Freeman-HHRR and Secularity

The Problem of Secularism in Human Rights Theory

Freeman, Michael, 1936-

Human Rights Quarterly, Volume 26, Number 2, May 2004, pp. 375-400(Article)

Published by The Johns Hopkins University PressDOI: 10.1353/hrq.2004.0020

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HUMAN RIGHTS QUARTERLY

Human Rights Quarterly 26 (2004) 375–400 © 2004 by The Johns Hopkins University Press

The Problem of Secularism inHuman Rights Theory

Michael Freeman*

ABSTRACT

Theorists and practitioners commonly assume that the concept of humanrights is secular and that it normally takes priority over other values. Theseassumptions are controversial for those who approach human rights fromthe perspective of religious beliefs. This article examines the argumentsboth of those who claim that religious beliefs must interpret human rightsin their own terms and those who claim priority for the international(secular) legal understanding of the concept. It compares Western andIslamic approaches to religion, secularism, and human rights, and reachestwo conclusions: 1) at the philosophical level, there may be no decisiveargument for according priority to secularism or religion; 2) the politics ofthis debate may be more important in practice than questions of religiousphilosophy.

I. THE PRIORITY OF HUMAN RIGHTS

The United Nations’ conception of human rights accords to its principlesand norms a certain priority over competing considerations. The UniversalDeclaration of Human Rights, for example, associates human rights with“the highest aspiration” of the common people, and proclaims itself to be a“common standard” for all.1 It is well known that this claim raises questionsabout the validity of universal principles in a culturally diverse world, and

* Michael Freeman is a Research Professor of Political Theory in the Department ofGovernment, University of Essex, United Kingdom.1. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III),

U.N. GAOR, 3d Sess. (Resolutions, part 1), at 71, U.N. Doc. A/810 (1948), reprinted in43 AM. J. INT’L L. SUPP. 127 (1949).

Vol. 26376 HUMAN RIGHTS QUARTERLY

these questions have been thoroughly discussed in human rights theory.2

Human rights advocates commonly assume that human rights provide the“common,” that is universal, standard, and that the question of “culture” iseither how cultural barriers to the implementation of human rights standardsmight be removed, or to what extent concessions might legitimately bemade to cultural diversity from the standpoint of universality. These are,however, not the only ways in which the question may be posed. Many ofthe world’s cultures, especially those associated with the great religions andphilosophies such as Confucianism, Buddhism, Judaism, Christianity, andIslam are ancient, widespread, and deeply rooted in the lives, beliefs, andvalues of billions of people. It is often said that these religions andphilosophies can support human rights, but there is no doubt that somehuman rights norms can conflict with some requirements of religion orphilosophy. Insofar as these beliefs provide for those who hold them themost fundamental reasons for action, it is not obvious why they should yieldto human rights standards in cases of conflict.

This question of the possible conflict between human rights principlesand religions or philosophies has resided at the heart of human rights theoryfrom the beginning. While the Universal Declaration was being drafted,United Nations Economic, Scientific and Cultural Organization (UNESCO)undertook an investigation into the theoretical problems of such a project.In his introduction to the published results of this investigation, JacquesMaritain argued that a consensus on the justification of human rights wouldbe impossible because of the diversity of philosophies around the world.3

Maritain could justify the concept on the basis of his philosophy, which hebelieved to be true, but he could not reasonably expect that there would bea global consensus on this justification. There might be a consensus on whathuman rights there were, but not on why there were these rights. Differentphilosophies might justify human rights in different ways, but they mightwell differ in their specification on the limits of, and mutual relationsamong, human rights. He warned that the attempt to achieve a globalconsensus on human rights might produce an agreed text, but the differentphilosophies might prove to be barriers to the implementation of theprinciples contained in the text.4 This raises the question as to whether thepriority that human rights discourse gives to human rights over other valuesis itself a universally valid value. The assumption that it is has been

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.

2004 Secularism in Human Rights Theory 377

challenged by the recently developed concept of internal dialogue abouthuman rights.

II. THE CHALLENGE OF INTERNAL DIALOGUE

The concept of “internal dialogue” does not challenge the universality ofhuman rights directly, but does so indirectly by insisting that the theory andpractice of human rights ought to be developed by dialogue internal tocultures. For example, Article 20 of the Constitution of the Islamic Republicof Iran states that all citizens enjoy all human rights equally “in conformitywith Islamic criteria.”5 Human rights advocates might believe that thereference to Islamic criteria simply undermines the apparent commitment tothe universality of human rights.6 Muslims might respond, however, byaffirming that if they are to subscribe to human rights principles, they mustdo so “in conformity with Islamic criteria.” To do otherwise would be toabandon their religion, which cannot reasonably be required by theinternational human rights community, most obviously because Article 18of the Universal Declaration guarantees their right to freedom of religion.7

Norani Othman, a Malaysian Islamic women’s rights activist, hasacknowledged that there are conflicts between human rights and commonformulations of Islam.8 Muslims, she argues, can decide to what extent theyshould accept the concepts that are supposed to provide the basis for auniversal conception of human rights only after they have critically re-evaluated their Islamic heritage.9 Human rights activism must be groundedin local culture. Where religious orthodoxy is a source of laws that violatehuman rights, internal religious contestation is necessary. There are, forexample, Islamic objections to the UN Convention on the Elimination of AllForms of Discrimination against Women (CEDAW).10 These objections mustbe met by Islamic responses. Given the deep commitment of Muslims totheir religion, such responses are likely to be much more effective thandirect appeals to international law. Othman believes that such responsescan be made by the reinterpretation of Islam’s foundational religious texts

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, adopted18 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).


and by providing historical contexts for the provisions of Islamic law(Shari’a) that conflict with human rights requirements.11 The Qur’an, shemaintains, can provide a source for the affirmation of human rights. On thisfoundation, the demands of Islam can be interpreted in the light of modernconditions so as to bring them into conformity with human rights stan-dards.12 This can be achieved only through a sensitive, internal culturaldiscourse.13 Ultimately, she writes, the primary project for Muslim women’sgroups, in their struggle for women’s rights, is not the recognition of CEDAWper se, but consensus within their own culture that the kinds of women’srights they are advocating are acceptable on the grounds of a public ethicderived from their own cultural and religious sources.14 In an Islamicsociety, human rights need Islamic legitimacy. The advancement of humanrights in Islamic societies requires a religious rather than the secularapproach familiar to most human rights activists, especially in the West.

