth believes that everyone
ought to be a liberal, social democrat, but Gewirth goes beyond Donnelly in
claiming that this is logically necessary. Gewirth does not address the
problem that those who hold illiberal moral beliefs, especially those who
believe that they are absolutely required to hold them by the ultimate source
of moral obligation (God), cannot, on pain of self-contradiction, be logically
required to hold moral beliefs that are inconsistent with their considered
convictions.119 If Gewirth insists that they can, he would violate his own
principle of respect for the religious freedom of others. Gewirth can avoid
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2004 Secularism in Human Rights Theory 395
Whereas Gewirth and Donnelly require religion to bring itself into line with
human rights, An-Na'im and Othman meet the requirement of Maritain that
human rights must be grounded in the various religions and philosophies of
the world rather than vice versa. Their Islamic conceptions of human rights
may, however, produce controversial versions of both Islam and human
rights. To the extent that they do, their attempt at reconciliation fails, but
there can be no guarantee that all conceptions of human rights will be
compatible with all religious beliefs.
The discourse of contemporary Western political philosophy is now
predominantly secular. The problem for human rights theory then is how to
construct a universal theory that recognizes the importance of diverse
religions in the world, but is not itself religious. John Rawls has attempted to
solve this problem from a Western, liberal perspective. His theory of justice
as fairness considers a political system to be fair if everyone would consider
it to be so when thinking about it impartially, that is, without giving priority
to their own interests.121 Gewirth criticizes Rawls for inferring egalitarian
conclusions from egalitarian premises, but Rawls' attempt to derive justice
from impartiality is similar to Gewirth's derivation of human rights from
prudential rights: both begin with self-interested individuals and go on to
derive conclusions about the rights and obligations of a society of such
individuals.122 Rawlsian contractors agree on the principles of justice
because they are supposed to decide on them while behind a "veil of
ignorance," where they know that they have interests, but do not know what
those interests are. Gewirthian logicians recognize that their own claims to
act for their own good entail the recognition of the same rights of others.
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396 HUMAN RIGHTS QUARTERLY Vol. 26
The theories of both Rawls and Gewirth are "secular" in the sense that they
are not derived from a religious doctrine and require the state to be neutral
among religious beliefs. Rawls emphasizes, however, that his theory is not
secular in the sense that it favors secular over religious beliefs.123
Rawls' theory has changed over time. In A Theory of Justice he was
concerned to show that citizens could develop a sense of justice that would
lead them to support the principles of justice.124 Later, he emphasizes the
fact that modern democratic societies contain a pluralism of incompatible
but reasonable comprehensive doctrines, such as religious faiths.125 This
pluralism is the normal outcome of human reason under free institutions.
Rawls differs strikingly from Gewirth on this point. Gewirth is a logical and
moral monist: he argues that all rational agents are logically committed to a
universal conception of human rights similar to that of the United Na
tions.126 Rawls holds that free reason leads different agents to different
religious, philosophical, and moral beliefs.127 Gewirth holds that all these
beliefs logically entail the same set of human rights. Rawls draws a more
limited inference from the fact of philosophical pluralism.128
Rawls addresses the problem of pluralism by distinguishing between
reasonable and unreasonable comprehensive doctrines. Comprehensive
doctrines are reasonable if they respect the principles of liberal democracy
and do not attempt to use state power to correct or punish those who live by
other reasonable doctrines.129 Liberal justice requires toleration of all
reasonable comprehensive doctrines, including those that are not liberal.
This requires a distinction between political liberalism and comprehensive
liberalism. Political liberalism requires respect for liberal principles in the
political institutions of society. Comprehensive liberalism is based on the
value of individual autonomy in all areas of life. However, this is only one
comprehensive doctrine among the many that will be found in a free
society. Political liberalism is neutral among different reasonable compre
hensive doctrines, and is therefore neutral between comprehensive liberal
ism and non-liberal comprehensive doctrines.130
Rawls extends his liberal conception of justice to the society of
peoples.131 This provides the principles of the foreign policies of reasonably
123. See Rawls, A Theory of Justice, supra note 119; Johns Rawls, Political Liberalism (1993).
124. Rawls, A Theory of Justice, supra note 119, at 567-77.
125. Rawls, Political Liberalism, supra note 123 at 36.
126. Gewirth, Human Rights, supra note 104, at 51-55.
127. Rawls, Political Liberalism, supra note 123 at 36.
128. See Id.; See Rawls, Political Liberalism, supra note 123, see also Gerwith, Human Rights,
supra note 104.
