Religion and the Future of Human Rights
by Robert F. Drinan
Father Drinan is a former congressman from Massachusetts and former dean of Boston College Law School. When this article appeared he was professor of law at Georgetown University, Washington, D.C. The article is adapted form a chapter in his book, The Cry of the Oppressed: The History and Hope of the Human Rights Revolution, Harper and Row, l987. This article appeared in the Christian Century, August 12-l9, l987, pp. 683-687. Copyrighted by the Christian Century Foundation and used by permission. Current articles and subscriptions can be found at www.christiancentury.org. This text was prepared for Relgion Online by John C. Purdy.
As one surveys the surge -- indeed, the explosion -- of human rights laws and activities over the past 40 years, one has to ask whether the overall level of public morality has been improved. The question is cosmic and probably unanswerable. But one of the many factors to be considered is the potential long-range consequences of the aspirations that have become a part of international law since the establishment of the United Nations. Torture, totalitarianism, political detention, the oppression of women, and massive malnutrition may still be tragically present in the universe. But have moral forces been launched that will eventually abate or abolish the inhumanity of these abuses of human rights? The broader question, of course, is whether any moral force has ever had any permanent effect on people's morality since Cain killed Abel. But again we cannot say for certain, since we can only surmise how much worse things would be if the forces of morality had not been vigorously advanced through the centuries by human rights activists, jurists, legislators and individuals with humanitarian instincts.
One of the central global forces in seeking to create what is perceived to be a higher personal and public morality is, of course, religion. The United Nations Charter (1945) grouped religion with race, sex and language, and required all signatory nations to pledge to promote human rights without distinction as to these four. The Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Optional Protocol (1966), together called the International Bill of Rights, followed the same approach, adding the fight to freedom of thought and conscience to the conditions which may not be made the basis for any invidious discrimination.
But understandably, the elimination of intolerance and of discrimination based on religion or belief was perhaps the most difficult and intractable of all the UN's aspirations. It was not until November 25, 1981, that the UN General Assembly was able to reach a consensus on the "Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief." And then the final document was not a covenant or a treaty to be ratified by all UN member nations; it is only an article for informal agreement and common aspiration.
The Declaration on Religion seems to be more a Western document than do other UN covenants and treaties. At its core is its exaltation of tolerance and freedom of religion. The declaration notes that the denial of the right to freedom of thought, conscience and religion has "brought, directly or indirectly, wars and great suffering to mankind." The General Assembly obviously does not feel called upon to inveigh against the reasons why religions have done things which, in the words of the declaration, "amount to kindling hatred between peoples and nations." The document does not even bring up those reasons but urges only that there be "understanding, tolerance and respect in matters relating to freedom of religion and belief." The norm for the conduct of religious groups is that they not use religion "for ends inconsistent with the Charter of the United Nations" and its purposes and principles.
Is this a norm that has enough clarity and consistency to make a difference? Would Muslim nations or Protestant and Catholic forces in Belfast or militantly anticommunist nations like the United States be likely to come to the conclusion that they cannot impose their views about religion on others if in so doing they violate some of the UN's principles? One hopes that the answer would be affirmative, but it is still too soon to try to assess whatever impact the 1981 UN statement on religious freedom may be having. . . .
It cannot be denied that the UN Declaration on Religion tends in the direction of the privatizing of religion. It states that in the event of a clash between what a religious group holds to be true, and the beliefs or nonbeliefs of another group, the principle of "tolerance" should be supreme. That principle has scarcely been a priority followed by all religions, and some would not agree to it now. One has to wonder, therefore, whether there will be an adverse reaction to the UN declaration. Will some militant religious sect reject its attitudes and its approach? Militant Muslims could maintain that the declaration tolerates and even exalts indifference, and that as a result it undermines the very foundation of national and international law and morality. Staunch anticommunists may feel that the declaration condones rather than condemns the Soviet war on religion. And secularists may feel that it is replete with "loopholes" by which religious zealots can justify the repression of disbelievers or dissidents. But in the end one has to say that if the General Assembly were to agree to anything concerning what international law should affirm with respect to human rights and religion, its 1981 declaration reflects what is perhaps the only approach available to 160 nations representing at least a dozen major world religions.