Othman’s Islamic conception of human rights is offered to “all faithfulbelievers” and “all who may yet come to recognize the supremacy of Allah,that is, all of humankind.”15 This seems to mean that “human rights” are therights of actual and potential Muslims, but possibly not of those who areunlikely to become Muslims, including non-Muslim minorities in predomi-nantly Muslim societies such as Malaysia. Othman’s project for an Islamicconception of human rights may, therefore, have some strategic value inMalaysia, but it does not generate a convincing conception of universalhuman rights.16

Abdullahi An-Na’im also seeks to root human rights in Islam. He arguesthat the concept of human rights raises questions of cultural legitimacybecause international law in general, and international human rights law inparticular, were formed by a small clique of lawyers, bureaucrats, andintellectuals at a time when Western culture was hegemonic.17 Theimplementation of human rights requires, therefore, that the problem oftheir internal cultural legitimacy be solved. If a culture appears prima facieto be incompatible with human rights, it can be reformed, whether

11. Othman, supra note 8, at 172.12. Id. at 173–77.13. Id. at 189.14. Id.15. Id.16. Othman, supra note 8, at 169. Othman’s approach also offers little to women such as

Ayaan Hirsi Ali, who rejected Islam and campaigned for the rights of Muslim women inthe Netherlands. See Andrew Osborn, She Dared to Criticise Islam, Now She is Fleeingfor Her Life, OBSERVER (London), 10 Nov. 2002, at 3, available at observer.guardian.co.uk/international/story/0,6903,837035,00.html.

17. Abdullahi A. An-Na’im, Problems of Universal Cultural Legitimacy for Human Rights, inHUMAN RIGHTS IN AFRICA: CROSS-CULTURAL PERSPECTIVES 349–50 (Abdullahi A. An-Na’im &Francis M. Deng eds., 1990).


internally or externally, only on the basis of respect for its traditions and ofsensitivity to its criteria of legitimacy.18 It may be counter-productive forexternal human rights reformers to position subordinated internal reformersas agents of an alien culture.

The Qur’an is, for Muslims, the word of God. Many Muslims believethat 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, inthis, is clearly not in conformity with international human rights law. Thisraises the question of why a Muslim should judge Shari’a by human rightsstandards. An-Na’im argues that the secular approach to human rights failsto 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 proponentsof 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 isincompatible with human rights, and secularism, which is incompatiblewith Islam.21 He does this by distinguishing between the basic values of theQur’an, which is associated with the Prophet’s life in Mecca, and itshistorically contingent rules, which are associated with his move toMedina.22 Further, he argues that Shari’a was constructed by Muslim juristsover the first three centuries of Islam and is therefore not divine law. NowMuslims have to live in a world of nation-states, constitutionalism andinternational law.23 The Qur’an can retain its status as the religious basis ofMuslim life, but it must be adapted to modern political conditions. It can, hemaintains, be interpreted to support equal citizenship for men and women,for Muslims and non-Muslims. This reformed, but still Qur’anic, Islamwould thus conform with human rights.24

An-Na’im does not believe that Muslims and secular human rightsadvocates will always agree on the interpretation of human rights.25 Oneproblematic area is that of hudud: the criminal offences for which theQur’an and/or Sunna (traditions of the Prophet) provide explicit punishments,

18. Id. at 366.19. ABDULLAHI A. AN-NA’IM, TOWARD AN ISLAMIC REFORMATION: CIVIL LIBERTIES, HUMAN RIGHTS, AND

INTERNATIONAL LAW 67 (1990).20. Id.21. Id. at 161.22. Id. at 12–13.23. Id. at 7–8, 74.24. Id. at 84.25. Abdullahi Abdul An-na’im, Toward a Cross-Cultural Approch to Defining International

Standards of Human Rights: The Meaning of Cruel, Inhuman, or Degrading Treatmentor Punishment, in HUMAN RIGHTS IN CROSS-CULTURAL PERSPECTIVES: A QUEST FOR CONSENSUS 36(Abdullahi A. An-Na’im ed., 1992).


such as the amputation of a thief’s hand. These raise special difficulties, asmany Muslims believe that God has decreed such punishments, and thatthose who suffer them will be rewarded in the afterlife.26 These beliefs are sodeeply rooted that An-Na’im doubts that the punishments can be removedentirely from Islamic law.27 Here, what Muslims believe to be the will ofGod conflicts with the prohibition by the usual, secular interpretation ofhuman rights law of cruel, inhuman and degrading treatment. Evenreformed Islam, therefore, will remain in some tension with dominantinterpretations of human rights.28

Mohammed Arkoun rejects An-Na’im’s approach because he holds thatthe problem of the relation between Islam and modernity, including humanrights, is political rather than scriptural.29 Islamic elites have mobilizedconservative readings of the Qur’an for political purposes. This strategy hashad some success because it appeals to those who have suffered fromWestern intrusions into the Islamic world or from the policies of localWesternized elites. A religion that offers self-esteem, solidarity, and eternalrewards may for some be more attractive than the theoretical egalitarianismof international law that seems in practice to serve the purposes only of therich and powerful.30 Ann Elizabeth Mayer suggests that An-Na’im’s reformprogram for Islam may be too radical and too influenced by the modern Westto be acceptable to those Muslims that he is trying to convince, while actual“fundamentalist” elites have shown ambivalence in the application of hududpenalties.31 Mayer agrees with Arkoun that the problem may be politicalrather than religious in that “fundamentalism” flourishes under political

26. Id. at 35–36.27. Id. at 36.28. Abdullahi A. An-Na’im, A Modern Approach to Human Rights in Islam: Foundations

and Implications for Africa, in HUMAN RIGHTS AND DEVELOPMENT IN AFRICA 75 (Claude E.Welch, Jr. & Ronald I. Meltzer eds., 1984); Abdullahi A. An-Na’im, Religious Minoritiesunder Islamic Law and the Limits of Cultural Relativism, 9 Hum. Rts. Q. 1–18 (1987);Abdullahi A. An-Na’im, Islam, Islamic Law and the Dilemma of Cultural Legitimacy forUniversal Human Rights, in ASIAN PERSPECTIVES ON HUMAN RIGHTS 31 (Claude E. Welch &Virginia A. Leary eds., 1990); Abdullahi A. An-Na’im, Problems of Universal CulturalLegitimacy for Human Rights, in HUMAN RIGHTS IN AFRICA: CROSS CULTURAL PERSPECTIVES 331(Abdullahi A. An-Na’im & Francis M. Deng eds., 1990); Abdullahi A. An-Na’im,Toward a Cross-Cultural Approach to Defining International Standards of HumanRights: The Meaning of Cruel, Inhuman, or Degrading Treatment or Punishment, inHUMAN RIGHTS IN CROSS-CULTURAL PERSPECTIVES: A QUEST FOR CONSENSUS 19 (Abdullahi A. An-Na’im ed., 1992).