129. Id. at 60-61.
130. Rawls, Political Liberalism, supra note 123.
131. See John Rawls, The Law of Peoples (1999).
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2004 Secularism in Human Rights Theory 397
132. Id.
133. Id. at 71.
134. Id. at 75.
135. Id.
136. Id. at 59-62.
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398 HUMAN RIGHTS QUARTERLY Vol. 26
why justice, which in A Theory of Justice he said was "the first virtue of
social institutions," should yield to these other principles.137 The claim that
human rights are liberal-democratic rights, he says, "expands" the class of
human rights. Rawls restricts the category of "human rights proper" to those
contained in Articles 3-18 of the Universal Declaration. He excludes
thereby the rights to freedom of expression, association, and participation in
government, as well as the prohibition on discrimination.138 He suggests that
some other articles presuppose specific kinds of institutions.139 This is an
unclear idea, because the human rights that he endorses, such as the right to
a fair trial, require appropriate institutions, though not specific institutions,
in the sense that they are compatible with considerable variation in
institutional forms. Yet Rawls excludes such rights as those to work, medical
care, education, and culture on the ground that they require specific
institutions, but, in this, they are no different from some of the rights that he
endorses: they require appropriate, but not uniform, institutions.140 Rawls
also insists that decent societies must respect the human rights of women.
This, he says, is not a peculiarly liberal idea but one that is common to all
decent peoples.141 Religion cannot justify the subjection of women because
basic human rights are involved. Rawls' opposition to the subjection of
women is, however, weakened by his refusal to endorse the human right not
to be subject to discrimination on the ground of gender.
Rawls emphasizes that the actual conditions of the world do not
determine the ideal conception of the society of peoples, so it is difficult to
see why he requires liberals to tolerate what he concedes to be less than
ideal justice. His claim that reasonable pluralism is the outcome of the
exercise of human reason under free institutions, and that his law of peoples
simply extends this idea to the society of peoples, ignores the fact that non
liberal peoples are not fully free. The law of peoples requires liberal peoples
to tolerate the political privileging of comprehensive doctrines, which is
intolerable in liberal societies. Rawls had argued that individuals in the first
original position would choose the principle of equal liberty of conscience,
and that they would wish to avoid "at almost any cost" the social conditions
that undermined the primary good of self-respect. In the second original
position, however, these principles are not guaranteed.142 In accepting as
"decent" societies in which the state enforces unequal human rights on the
basis of a comprehensive doctrine, Rawls is surely going beyond what is
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2004 Secularism in Human Rights Theory 399
IX. CONCLUSIONS
The concept of human rights is a moral, political, and legal idea that
originated in Christian, natural-law philosophy, became secularized and
was revived by the United Nations to articulate its opposition to Fascism,
and to unite the world on a set of standards according to which govern
ments are required to treat all human beings decently. It has widespread
support in the contemporary world, but there is no agreement on its
philosophical basis. This paper has addressed problems that arise when the
principles of human rights come into conflict with religious principles to
which some people are deeply committed. There is what Rawls calls an
"overlapping consensus" between many religious beliefs and the principles
of human rights, but the consensus is not complete. Human rights theory
therefore has the task of reconciling religion and human rights so far as it is
possible.
Maritain argued that a concept of universal human rights would have to
be rooted in different religions and philosophies. This may be a pragmatic or
an epistemol?gica! argument. It may simply recognize the fact of pluralism
or it may hold that there is an irreducibly diverse set of justifying principles.
Gewirth argues that all these principles entail respect for a set of human
rights similar to those of the UN. This prima facie implausible argument
seems to be based on an illicit move from the claim that some minimal
levels of freedom and well-being are necessary conditions of action, and
therefore of moral action, according to any moral beliefs whatever, to the
wider and more controversial claim that a set of rights and institutions much
like those of Western liberal social democracy are logically required to be
universal. This has the paradoxical and implausible consequence that many
people are logically required to abandon their beliefs. This argument
concludes, implausibly, that a logically coherent set of non-liberal beliefs is
impossible, and it might have the empirical consequence of undermining
the capacity for moral action of those who hold such beliefs at least as much
as not having some of the rights that Gewirth holds to be universal.
Rawls says, plausibly, that diversity of comprehensive doctrines is
unavoidable. He also says, plausibly, that diversity of belief is the expected
outcome of human freedom. The apparent consensus on human rights
suppresses this diversity, or assumes too easily that it is compatible with
human rights. Given the Western roots of human rights, there will probably
be at least differences in the interpretation of human rights in different
cultural contexts. Rawls is wrong, however, to say that civic inequality is
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400 HUMAN RIGHTS QUARTERLY Vol. 26
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