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The Uncomfortable Alliance of Law, Religion, and Human Rights

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Nicholas P. Wolterstorff

By Mary Loftus
11/12/07

Impoverishment amid great wealth is a violation of both human rights and New Testament teachings, said Yale’s Nicholas P. Wolterstorff, Noah Porter Professor Emeritus of Philosophical Theology, October 26 at the Center for the Study of Law and Religion’s silver anniversary conference, “From Silver to Gold: The Next 25 Years of Law and Religion.”

In fact, many Christian tenets, such as “Love thy neighbor as thyself,” exist at the core of any system of universal human rights.

Yet a troubled relationship between Christianity and the concept of human rights exists, Wolterstorff said, perhaps because “Christians participated in some of the most egregious violations of human rights, when they sold their souls to nationalism or patriotism, or in pursuit of wealth. Sometimes they have gone so far as to say they were acting out of Christian ‘love.’ ”

Speaking as a Christian himself, Wolterstorff said Christians have long had a one-sided relationship with human rights, which never appear stated in so many words in any document of the church.

There is a discomfort on the part of many American Christians with the notion of extending general human rights to everyone—especially those with whom they don’t agree.

“When our own perceived interests are at risk, however,” he said, “we happily employ such rights—the right to prayer in public school, the right to life—apparently without noticing the irony of what we are doing.”

It is true that “one can use the language of rights to make sure one gets that to which one is entitled,” he said. “But that’s an abuse of the language, ignoring the entitlements of others.”

Even on an international level, we “treat our enemies as of less worth than Americans,” he said.

Loving one’s neighbor as oneself, Wolterstorff said, is about both love and justice, and “rendering justice as a part of love.”

Charles Howard Candler Professor of Law Abdullahi An-Na`im, of Emory University, says Muslim societies may be influenced by the idea of Shari`a—the religious law of Islam—but that state laws and religious laws are, and should remain, distinct.

A country’s law is not divine, but the product of human agency, An-Na`im said. For divine instruction to enter into human comprehension and to be enacted into law means, by definition, that it becomes the political will of the state, and no longer divine command.  

“A state is a political institution, which is inherently secular and cannot be religious,” he said, explaining that there is no “Islamic state.” Saudi Arabia, Iran, and Senegal or any other state are secular states in the sense of being non-religious, even if the totality of the population are Muslims.

But a state may not be secular enough, he added, in the sense of being neutral regarding the religious beliefs of citizens in their communities. Only when the state is neutral regarding any and all religions will people be free to believe or disbelieve by their own conviction, which is the only way to be truly religious.

“It is therefore important to deny the state the claim that it can be Islamic, or to link my rights as a citizen to my religious belief or lack of it,” he said. “Who decides who is a Muslim and who is not? My relationship to the state is as a citizen. How I live as a Muslim and my relationship to other Muslims is not the business of the state.”

When considering issues of morality, An-Na’im said it is best to focus on the specific society in question rather than on ideals of Shari`a in general. Therefore, when examining Islam’s relationship to human rights within the modern legal system of a nation state, one should not confuse the ideals of Islam with the actual morality of society.

“Human rights become law only through the agency of the state,” he said. “International human rights norms are supposed to regulate what the state can and cannot do, yet we have to rely on the state to implement human rights norms within its own jurisdiction. This is what I call the paradox of self-regulation by the state, that we rely on the state to protect our human rights against violations by the same state.

“To mediate this paradox,” An-Na`im continued, “we need to develop popular commitment to human rights in civil society that can then pressure state institutions to protect human rights. International norms of human rights are not likely to have practical application except through mobilization of political forces in society. This is influenced by Shari`a among Muslims, but also by other factors as well.”

David Novak, Shiff Chair of Jewish Studies at the University of Toronto, spoke about an alternative view of human rights as “divine entitlements.”

“There is little doubt that in the democracies in which most of us live, and in which almost all of us want to live, the question of human rights is ubiquitous in both specifically legal and more general political discourse,” Novak said. “But what role does this great moral question play in religious discourse?”

The three Abrahamic religions, which Novak said should more rightfully be referred to as the “three religions of monotheistic revelations,” are assumed to be skeptical of the idea of human rights, viewing it as an “illegitimate secular intrusion into a sacred domain – a domain characterized by duties, not rights.”

In turn, he said, those who work toward the definition and recognition of human rights have sometimes scorned the idea that these religions have anything to contribute to such conversations in “secular democracies, which do not require the approval of any faith tradition for any of their norms and public policies.”

But, Novak argued, there is a long weaving of the idea of human rights into the Jewish tradition, with real examples of its practical applications, that has much to contribute to the current discourse.

Moreover, he said, the current liberal notion of human rights is too narrow, over-emphasizing individual rights while ignoring communal rights.

“As creator and sovereign of the universe, God is the original right holder, and the only one who can create and enforce everlasting and irrevocable entitlements,” he said. “The rights of creatures, however, are all derivative. It is far more plausible to assume that God is the source of human rights than to assume that either individual humans receive their rights from the community, or that the community receives its rights from its individual members, or that humans give themselves their own rights.”

So when people make their claims to “life, liberty, and the pursuit of happiness,” said Novak, larger questions than those of a secular nature must be considered.

In this way, he said, theology does, indeed, contribute substantially to the discourse, “without in any way compromising its own unique religious integrity.”

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