29. Mohammed Arkoun, The Concept of “Islamic Reformation,” in ISLAMIC LAW REFORM AND

HUMAN RIGHTS: CHALLENGES AND REJOINDERS 11–24 (Tore Lindholm & Kari Vogt eds., 1993).30. Id. at 21–23.31. Ann Elizabeth Mayer, A Critique of An-Na’im’s Assessment of Islamic Criminal Justice,

in ISLAMIC LAW REFORM AND HUMAN RIGHTS: CHALLENGES AND REJOINDERS 37–60 (Tore Lindholm &Kari Vogt eds., 1993).


authoritarianism.32 In reply, An-Na’im does not deny that the problem ofIslamic “fundamentalism” may arise from the politics of post-colonialism, butcontinues to argue that the solution must be reformed Islam and not secular.33

Both Othman and An-Na’im seek to reconcile human rights and Islamby re-interpreting Islam. Their projects are not quite the same, however.Othman seeks to liberalize Islam, and is somewhat indifferent to interna-tional human rights law. An-Na’im, by contrast, seeks an Islamic foundationfor international human rights law. His project is therefore to Islamicizehuman rights. An-Na’im is clearer than Othman in conceiving of humanrights as universal and as not privileging Muslims. Both reject the secularapproach to human rights, and both leave open the possibility that Islamichuman rights will turn out to be somewhat different from secular humanrights. In different ways, both seek to reconcile human rights to Islamthrough an internal reform of Islam that does not recognize the priority ofhuman rights to fundamental religious beliefs.

III. THE CONCEPT OF UNIVERSALITY REVISITED

In view of this “internalist” challenge, it is useful to re-examine the claims ofhuman rights universalism. Jack Donnelly offers something like a paradig-matic analysis.34 “Human rights are the rights one has simply because one isa human being.”35 Consequently, they are held universally by all humanbeings. They are “the highest moral rights,” and “in ordinary circumstancesthey take priority over other moral, legal, and political claims.”36 Humanrights are universal also in the sense that “they are almost universallyaccepted—at least in word, or as ideal standards.”37 We can presume,therefore, that human rights are universal, “although that presumption canbe overcome in particular circumstances by specific cultural arguments.”38

32. Id. at 59; Arkoun, supra note 29, at 12.33. Abdullahi A. An-Na’im, Islamic Foundations of Religious Human Rights, in RELIGIOUS

HUMAN RIGHTS IN GLOBAL PERSPECTIVE: RELIGIOUS PERSPECTIVES 337–60 (John Witte, Jr. & Johan D.van der Vyver eds., 1996).

34. See JACK DONNELLY, THE CONCEPT OF HUMAN RIGHTS (1985); DONNELLY, UNIVERSAL HUMAN RIGHTS,supra note 2; Jack Donnelly, The Social Construction of Human Rights, in HUMAN RIGHTS

IN GLOBAL POLITICS (Tim Dunne & Nicholas J. Wheeler eds., 1999); Jack Donnelly, HumanRights and Asian Values: A Defense of “Western” Universalism, in THE EAST ASIAN

CHALLENGE FOR HUMAN RIGHTS, supra note 8; Jack Donnelly, The Universal DeclarationModel of Human Rights: A Liberal Defense, 12 HUM. RTS. WORKING PAPERS, available atwww.du.edu/humanrights/workingpapers/papers/12-donnelly-02-01.pdf.

35. DONNELLY, UNIVERSAL HUMAN RIGHTS, supra note 2, at 1.36. Id.37. Id.38. Id. at 122.


To overcome the presumption of universality, one would have to show thata vision of human nature or society was both incompatible with universalhuman rights and morally defensible.39

So-called non-Western conceptions of human rights are not concep-tions of human rights at all, but alternative conceptions of human dignity.40

All societies have conceptions of human dignity, but the concept of humanrights emerged only in the modern West, principally in response to the riseof modern states and modern markets.41 Similar changes in virtually allareas of the world have given human rights a nearly universal contemporaryapplicability. Human rights require liberal or social-democratic regimes, butvariations in the details of implementation may be allowed, and evenrequired, in order to accommodate “valued cultural practices,” providedthat these practices are not fundamentally incompatible with universalhuman rights.42

Human rights, for Donnelly, arise from the inherent dignity of thehuman being, and are needed for a life worthy of a human being.43 Theyalso arise from human action, and are not given to man by God or Nature.44

They represent a choice of a particular moral vision of human potentiality.45

“When human rights claims have brought legal and political practice intoline with their demands, they will have created the type of person posited inthat moral vision.”46 Without the enjoyment of the objects of human rights,Donnelly claims, one is almost certain to be alienated from one’s moralnature.47 Donnelly’s conception of human rights is thus based on secularhumanism. In this, it conforms with most contemporary, Western, academicmoral and political philosophy, but it is question-begging in that it assumesthe inappropriateness of theocentric conceptions of human dignity andhuman rights.

Donnelly admits that it is difficult to justify human rights philosophi-cally.48 This might be a serious defect in a theory of human rights, he admits,if there were substantial disagreement about what human rights therewere.49 There is, fortunately, “a remarkable international normative consen-sus on the list of rights . . . based on a plausible and attractive theory of

39. Id. at 1, 9–12, 23, 122.40. Id. at 2.41. Id.42. Id. at 3.43. Id. at 17.44. Id. at 17.45. Id.46. Id. at 18.47. Id. at 19.48. Id. at 21.49. Id. at 23.


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 moralvision.”51

There are societies, Donnelly acknowledges, that seek to realize humandignity 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 onlyduties, not human rights. The social and political precepts of Islam,Donnelly acknowledges, reflect a strong concern for human good andhuman dignity.53 Such a concern is a prerequisite for the concept of humanrights, but it is not equivalent to the recognition of human rights. To“incorporate” non-Western understandings and practices with respect tohuman rights would come “dangerously close” to destroying or denyinghuman rights “as they have been understood.”54 Donnelly assumes, contraryto the approaches of An-Na’im and Othman, that non-Western understand-ings are to be incorporated into the discourse of human rights rather thanvice versa, and that non-Western understandings would undermine theconcept of human rights.55

Donnelly has recently recognized that Muslims have developed Islamicdoctrines of human rights that are “strikingly similar in substance” to theUniversal Declaration.56 This appears to represent a shift in his position,because he now implicitly acknowledges that Islamic conceptions ofhuman dignity include, not only the prerequisites for the concept of humanrights, but also the potential for developing it. This acknowledgment bringsDonnelly closer to An-Na’im and Othman.

Donnelly concedes that, in small traditional communities, many of thevalues that are protected in the West by human rights are protected by othermeans,57 and that the traditional conception of human dignity might besuperior to that of human rights liberalism. Perhaps most people wouldprefer regulated, secure social roles with their concomitant sense ofbelonging 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.


individuals from the small, supportive community, and left them unpro-tected from assaults on their dignity by modern social, economic andpolitical institutions.58 In this situation, human rights are necessary to protecthuman dignity.59 The needs of human dignity in developing countries todayare largely the same as they were in past centuries in the West. “In suchcircumstances, human rights appear to be a natural response to changingconditions, a logical and necessary evolution of the means to realize humandignity.”60 The claim that human rights appear to be a “necessary evolution”seems inconsistent with Donnelly’s belief that human rights represent “asocial choice of a particular moral vision of human potentiality.”61 Ifresponses to the threats to human dignity posed by modernity are chosen,then religious alternatives to human rights may be chosen, and cannot bedefeated by the appeal to modernity alone.