The UN document does, however, raise essential though probably unresolvable questions. Does it seek to create a certain supermorality based on human rights outside of formal religious structures? Does it tend to "paper over" the profound cultural and political differences in the approach of various nations to the role of religion in the formation of morality? Does it minimize the importance of these differences in clearly suggesting that they have to be subordinated to or sublimated by the ideal of promoting tolerance and understanding?
Although these issues are difficult, the UN Declaration on Religion does contain principles which merit applause and admiration. It states, for example, that every child is guaranteed the "right to have access to education in the matter of religion or belief in accordance with the wishes of his parents." Moreover, the child shall "not be compelled to receive teaching on religion or belief against the wishes of his parents." Other specific rights are protected; e.g., all people may observe days of rest and celebrate holidays in accordance with their religious traditions.
The United States clearly had an immense influence on the formation of the United Nations Charter and the International Bill of Rights. The U.S. Declaration of Independence and the Bill of Rights are reflected in the Charter and the human rights covenants, which for the first time in history gave international effectiveness and enforcement to the aspirations of Western democratic states. The UN Declaration on Religion also reflects what the United States developed as a way to harmonize the interests of government and the objectives of religion. The Constitution's First Amendment forbids an establishment of religion but maximizes the free exercise of both religion and irreligion. To some extent that is also the underlying formula of the UN declaration. The document does not prohibit state-sponsored religion, but it strongly advocates tolerance and expressly forbids any discrimination on the basis of religion or belief.
Can such a formula, applied throughout the world, allow diverse religions to flourish and in so doing create the necessary moral support to ensure the enforcement of a wide range of human rights? Or does the denial of an official status to any organized religion tend to inhibit that religion, so that it will not radiate those moral and spiritual values which are, by everyone's admission, indispensable for the successful enforcement of internationally recognized human rights?
These are the questions which will be asked more and more -- especially by the Muslim nations where religion, government, law and morality are interwoven and inseparable in ways almost unknown to Western nations. In the literature about human rights, however, there is -- at least up to now -- -no pronounced rejection of the entire set of presuppositions on which the UN human rights covenants are grounded. Nations which have inherited Anglo-American or common law from the Commonwealth -- such as India -- feel comfortable with the international covenants, even though they were fashioned in large part by the former colonial powers. African nations are less comfortable with the UN covenants, but those covenant are not substantially dissimilar from the civil law or the Napoleonic Code which Belgium, France and Portugal brought to some African countries.
The nations of Asia theoretically feel less kinship with the premises and principles of the new international human rights law, but again there have been no strong protests from scholars or jurists in Asian lands. The millions living in former European colony nations should recognize that their liberation from the domination of a foreign power came about because of the widespread acceptance of the human rights and fundamental freedoms set forth in the documents of the United Nations.
The deepest and firmest conviction of those who drafted the International Bill of Rights was that there is a common and universal set of moral principles known or knowable to all human beings. For centuries the Catholic tradition has called that concept the natural moral law and has defined it as a participation by humanity in the eternal law rooted in God himself. Jurists and others perceive that tradition as deriving from the universal respect that people have or should have for the voice of conscience which can or should be heard by all human beings. Others would describe in somewhat different terms the moral assumptions underlying the UN human rights covenants. But it seems fair to state that in the vast array of diverse nations, there is some kind of consensus that accepts or at least does not reject the premises and the principles on which those covenants rest,
But, one has to ask, does this consensus stem from the religious tradition of these nations, or has it arisen despite or contrary to that tradition? And, equally important, can the contents of the International Bill of Rights endure and grow if the religious tradition of a nation or region is in fundamental opposition to it on, for example, the role of women in society or the way in which political dissidents are to be treated?
During the 40 years in which the International Bill of Rights developed, few took the time to think about these profound and troubling questions. In addition, they were not pressing, since the covenants did not become a part of world law until 1976. The hope was and is that all the world's religious and moral traditions would continue to articulate their viewpoints and that somehow from all the different sounds a world symphony would be created. No one can say with finality whether that symphony is in the process of being created. But the dream and the vision of the international covenants' framers continue to echo and inspire. The primary promises and pledges now contained in world law give hope to the humiliated, the marginalized, the dispossessed and the alienated. If such people become angry, they think of fighting for their rights. If they witness the degradation of other human beings by despots, they feel not only apprehension and anxiety but a determination to rise up against tyranny.
