Academic journal article Brigham Young University Law Review

Human Rights, Religious Freedom, and Peace

Academic journal article Brigham Young University Law Review

Human Rights, Religious Freedom, and Peace

Article excerpt

I. Introduction

It was the solemn intention and expectation of the drafters of the Universal Declaration of Human Rights and of all the subsequent instruments that the promotion and protection of human rights, including the right to religious freedom, would advance the cause of peace.2 However, this thesis faces strong opposition as of late. There are a number of scholars who, in the spirit of Michel Foucault, regard human rights as a "a discourse of pseudo - emancipation that serves to conceal [various] entanglement[s] with 'power.'"3

Three books, two recently published, apply this criticism to the subject of religious freedom. The two most recent are Beyond Religious Freedom by Elizabeth Shakman Hurd,4 and Politics of Religious Freedom edited by Hurd, Saba Mahmoud, Peter Danchin, and Winnifred Sullivan.5 The third, The Impossibility of Religious Freedom, is an older book by Sullivan.6 These four authors are associated with an influential blog called the "Immanent Frame" that is dedicated to "problematizing"-in a favorite word-liberal rights discourse.7 Two other skeptics who approach the subject from a slightly different angle, but come to similar conclusions, are Marci Hamilton in God vs. the Gavel,8 and Brian Leiter in Why Tolerate Religion ?

Other studies, such as Formations of the Secular by Talal Asad10- mentor of the "Immanent Frame" group-or A Post-Liberal Peace by Oliver Richmond,11 represent related challenges to various efforts aimed at promoting peace around the world by institutionalizing human rights along with democracy and the rule of law. Some of these attacks against the connection between human rights and peace are part of a larger anti-human rights campaign that appears to be gathering momentum. One thinks of Samuel Moyn's The Last Utopia: Human Rights in History,12 along with his latest work, Christian Human Rights, published just last year,13 as well as Eric Posner's Twilight of Human Rights Law.14

After providing some general comments about human rights, religious freedom, and peace, i shall deal with four of these critics, Asad, Richmond, Sullivan, and Hurd. They raise objections about the legitimacy and supposed benefits of human rights standards that need to be considered.15 My defense, in a word, is that whatever problems there are lie not with the standards themselves, but with the way they are used.

II. Human Rights, Religious Freedom, and Peace

The opening lines of the Preamble to the Universal Declaration of Human Rights (UDHR) say this: "[Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world."16 The Preamble to the U.N. Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief says something similar:

[T]he disregard and infringement of human rights and fundamental freedoms, in particular of the right to freedom of thought, conscience, religion or whatever belief, have brought, directly or indirectly, wars and great suffering to [human]kind. . . . [The] freedom of religion and belief should . . . contribute to the attainment of the goals of world peace, social justice, and friendship among peoples . . . .17

The references to peace are not incidental. Human rights in general and the right to conscience, religion, or belief in particular were explicitly designed as a set of legally enforceable rights and protections capable of preventing the reappearance of autocratic government and the exercise of arbitrary force associated with Hitler and his fascist allies that were in large part responsible for the "wars and great suffering" of the mid-twentieth century.18

Speaking of autocratic government and the arbitrary exercise of force, we should recall that Hitler rose to power on the strength of Article 48-the emergency article-of the Weimar Constitution.19 It permitted the suspension of civil rights "with almost no limit,"20 including extensive censorship, widespread searches and seizures, secret and unlimited detentions, and the establishment of irregular tribunals to prosecute individuals suspected of threatening national security-in effect, authorizing Hitler to use police power to intimidate and suppress all opposition. …

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