Donnelly defends human rights universalism against certain forms ofrelativism. He sees “relativism” as “cultural,” but does not address theparticular challenge of religion. Universal human rights standards, he says,serve as a check on potential “excesses” of relativism.62 Nonetheless, certaintypes 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 ofhuman nature not only permits, but also requires, significant allowance forcross-cultural variations in human rights.64

Donnelly argues that respect for autonomous moral communitiesdemands internal evaluations of their cultures, but, he says, to rely oninternal judgements alone “abrogates one’s moral responsibilities as amember of the cosmopolitan moral community.”65 He associates these with“the inherent universality of basic moral precepts, at least as we understandmorality in the West.”66 “We simply do not believe,” he maintains, “that ourmoral precepts are for us and us alone.”67 He then cites Kantian and otherdeontological moral theories, utilitarianism, and human rights theories.“Our moral precepts are our moral precepts. As such, they demandobedience 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. Id. at 112.65. Id. at 114.66. Id. at 116.67. Id. at 116.68. Id.


conformity with our precepts are wrong.69 Donnelly concedes that Westernmorality is diverse, but does not acknowledge that the Western philosophiesthat he cites have different implications for human rights.70 His argumentmoves from a cosmopolitan affirmation of universality to a Western moralrejection of incompatible moralities. This ends as a dogmatic affirmation ofthe universal applicability of the Western conception of human rights thatprovides little argument against either Western or non-Western opponents,apart from the not entirely convincing claim that human rights are necessaryto protect human dignity under modern conditions.71

IV. THE RELIGIOUS POINT OF VIEW

Donnelly seeks to strike a balance between the universality of human rightsand the demands of culture, but, in his analysis, culture makes legitimatedemands primarily if it protects “human dignity.” His conception of humanrights presupposes a philosophical anthropology, although he admits that itis difficult to defend one convincingly.72 His solution to this problem istwofold: first, he claims that different philosophies can support humanrights; and secondly, he appeals to the international consensus, although heallows that consensus as such does not defend a moral position ad-equately.73 This approach would not refute arguments that either respecthuman dignity without recognizing human rights or dispense with humandignity. Some religions emphasize the sinfulness or degraded nature ofhuman beings. The point of some religions is not to protect human dignity,which they may deem to be impossible or undesirable, but to save souls orto unite with the cosmos. To such religions Donnelly can say only that ourvalues are our values, but this rather Rortyan approach seems to give up ondialogue too quickly.74

Donnelly follows the UN in believing that a secular approach to humanrights is adequate, even necessary, in view of the world’s diversity ofreligious and philosophical beliefs. This assumes, however, that secularismis neutral between these beliefs. This is precisely what some religiousbelievers dispute. Donnelly acknowledges that religions such as Islamchallenge the concept of human rights, but his principal response to this

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).


challenge is to claim that modern institutions threaten human dignity, andthat the concept of human rights is, at least in most circumstances, the best,or the only, adequate protection against the threat.75 He does concedeoccasionally that other cultures may sometimes do this better.76 But he doesnot address the possibility that the appeal of religions such as Islam may beprecisely that they seem to their adherents to protect human dignity undermodern conditions, especially the modern condition of Western economic,political, and cultural hegemony. Donnelly accepts these as either inevi-table or desirable.77 Dignity and consensus do most of the theoretical workfor Donnelly’s human rights, but these leave human rights vulnerable tothose who believe, as he does sometimes, that dignity is better protectedwith different cultural and institutional measures, and who dissent from theinternational consensus on human rights.

Donnelly’s appeal to consensus is vulnerable to an objection from thepoint of view of salvationist religions. If there is a conflict betweeninternational human rights law and what a believer holds is necessary foreternal salvation, it would be both irrational and impious to accord priorityto the law. It is true that international human rights law recognizes the rightto freedom of conscience and religion, but it is silent on conflicts betweenreligion and other human rights. The claims of conscience are, historicallyand logically, stubborn obstacles to contradictory demands of universalhuman rights.

Donnelly’s claim that the concept of human rights emerged in the Westas a response to the modern state and modern capitalism suggests that theconcept has always been a secular solution to a set of secular problems.78

This is historically inaccurate. The concept of human rights emerged in theWest, to an important extent, as a religious response to a set of problemsthat was both religious and political at a time when religion and politicswere inseparable. Gradually, the concept became secularized. The story ofthe secularization of human rights in the West is an important part of aninformed dialogue between contemporary secularists and religious believ-ers about the universality of human rights.

75. Id. at 60.76. Id. at 59.77. Id. at 59–60.78. Id. at 59–60, 104–6.


V. THE HIDDEN GOD IN HUMAN RIGHTS

Donnelly finds the roots of the Western approach to human rights in theseventeenth century, particularly in England.79 He says that a fully developed,liberal, natural-rights conception of politics had become well established inEnglish political debate by the time of John Locke’s Two Treatises ofGovernment. He describes the Second Treatise as one of the standardsources of the conventional conception of human rights.80 Donnelly refersto Locke’s two treatises, but moves swiftly to a reading only of the secondtreatise.

Donnelly mentions, vaguely, the “brief introduction” of the SecondTreatise.81 This introduction, however, summarizes the argument of the FirstTreatise, which is a critique of the biblical interpretation proposed by SirRobert Filmer.82 Locke disputed Filmer’s interpretation of the Bible because,while Filmer had used the Bible to defend absolute monarchy, Locke usedit to defend natural rights and limited government. By ignoring the FirstTreatise, Donnelly suppresses the religious character of Locke’s conceptionof natural rights.

According to Donnelly, the Second Treatise begins by arguing that menare naturally in a state of perfect freedom and equality, and that each personhas natural rights to freedom and equality.83 Locke actually wrote that menwere naturally in a state of perfect freedom to order their actions, anddispose of their possessions and persons as they thought fit, “within thebounds of the Law of Nature.”84 This was also a state of equality, “therebeing nothing more evident” than that creatures of the same species born tothe same advantages of nature should be equal without subordination,“unless the Lord and Master of them all should, by any manifest declarationof his will, set one above another, and confer on him by an evident andclear appointment an undoubted right to dominion and sovereignty.”85

Thus, Locke maintained that the natural freedom of men was bounded bythe Law of Nature, the source of which, in his philosophy, was God. He alsosaid that men were naturally equal, unless God had set one above another“by any manifest declaration of his will.”86 The Second Treatise, therefore,

79. Rorty, supra note 74, at 89.80. Id.81. Id.82. JOHN LOCKE, TWO TREATISES OF GOVERNMENT 285–86 (1970).83. DONNELLY, UNIVERSAL HUMAN RIGHTS, supra note 2, at 89.84. LOCKE, TWO TREATIES, supra note 82, at 287.85. Id.86. Id.


set its theory of natural rights within a Christian, natural-law philosophicalframework.