Nonetheless the question recurs: Can a worldwide morality and jurisprudence about human rights come to have a paramount influence when those rights are based not on theology or any organized religion but only on the rational commitment that all people are equal and should have equality and justice? In the history of the world it has almost always been assumed that the ultimate and permanent basis of a nation's morality must rest on religion and be agreed to by the vast majority of its citizens. Except possibly for the United States -- although one could argue that the U.S. from 1790 to about 1950 was a de facto pan-Protestant nation -- nations have grounded their public morality in the people's religious, ethnic and cultural roots.
Perhaps even that deep-rooted tradition has to be deemed an anachronism in a world where sovereign nations themselves may in many ways be anachronisms. In any event, the International Bill of Rights has bypassed the idea that all human rights derive from the morality or mystique of individual nation-states. Instead, it has proclaimed a wide variety of economic and political rights which are to be preferred in the event that any nation seeks to annul them as inconsistent with that nation's sense of moral or legal priorities. It is a revolution that seeks to change something fundamental in the way nations have operated. It is a magnificent and beautiful experiment, which came to birth in 1976. Its feasibility and its chances of success are not very clear at this time. But in times past, the establishment of a set of rules or laws like the Code of Hammurabi, the Justinian Code, the Magna Carta or the U.S. Bill of Rights has eventually had an enormous impact. Consequently there are many reasons to think that the promulgation of the International Bill of Human Rights, while seemingly an act that could be perceived as naive and unrealistic, may be one of the most important events in world history.
But there is some reason to think that there may be a surprisingly clear and coherent consensus in the family of nations about the nature and enforceability of human rights? A review of some systems of law tends to confirm the idea that the framers of the International Bill of Rights were not just dreamers or superidealists; they were building on persistent and profound strands in the history of jurisprudence in the West and other cultures.
In 1968 UNESCO, to celebrate the International Year for Human Rights, published a collection of texts gleaned from different cultural traditions which illustrate the universality in time and space of the rights of humanity. The collection's title, The Birthright of Man, reflects the idea that the struggle for human rights is as old as history itself. The desire to protect the individual from the abuse of power by a monarch, a tyrant or the state has its roots in the traditions and faiths of India, China, Japan, Persia (modern Iran), Russia and other nations.
The perennial conflict between the positive law of the sovereign and the unwritten law of the gods or of nature is seen in its classic form in Sophocles's Antigone, in which the respect for the dead and the love of a brother transcend whatever the king might order.
In the Code of Hammurabi, 2,000 years before Christ, a monarch records that his mission is "to make justice reign in the kingdom, to destroy the wicked and the violent, to prevent the strong from opposing the weak . . . to enlighten the country and promote the good of the people." And in the medieval period, Thomas Aquinas's understanding of the natural moral law formed the matrix for ideas about inalienable, indefeasible and imprescriptible human rights.
But while all the rhetoric and the reality of human rights law prior to the past 40 years may be impressive, one has to concede that the UN's human rights covenants have taken a great leap forward. They contain a dream and a vision never really elaborated or espoused previously. The core of the human rights treaties can be discovered, at least in essence, in the history of law at the national level. But the notion of spelling out a code of rights to be enforced across the world is still a startling idea.
The dream of human rights appears to many to be utopian and almost unattainable because of the wretched conditions that exist in the world. For many reasons, human rights are often not being enforced. One of the major reasons is the buildup in arms during the 40 years since the human rights revolution began. The rise in the number of Third World military governments has had an adverse impact on human rights, since military-controlled governments are more than twice as likely as other Third World governments to make frequent use of torture and other violent forms of repression. In 1986 more than half of the world's military governments regularly used torture, brutality, disappearances and political killings to intimidate their populations.
In 1986, the International Year of Peace, global military expenditures reached $900 million. The huge pyramid of public debt built up by military extravagance was to a great extent responsible for the fact that in 1986 at least 1 billion people were inadequately housed, every third adult could not read or write, and one person in five lived in grinding poverty.
The hemorrhage of resources consumed for arms means that a Hiroshima-like catastrophe occurs every three days: for example, 120,000 children die unnecessarily. This grim statistic reminds one of the adage that statistics are just people with their tears wiped away.
