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Religion and Human Rights: an Introduction/Edited by John Witte, Jr ■ Religion and Human Rights This page intentionally left blank Religion and Human Rights An Introduction edited by John Witte, Jr. and M. Christian Green 1 1 Oxford University Press, Inc., publishes works that further Oxford University’s objective of excellence in research, scholarship, and education. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offi ces in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Th ailand Turkey Ukraine Vietnam Copyright © 2012 by Oxford University Press, Inc. Cover art: Printed by permission of the Norman Rockwell Family Agency Book Rights Copyright © 1961 Th e Norman Rockwell Family Entities Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 www.oup.com Oxford is a registered trademark of Oxford University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press. Library of Congress Cataloging-in-Publication Data Religion and human rights: an introduction/edited by John Witte, Jr. and M. Christian Green. p. cm. Includes index. ISBN 978-0-19-973344-6 (pbk.: alk. paper) — ISBN 978-0-19-973345-3 (hardcover: alk. paper) 1. Human rights — Religious aspects. 2. Religions. 3. Religion and politics. I. Witte, John, Jr. 1959– II. Green, M. Christian (Martha Christian), 1968– BL65.H78R43 2011 201. ’ 723 — dc22 2011007070 1 3 5 7 9 8 6 4 2 Printed in the United States of America on acid-free paper ■ contents F o r e w o r d v i i martin e. marty Preface and Acknowledgements xiii Contributors xvii Introduction 3 john witte, jr. and m. christian green part one ■ Human Rights and Religious Traditions 1 A Jewish Th eory of Human Rights 27 david novak 2 Christianity and Human Rights 42 nicholas p. wolterstorff 3 Islam and Human Rights 56 abdullahi ahmed an-na’im 4 Hinduism and Human Rights 71 werner menski 5 Confucianism and Human Rights 87 joseph c. w. chan 6 Buddhism and Human Rights 103 sallie b. king 7 Indigenous Religion and Human Rights 119 ronald niezen 8 Religion, Human Rights, and Public Reason: Th e Role and Limits of a Secular Rationale 135 david little part two ■ Religion and Modern Human Rights Issues 9 Th e Phases and Functions of Freedom of Conscience 155 steven d. smith v vi ■ Contents 10 Religion and Freedom of Choice 170 paul m. taylor 11 Religion and Freedom of Expression 188 carolyn evans 12 Religion, Equality, and Non-Discrimination 204 nazila ghanea 13 Religion and Freedom of Association 218 natan lerner 1 4 Th e Right to Self-Determination of Religious Communities 236 johan d. van der vyver 15 Permissible Limitations on the Freedom of Religion or Belief 254 t. jeremy gunn 1 6 Th e Right to Religious and Moral Freedom 269 michael j. perry 17 Keeping Faith: Reconciling Women’s Human Rights and Religion 281 madhavi sunder 18 Religion and Children’s Rights 299 barbara bennett woodhouse 19 Religion and Economic, Social, and Cultural Rights 316 ingvill thorson plesner 20 Religion and Environmental Rights 330 willis jenkins 21 Religion, Violence, and the Right to Peace 346 r. scott appleby 22 Patterns of Religion State Relations 360 w. cole durham, jr. I n d e x 379 ■ foreword For several years, in order to take part in a University of Minnesota Law School project, I accepted the invitation of Professor Robert Stein to spend a day annually with advanced participants. Th ey were working with him on “Th e Rule of Law.” Religion, not law, being my own scholarly fi eld, I might have felt out of place. Th e fi rst session convinced me that religion was very much in place, a conviction rein- forced now by my reading of the essays which follow. Th e subfi eld I was to address had to do with my own project of some years earlier, a comparative study of the ways in which what we called “militant religious fundamentalisms” related to the rule of law in various polities and nations. Finding cases for examination back then was easy, particularly because in the score of years aft er the Cold War ended, few subjects bade for attention more urgently than understanding such totalistic and belligerent uses of religion in international aff airs. In my several meetings with the seminar, I would come armed with an outline of that season’s topic and a sheaf of recent clippings or print-outs detailing the ways such religious movements or governments created problems for everyone who did not share the fundamentalists’ views. Signifi cantly, almost all these documentations, no matter what other topics they discussed — whether ritual, doctrine, strategy, or ways of life — revealed