Donnelly identifies paragraph seven of the Second Treatise as the startof Locke’s discussion of natural rights.87 This is correct, but again omits thereligious argument, which is clear from a passage in paragraph six. HereLocke said that the state of nature had a law of nature to govern it “whichobliges everyone,” and Reason, “which is that law,” teaches all mankindwho will consult it that no-one ought to harm another in his life, health,liberty, or possessions.88

For men being all the workmanship of one omnipotent and infinitely wisemaker, all the servants of one sovereign master, sent into the world by his orderand about his business, they are his property, whose workmanship they are,made to last during his, not one another’s pleasure.89

Paragraph seven then introduces the concept of “rights” by saying that, inorder to restrain all men from invading others’ rights and to ensure that thelaw of nature is observed, the execution of the law of nature is put into everyman’s hands so that everyone has a right to punish transgressors of the lawto such a degree as may hinder its violation.90

We should note carefully the logic of this important moment in thehistory of the Western theory of human rights. The argument begins, notwith rights, but with the obligation of everyone to obey the law of nature.This obligation is not to harm the life, health, liberty, or possessions ofothers. The ground of this obligation is that all men are the “workmanship”of God, his servants, and his property, and are consequently “made to last”during his pleasure. This obligation not to harm others, Locke assumed,entailed the right of everyone not to be harmed. Locke introduced theconcept of rights almost casually in a discussion of God’s purpose increating mankind, and the consequent obligations of men to God and toeach other. Since the Western origin of the concept of human rights is oftensaid to undermine its universality, it is noteworthy that this origin wasmonotheistic, and may consequently provide common, cross-cultural groundat least among monotheists. This provides a starting-point for a dialogue onhuman rights with Muslims.

In discussing Locke’s contribution to the Western conception of humanrights, Donnelly ignores Locke’s theory of religious toleration that wasperhaps as important as his Second Treatise. Locke’s arguments for religioustoleration were partly pragmatic and partly those of religious principle.

87. DONNELLY, UNIVERSAL HUMAN RIGHTS, supra note 2, at 89.88. LOCKE, TWO TREATIES, supra note 82, at 289.89. Id.90. Id.


Pragmatically, he argued that toleration was more conducive to civil peacethan the attempt to suppress dissent. Christian principles recognizednothing as more important than individual salvation. Religious conflictcreated uncertainty, and the individual had to seek salvation amidst thisuncertainty. God had, however, endowed man with reason so that he coulddiscriminate truth from error, and thereby discover the path to salvation.There were two reasons why each individual had to do this for himself. Thefirst was that religious duty was owed to God, and the commands of thestate might be incompatible with that duty. The second was that salvationrequired sincere religious belief, and political coercion could produce onlyoutward conformity. Locke advocated freedom of conscience, therefore, notfrom religious indifference, but from religious principle. The equality ofrights in Locke’s political theory is based on the equality of religious duties.Freedom of thought was necessary to acquire religious truth, which was inturn necessary to fulfil one’s religious duties. The Christian duty of religioustoleration (which Locke would not extend to Roman Catholics and atheists)provided a ground of the individual right to freedom.91

The development of human rights in the West, therefore, had its origin,not only in secular concerns with modern states and modern markets, butalso with the problem of religious obligation in a world of religious diversityand political authoritarianism. This does not dissolve problems arising fromthe relation between contemporary, secular, humanist conceptions ofhuman rights and religious challengers, but it does show that theocentric,duty-based moralities have the potential to develop robust conceptions ofhuman rights. Thus, Donnelly’s contrast between Western and non-Westernmoral theories is somewhat overdrawn.

VI. THE SECULARIZATION OF NATURAL RIGHTS

The Lockean, theocentric conception of natural rights was weakened andsecularized in the following century in ways that were complex, gradual,and incomplete. Intractable disputes about religious truth led some tobelieve that God’s will was beyond our understanding, and that moralitymust therefore be secular. New Testament Christianity seemed to be thereligion of the poor and the powerless, whereas the Christian Church hadbecome associated with political power and wealth, and thus its legitimacy,judged by Christian standards, was subject to doubt. The Christian claim to

91. JOHN LOCKE, A LETTER CONCERNING TOLERATION (1794, 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).


the moral high ground was also called into question by the cruelty involvedin religious persecution.92

As official Christianity became epistemologically, politically, and mor-ally vulnerable, science and mathematics seemed to offer epistemic securityand liberation from superstition, dogma, and the oppression of priests andrulers claiming divine legitimation. The attempts by the great philosophersof the Enlightenment to reconcile Christianity and science in various waysadded philosophical to religious confusion, while society enjoyed thepractical benefits of scientific and technological progress. The discourse ofrights 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-Romancivilization and of non-European cultures provided alternatives to Christian-ity. Machiavelli had already pioneered a “neo-pagan” political theory. In theeighteenth century European intellectuals could look, not only back toGreece and Rome but also outside Europe, for alternatives to Christianpolitics. This turn of European thought would have mixed results for the ideaof universal human rights, as it opened the door to cultural relativism, andthereby created the conditions for throwing the natural-rights baby out withthe Christian, universalist bathwater. Both neo-classicism and culturalrelativism were means to weakening the hegemony of Christianity, however,and so religion increasingly became, not the source of truth, but the objectof 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, tenuousconnection between religion and the Rights of Man that existed at the endof the eighteenth century.95 The violence and disorder of the Revolutiondiscredited the concept of natural rights without rehabilitating religion. Forsome 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 theintellectual 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 HISTORY 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 onQuakerism and deism. See MARK PHILIP, PAINE 94–113 (1989); GREGORY CLAEYS, THOMAS

PAINE: SOCIAL AND POLITICAL THOUGHT 90–91 (1989).


science.96 Both religion and the Rights of Man were treated by socialscience as ideologies, that is, belief systems that had social significance butnot truth value.