The number of casualties from war during the 40 years of the human rights revolution is appalling. According to Ruth Leger Sivard's World Military and Social Expenditures, 1986 (World Priorities, 1986), 19.6 million persons were killed in World War I and 38.8 million in World War 11. But since 1945 about 25 million more have lost their lives in military conflicts, bringing the total killed in wars in this century to 83.6 million.
The United States in its role as the moral architect of the UN Charter and the human rights covenants certainly gave a creative impetus to law and idealism worldwide. But in the decades during which the U.S. has largely resisted ratification of UN treaties, it has established 300 major overseas military installations that cover 2 million acres and utilize 474,170 U.S. personnel (not including 250,000 U.S. service people aboard ship).
The person who suffers is carrying out St. Paul's mysterious mandate that all of us must somehow help make up what is wanting in the sufferings of Christ. For the Christian who believes in the solidarity -- indeed, the identification -- of every person with the humanity of the Son of God, the sufferings of that person will be a part of the redemption of the world. A brother or sister of Christ whose human rights are violated is a co-redeemer of the human race, an agent for the sanctification of Christ's church and, as a child of God, one chosen in the unfathomable ways of divine providence to bear witness in ways that may never be comprehended by the person who suffers.
While this theology of suffering may at first seem to promote a certain indifference to the violation of human rights, it should not, if correctly understood, lead to a passive acceptance of the brutalities that people and governments inflict on innocent human beings. Properly interpreted, the Christian mysticism about suffering should galvanize the faithful to action because it is not merely human beings who suffer; it is Christ himself. It is literally true that if human sin and suffering had been less, Christ's agony in the garden would have been less. At that moment Christ perceived all the abuses of human beings that would occur through the centuries, and he suffered personally for them. Consequently, if people can now diminish the level and number of affronts and abuses to the brothers and sisters of Christ, his suffering will be diminished.
Human rights activists operating in a secularized atmosphere do not make appeals to a theology or even a philosophy of human rights. They operate on those principles of humanitarianism and idealism that reflect universally accepted values in modern society. The law contained in the UN covenants is based on assumptions which are agreed to by the vast majority of humanity. It is further agreed that if these laws were strictly enforced, the abuse of human rights would be sharply curtailed. Some observers may wonder if these assumptions are adequate to the tasks involved. The worldwide consensus that the observance of human rights should be improved is so pervasive that the doubters and dissenters are not very visible. But it is self-evident that the human rights movement would be stronger still if it were buttressed by theological and philosophical underpinnings.
Those who believe in the Judeo-Christian tradition and perhaps the believers in any of the world's religions-may argue that law will not be effective without love. They are right. Love, or the capacity to subordinate one's own selfish interest to the good of others, is essential if civilization is not to revert to some form of human cannibalism. But law which can be defined as the enforcement of human rights is also the operating arm of love. Law is a feeble instrument even if it is strong and is supported by sanctions that will work. For without love, law has to rely on sheer deterrence or fear or threat -- and in those circumstances law will be evaded or avoided or ridiculed.
The quality of a society can be judged, Lord Moulton wrote, by its obedience to the unenforceable. Through the centuries human rights have not even been projected as enforceable by the world community. But now for the first time since humanity invented law, there is a plea for the internationalization of those fundamental rules or aspirations common to all people.
Even if all the human rights initiatives undertaken by the family of nations over the past two generations became miraculously effective, humanity still would not experience a return to some lost paradise forfeited by ancestral sin. But the implementation of human rights would be a way of curbing and civilizing all the brutish activities which derive from that primordial breakaway.
Americans have a unique role to play in the human rights revolution. It was the U.S., more than any other nation, that led the way to the formation of the United Nations and the development of that organization's 20 or more treaties. It is the United States that transmitted the moral and philosophical bases of its own governmental institutions to the family of humankind. So it is the U.S. which has a daunting moral, legal and political duty to verify and enhance the transcendent nature of human rights. George Santayana said it well: "Being an American is in and of itself almost a moral condition."
Another American -- lawyer, poet and Librarian of Congress Archibald MacLeish -- epitomized the U.S. mandate in these words: "There are those who will say that the liberation of humanity, the freedom of man and mind are nothing but a dream. They are right. It is a dream. It is the American dream."
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