that the pinch point, fi nally, was the rule of law and challenges to it. So radically did these problems and points increase in number and complexity that in 2008 I threw in the fi gurative towel, admitting in combined awe and resig- nation that I could not stay ahead or even keep up. Had this new book been available to me, I would have had much more to say and explore in the face of these most stressful and distressing set of questions. Th ese revolved around one theme: What does religion or what do religions have to say about human rights, and, what do legal, political, and military confl icts over human rights have to do with and say about religion? Th e “Rule of Law” seminars did not isolate and concentrate on this most pro- found theme, but instead set it into context. To prepare for that pursuit, I found signifi cant resource in a book which anticipates this one: Religious Human Rights in Global Perspective: Religious Perspectives (John Witte, Jr., and Johan D. van der Vyver, eds. (Th e Hague: Martinus Nijhoff , 1996)). Some of the authors in that ear- lier book reappear in this one, having been given an opportunity to revisit, update, and advance their earlier research and essays. What is here now reinforces the case that the question of “Religious Human Rights” is at or near the center of multi- tudes of “rule of law” issues with which legal scholars, jurists, lawyers, religious leaders, and the public must deal. Were I to return to the scene of the seminars in Minnesota, this would be my fi rst reference work and a volume I would commend vii viii ■ Foreword to students and publics whose specialty is far from “Law and Religion.” Nowhere can readers become familiar with the many dimensions of the subject as effi ciently or confi dently as they can if they are attentive to these essays by legal scholars who have long pursued the subject. Readers who approach Religion and Human Rights with a highlighter or underliner in hand will likely end up with a colorful yellow and red manuscript if they simply accent the various subthemes which appear as bonuses in this book. Take one illustration, the question of “the secular” — or secularization as manifest in learning and law. For decades, most of higher education, intellectual, and pro- fessional life in European and American cultures have been structured in ways which admirers of the secularization thesis observe. It consists in a persistent and ever-increasing segregation or dismissal of religion from most serious inquiries. Aft er the eighteenth century, it is noticed, various cultures, beginning in the West, have turned to rational, not revelational, texts and modes of approach to explore and settle controverted issues and chart practical ways of life. Th e phrase “separa- tion of church and state,” for instance, reduces almost to cliché an instance of the setting aside and boxing in of religious concerns in public life. Whoever called attention to the signs suggesting that religion endured and even prospered in the century past was oft en dismissed as a victim of cultural lag, a special pleader for contending theologies or, some cynics would say, for the place of religious studies departments in universities and the placing of the Ten Commandments in public school rooms. Secularization pure and simply had “won.” Aft er that victory, it was said, the world might be less colorful, but it would be more peaceful, given the unsettlement which religion brings to so many sectors of life. However, the victory of “the secular” was not pure and it certainly was not simple. Numbers of authors in this collection comment that their essay deals with complexity. Readers will likely agree. So the authors ask explicitly, or their cases demonstrate implicitly, that the ways in which “the secular” and “the religious” meet are anything but settled anywhere. Readers in the West who readily comment on how disturbing relations between the two are in other parts of the world will be reminded here, as elsewhere, that there are disturbances and challenges even in the United States. Its citizens may boast of the ways their nation has resolved many of the issues, but they are re-learning that few arguments which reach the United States Supreme Court or are on the agenda of local school boards are as disruptive of serenity and peace as are “church-state” contentions, which go to the heart of religion and human rights. Th ese contentions deal not only with doctrines, be they theological or judicial, but also and more vividly with practices.
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