The nineteenth century witnessed the relentless progress of science andtechnology in the West in the face of a defensive reaction by Christianity.The rise of industrial capitalism produced workers and socialist movementsthat claimed various economic, social and political rights. Although thesedemands were sometimes given a Christian justification, these movementswere predominantly secular, and left behind the philosophy of natural law.Although the socialist movement was highly moralistic, there was no clearconsensus on its philosophical basis. Forms of Kantianism and Utilitarian-ism jostled with non-philosophical practical demands, as well as ideasdrawn from post-Hegelian philosophy and scientific positivism. Many ofthese ideas can be found in the thought of Karl Marx.97

By the end of the Second World War, religion still played a role inpublic life in the Western democracies, but politics had become predomi-nantly pragmatic and secular. The United Nations was established with theprimary goal of preventing war. Its commitment to human rights was basedlargely on a moral revulsion against Nazism,98 although it included theeconomic and social rights that had been advocated by workers andsocialist movements. The language of human rights was the best availablefor this purpose, since other philosophies of the time—such as Utilitarian-ism, scientific positivism, and existentialism—did not offer the same kind ofprotection from governmental abuse. Politically, human rights were ex-pressed in secular terms in order to attract universal support. A proposal toinclude a reference to God was made during the drafting of the UniversalDeclaration, but rejected because it was not universally acceptable.99 TheUniversal Declaration grounded human rights in the secularized, neo-Kantian formula of “the dignity and worth of the human person” rather thanon any particular religious doctrine. This formula is not itself very controver-sial, but its implications still are. Wars are not fought for and against thedignity and worth of the human person, but they are fought over whatpolitical 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 Tayeds., 1978); L.J. Macfarlane, Marxist Theory and Human Rights, 17 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.


VII. CONTEMPORARY HUMAN RIGHTS THEORY

The most fundamental problem of contemporary human rights theory isthat, while the concept of human rights seems necessary to oppose abusesof power, there is no consensus on its religious and philosophical foundations.

Donnelly maintains that the concept of human rights is sociallyconstructed.101 This provides no justification of the concept, however. Healso says that there is a global consensus on the concept. Consensus alsodoes not provide a justification, as he admits, and the extent of sincereconsensus is doubtful, as he also admits.102 Donnelly finally justifies humanrights by claiming that they are necessary to defend human dignity undermodern conditions. Yet Donnelly concedes that human dignity can bedefended in societies that lack the concept of human rights, and mustconsequently rely on the claim that the concept is necessary under modernconditions.103 This is controversial, especially since Donnelly associateshuman rights with Western secular liberalism. It is not likely to bepersuasive for those who approach the subject from a religious perspective.

Alan Gewirth maintains that human rights are derived from thenecessary conditions of human action.104 In contrast with Donnelly, Gewirthargues that human rights can be justified neither by inter-governmentalconsensus nor by international human rights law.105 There are two reasonsfor this. First, if human rights were justified only by such a consensus or bythis law, we would have to say that there were no human rights before thisconsensus or this law existed, and this is inconsistent with the definition ofhuman rights as rights that all persons have insofar as they are human.Second, normative theory addresses the question as to which human rightsinternational law ought to recognize, and the answer to this question mustconsist of a moral argument and not an appeal to convention or law.106

Gewirth surveys several arguments for human rights that he considers tobe invalid. Human rights, for example, cannot be justified by appeal tointuition or to their supposed self-evident truth, because intuition and “self-evidence” can support diverse values.107 They cannot be justified byreference to their institutional basis, since that institutional basis itselfrequires justification. No empirical features of human nature, such as basicinterests, can justify human rights, since moral conclusions cannot be

101. DONNELLY, UNIVERSAL HUMAN RIGHTS, supra note 2, at 17.102. Id. at 23.103. Id. at 60.104. ALAN GEWIRTH, HUMAN RIGHTS: ESSAYS ON JUSTIFICATION AND APPLICATIONS x (1982).105. Id. at 41–42.106. Id.107. Id. at 44.


drawn from purely empirical premises.108 To appeal to the inherent dignityof the human person, as the Universal Declaration and Donnelly do, isquestion-begging as it assumes the validity of the principle that is to bejustified. Similarly, Gewirth argues that Rawls’ contractarian argument iscircular in that its egalitarian conclusions are included in its premises.109

There are many philosophical and religious moralities in the world withdifferent, and often mutually inconsistent, contents. Nevertheless, Gewirthclaims, a “certain core meaning” may be elicited from these moralities.110

Gewirth defines a “morality” as a set of categorically obligatory require-ments for action that are addressed to every actual or prospective agent, andthat are intended to further the interests, especially the most importantinterests, of persons other than the agent. The general subject matter ofmorality consists of actions.111 Certain objects are the proximate necessaryconditions of action. It follows logically, he argues, that all rational agentsmust claim, at least implicitly, that they have rights to such objects. Everyagent must regard his or her purposes as good, and must regard as necessarygoods the proximate necessary conditions of his or her acting to achieve hisor her purposes. This is a logical not a descriptive claim. The necessaryconditions of action, on this account, are freedom and well-being.112

Freedom consists in controlling one’s behavior by one’s own unforcedchoice with knowledge of the relevant circumstances. Well-being consistsin having the other general abilities and conditions required for agency.Freedom and well-being are the generic features of action.113

From the claim that freedom and well-being are necessary goods itfollows, according to Gewirth, that agents have prudential rights to freedomand well-being.114 Prudential rights are justified entitlements that entailcorrelative duties. All agents must claim the prudential right to act so as toachieve their goals and claim the obligation of others at least not to interferewith such actions. Since agents must claim this right, qua agent, and not quasome particular kind of agent, they must logically accept that all agents havethe generic rights. These generic rights are moral rights since they require ofall agents that they take favorable account of the most important interests ofall other agents. Since each agent has the same obligation to respect thegeneric rights of all other agents, all agents are equal in generic rights. Sinceall human beings are actual or prospective agents, the generic rights to

108. Id.109. GEWIRTH, HUMAN RIGHTS, supra note 104, at 89.110. Id. at 45.111. Id. at 45–46.112. Id. at 46–47113. Id. at 45–48.114. GEWIRTH, HUMAN RIGHTS, supra note 104, at 49.


freedom and well-being are human rights. Further, since all agents logicallymust accept that they have rights to freedom and well-being, the having ofthese rights is morally necessary.115

Human rights are, therefore, grounded in reason so that they have anormative necessity which transcends the variable contents of socialcustoms and positive laws. Since human rights can conflict with each other,however, they are only prima facie rights. In cases of conflict, rights morenecessary to action have priority over those that are less necessary: the rightnot to starve, for example, would “trump” the right not to be subject todiscrimination. Violations of human rights are justified only when they arenecessary to prevent more serious violations, rectify past violations orcomply with social rules that sustain human rights. The rights to freedomand well-being entail such rights as those to political participation, to befree 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 humanrights are logical entailments of morality as such and not contingent socialconstructions.117 His analysis is based on the claim that, notwithstanding thediversity of moral philosophies and religions in the world, there is a “coremeaning” 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 andwell-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 theUniversal Declaration. These rights therefore trump all beliefs, customs, andlaws that are inconsistent with them.118 All cultures that seem to lack theconcept of human rights must either have it implicitly or they are in a stateof logical and moral error. Like Donnelly, Gewirth believes that everyoneought to be a liberal, social democrat, but Gewirth goes beyond Donnelly inclaiming that this is logically necessary. Gewirth does not address theproblem that those who hold illiberal moral beliefs, especially those whobelieve that they are absolutely required to hold them by the ultimate sourceof moral obligation (God), cannot, on pain of self-contradiction, be logicallyrequired to hold moral beliefs that are inconsistent with their consideredconvictions.119 If Gewirth insists that they can, he would violate his ownprinciple of respect for the religious freedom of others. Gewirth can avoid

115. Id. at 49–54, 68–69, 74–75.116. Id. at 55–58.117. Id. at 46.118. Id. at 24–26.119. Gewirth’s exclusion of considered convictions from moral philosophy distinguishes his

theory from that of Rawls. See JOHN RAWLS, A THEORY OF JUSTICE 20 (1972).


this self-contradiction only by employing his method of according priorityto the most important human rights.120

However, this move has two defects: 1) it probably does not offer aclear solution to the problem; and 2) worse, it is question-begging, since itassumes the correctness of Gewirth’s theory. Gewirth’s logic of action isresolutely secular, and is inapplicable to the eternal life, in which it is notcertain that there is “action.” Despite its dialectical ingenuity, therefore,Gewirth’s theory is an implausible solution to the problem of culturaldiversity.

VIII. EQUALITY AND TOLERATION IN INTERNATIONAL SOCIETY

Whereas Gewirth and Donnelly require religion to bring itself into line withhuman rights, An-Na’im and Othman meet the requirement of Maritain thathuman rights must be grounded in the various religions and philosophies ofthe world rather than vice versa. Their Islamic conceptions of human rightsmay, however, produce controversial versions of both Islam and humanrights. To the extent that they do, their attempt at reconciliation fails, butthere can be no guarantee that all conceptions of human rights will becompatible with all religious beliefs.

The discourse of contemporary Western political philosophy is nowpredominantly secular. The problem for human rights theory then is how toconstruct a universal theory that recognizes the importance of diversereligions in the world, but is not itself religious. John Rawls has attempted tosolve this problem from a Western, liberal perspective. His theory of justiceas fairness considers a political system to be fair if everyone would considerit to be so when thinking about it impartially, that is, without giving priorityto their own interests.121 Gewirth criticizes Rawls for inferring egalitarianconclusions from egalitarian premises, but Rawls’ attempt to derive justicefrom impartiality is similar to Gewirth’s derivation of human rights fromprudential rights: both begin with self-interested individuals and go on toderive conclusions about the rights and obligations of a society of suchindividuals.122 Rawlsian contractors agree on the principles of justicebecause they are supposed to decide on them while behind a “veil ofignorance,” where they know that they have interests, but do not know whatthose interests are. Gewirthian logicians recognize that their own claims toact for their own good entail the recognition of the same rights of others.

120. GEWIRTH, HUMAN RIGHTS, supra note 104, at 57–59.121. RAWLS, A THEORY OF JUSTICE, supra note 119, at 136–37.122. GEWIRTH, supra note 104, at 47; Id. at 142.


The theories of both Rawls and Gewirth are “secular” in the sense that theyare not derived from a religious doctrine and require the state to be neutralamong religious beliefs. Rawls emphasizes, however, that his theory is notsecular in the sense that it favors secular over religious beliefs.123

Rawls’ theory has changed over time. In A Theory of Justice he wasconcerned to show that citizens could develop a sense of justice that wouldlead them to support the principles of justice.124 Later, he emphasizes thefact that modern democratic societies contain a pluralism of incompatiblebut reasonable comprehensive doctrines, such as religious faiths.125 Thispluralism is the normal outcome of human reason under free institutions.Rawls differs strikingly from Gewirth on this point. Gewirth is a logical andmoral monist: he argues that all rational agents are logically committed to auniversal conception of human rights similar to that of the United Na-tions.126 Rawls holds that free reason leads different agents to differentreligious, philosophical, and moral beliefs.127 Gewirth holds that all thesebeliefs logically entail the same set of human rights. Rawls draws a morelimited inference from the fact of philosophical pluralism.128

Rawls addresses the problem of pluralism by distinguishing betweenreasonable and unreasonable comprehensive doctrines. Comprehensivedoctrines are reasonable if they respect the principles of liberal democracyand do not attempt to use state power to correct or punish those who live byother reasonable doctrines.129 Liberal justice requires toleration of allreasonable comprehensive doctrines, including those that are not liberal.This requires a distinction between political liberalism and comprehensiveliberalism. Political liberalism requires respect for liberal principles in thepolitical institutions of society. Comprehensive liberalism is based on thevalue of individual autonomy in all areas of life. However, this is only onecomprehensive doctrine among the many that will be found in a freesociety. 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 ofpeoples.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).


just, liberal peoples. As political liberalism recognizes the pluralism ofcomprehensive doctrines within democratic societies, so the liberal law ofpeoples recognizes the pluralism of comprehensive doctrines in the societyof peoples. In the theory of justice individuals are equal in the originalposition, and they accord priority to equal liberty for individuals in thepolitical institutions of society. In the law of peoples, however, Rawls insiststhat there must be a second original position in which the parties are notequal individuals, but the representatives of equal peoples. The law ofpeoples, therefore, recognizes the equality of peoples, but acknowledgesthat there are “decent,” non-liberal peoples that will not recognize theliberal-democratic principle of equal citizenship.132

Liberals are required by Rawls to tolerate and respect non-liberalpeoples, provided that they are “decent.” Non-liberal societies are decent iftheir basic institutions meet certain conditions of political justice, includingrespect for human rights. However, they do not accept the liberal idea thatpersons have equal basic rights as citizens.133 They may, for example,privilege a certain religion, and accord certain advantages to those whosubscribe to that religion. Such societies allow different voices to be heard“appropriately in view of the religious and philosophical values of thesociety.” They must take the fundamental interests of all groups intoaccount, and Rawls suggests that the right to dissent in such societies wouldlead at least to improvements in the rights of the members of historicallyoppressed groups, such as women.134 Decent, non-liberal peoples are“acceptable” as members in good standing in a reasonable society ofpeoples. The liberal theory of the law of peoples does not prescribeprinciples of justice for decent peoples, but works out the principles ofliberal foreign policy that are reasonable from a decent, non-liberal point ofview.135 Rawls and Gewirth are at odds here, since Rawls’ conception ofdecent, non-liberal peoples is a component of his ideal, liberal theory of thelaw of peoples, and gives the supposed liberal principle of toleration ofpeoples’ priority over that of equality. Gewirth would require that theprinciple of equal rights determined the proper limits of toleration.

Rawls argues that liberals ought to recognize societies that respecthuman rights, but not equal rights, as members in good standing of thesociety of peoples, on the basis of the liberal values of toleration, respect forcultural difference and the right to self-determination.136 He concedes thatsuch societies are not fully just by liberal principles, but does not explain

132. Id.133. Id. at 71.134. Id. at 75.135. Id.136. Id. at 59–62.


why justice, which in A Theory of Justice he said was “the first virtue ofsocial institutions,” should yield to these other principles.137 The claim thathuman rights are liberal-democratic rights, he says, “expands” the class ofhuman rights. Rawls restricts the category of “human rights proper” to thosecontained in Articles 3–18 of the Universal Declaration. He excludesthereby the rights to freedom of expression, association, and participation ingovernment, as well as the prohibition on discrimination.138 He suggests thatsome other articles presuppose specific kinds of institutions.139 This is anunclear idea, because the human rights that he endorses, such as the right toa fair trial, require appropriate institutions, though not specific institutions,in the sense that they are compatible with considerable variation ininstitutional forms. Yet Rawls excludes such rights as those to work, medicalcare, education, and culture on the ground that they require specificinstitutions, but, in this, they are no different from some of the rights that heendorses: they require appropriate, but not uniform, institutions.140 Rawlsalso 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 alldecent peoples.141 Religion cannot justify the subjection of women becausebasic human rights are involved. Rawls’ opposition to the subjection ofwomen is, however, weakened by his refusal to endorse the human right notto be subject to discrimination on the ground of gender.

Rawls emphasizes that the actual conditions of the world do notdetermine the ideal conception of the society of peoples, so it is difficult tosee why he requires liberals to tolerate what he concedes to be less thanideal justice. His claim that reasonable pluralism is the outcome of theexercise of human reason under free institutions, and that his law of peoplessimply 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 peoplesto tolerate the political privileging of comprehensive doctrines, which isintolerable in liberal societies. Rawls had argued that individuals in the firstoriginal position would choose the principle of equal liberty of conscience,and that they would wish to avoid “at almost any cost” the social conditionsthat undermined the primary good of self-respect. In the second originalposition, however, these principles are not guaranteed.142 In accepting as“decent” societies in which the state enforces unequal human rights on thebasis of a comprehensive doctrine, Rawls is surely going beyond what is

137. RAWLS, A THEORY OF JUSTICE, supra note 119, at 3.138. RAWLS, THE LAW OF PEOPLES, supra note 131, at 79–80.139. Id.140. Id.141. Id. at 75.142. See KOK-CHOR TAN, TOLERATION, DIVERSITY, AND GLOBAL JUSTICE (2000).


recognizable as liberalism, and his account of human rights is certainly lessliberal, and more restrictive, than An-Na’im’s Islamic account.

IX. CONCLUSIONS

The concept of human rights is a moral, political, and legal idea thatoriginated in Christian, natural-law philosophy, became secularized andwas 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 widespreadsupport in the contemporary world, but there is no agreement on itsphilosophical basis. This paper has addressed problems that arise when theprinciples of human rights come into conflict with religious principles towhich some people are deeply committed. There is what Rawls calls an“overlapping consensus” between many religious beliefs and the principlesof human rights, but the consensus is not complete. Human rights theorytherefore has the task of reconciling religion and human rights so far as it ispossible.

Maritain argued that a concept of universal human rights would have tobe rooted in different religions and philosophies. This may be a pragmatic oran epistemological argument. It may simply recognize the fact of pluralismor 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 humanrights similar to those of the UN. This prima facie implausible argumentseems to be based on an illicit move from the claim that some minimallevels of freedom and well-being are necessary conditions of action, andtherefore of moral action, according to any moral beliefs whatever, to thewider and more controversial claim that a set of rights and institutions muchlike those of Western liberal social democracy are logically required to beuniversal. This has the paradoxical and implausible consequence that manypeople are logically required to abandon their beliefs. This argumentconcludes, implausibly, that a logically coherent set of non-liberal beliefs isimpossible, and it might have the empirical consequence of underminingthe capacity for moral action of those who hold such beliefs at least as muchas not having some of the rights that Gewirth holds to be universal.

Rawls says, plausibly, that diversity of comprehensive doctrines isunavoidable. He also says, plausibly, that diversity of belief is the expectedoutcome of human freedom. The apparent consensus on human rightssuppresses this diversity, or assumes too easily that it is compatible withhuman rights. Given the Western roots of human rights, there will probablybe at least differences in the interpretation of human rights in differentcultural contexts. Rawls is wrong, however, to say that civic inequality is


143. ONORA O’NEILL, A QUESTION OF TRUST 18–19 (2002).144. Peter Jones, Human Rights and Diverse Cultures: Continuity or Discontinuity?, in HUMAN

RIGHTS AND GLOBAL DIVERSITY 37 (Simon Caney & Peter Jones eds., 2001).

consistent with human rights. There is now a very strong internationalconsensus that racial discrimination is intolerable. Rawls believes that “thesubjection of women” is undesirable. He argues, however, that discrimina-tion on grounds of religion may be acceptable. Rawls’ liberalism is neutralwith respect to religious belief, and it is therefore difficult to understand whyhe requires liberals to tolerate religious discrimination. He calls fortoleration of non-liberal societies because toleration is a liberal principle,but, just for that reason, governmental discrimination on the ground ofreligion must be unacceptable.

The diversity of the world’s cultures makes mutual respect and harmonyamong human beings and peoples difficult. From the point of view of oneculture, another culture may seem unattractive and/or immoral and/orimpious. Toleration is not always a virtue. It would be difficult now toconstruct a recognizably moral argument that would require or permit thetoleration of genocide or racism. The Gewirthian and less controversialtheories of human rights provide a solution to the problem of the limits oftoleration: tolerate up to the point that you do not tolerate the violation ofhuman rights. The problem is that there is no culturally neutral interpreta-tion of human rights, if we cannot accept Gewirth’s controversial, and pre-post-modernist claim that reason is supra-cultural. The concept of humanrights has a strong intuitive appeal to many people in many differentcultures insofar as it is designed to protect the most fundamental humaninterests, honor human dignity and provide the basis of peace and mutualrespect among peoples. Yet scepticism about human rights is by no meansrestricted to non-Western cultural resistance to perceived neo-imperialistcultural practices. It exists at the heart of contemporary Western politicalphilosophy.143 It is not the task of human rights theory to determine ultimatereligious or philosophical truths, but to identify the rules that ought togovern the relations among persons with different beliefs.144 History showsboth that reasonable persons can disagree on such rules and that manypeople are not reasonable. We can fight or we can reason. Since fighting isboth intrinsically undesirable in normal conditions, and generally unsuitedto establishing correct principles, there seems little alternative in addressingthe problem of deep cultural differences about human rights, but to performthe patient examination of conflicting ideas with as much skill and as littleprejudice as we can manage.

Freeman-HHRR and Secularity

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