Between Rogues and Liberals: Towards Value Pluralism as a Theory of Freedom of Religion in International Law
Danchin, Peter, Proceedings of the Annual Meeting-American Society of International Law
How are we to think about the seemingly endless series of antinomies and contradictions to which the relationship between religion and human rights gives rise, and to what extent accordingly do we have a coherent notion of religious freedom in international law? Drawing on recent women's rights scholarship in the areas of culture and religion, (1) I believe that a central problem in our understanding of the relationship between religion and human rights is how international human rights law itself constructs and imagines the category of "religion" and the right to "religious freedom" according to certain problematic--perhaps even fundamentalist--conceptions of public reason and individual freedom. The result has been two interrelated distorting effects in rights discourse.
The first concerns the identity of the subject of international law the abstract category of "the state," or perhaps the "nation-state." To the extent that religious and cultural forms are embedded in the (public) laws and practices of non-Western states, any attempt to justify these norms against the international legal norms of equality and nondiscrimination has been axiomatically viewed as constituting a disreputable form of cultural relativism justifying patriarchal and pre-modern hierarchies and power relations. The universal claims of equality and nondiscrimination, however--even in the most "liberal" of societies raise difficult and complex questions in their relationship to religion and culture. If a plurality of conflicting values is to be mutually respected (rather than uncritically dominated by a single value), conflicts between equality norms and collective identities must be interpreted and negotiated intersubjectively in continuity with each society's historic traditions and reference points. Indeed, there is growing evidence to suggest that "fundamentalist" resistance to the redefinition of cultural and religious forms can be correlated with the extent to which outside portrayals or attempts to influence a tradition are made in condemnatory or contemptuous terms, in a kind of vicious circle.
The second aspect concerns how to understand and define the freedom of legal subjects, in one case the "human rights" of individuals and certain specified groups, in another case the "sovereignty" of states. To the extent that religious traditions themselves (independent of any state laws and practices) are the source of unequal and discriminatory treatment, the public-private distinction has operated in liberal accounts of human rights and international law--under the banner of "freedom of religion"--completely to shield religions from the claims of the equality norm. Human rights law in this way has deferred to religious despotism in the private sphere through the definition of religion as a "sovereign, extralegal jurisdiction in which inequality is not only accepted, but expected." As Sunder puts it "law views religion as natural, irrational, incontestable, and imposed--in contrast to the public sphere, the only viable space for freedom and reason. Simply put, religion is the 'other' of international law." (2)
In all societies, however, religious communities are internally contested, heterogeneous, and constantly evolving through internal debate and interaction with outsiders. In questioning the traditional liberal construction of this category, human rights groups (especially in non-Western contexts) are seeking today to find ways to realize the values of reason, equality, and liberty, not just in the public sphere, but also in the private spheres of religion, culture, and family. They are thus challenging directly religious and cultural authorities and seeking to re-imagine religious community on more egalitarian and democratic terms. As Sunder has argued, these efforts are in many respects different to the women's rights movement in the West, which offers women a right to religious freedom (on patriarchal, religious leaders' terms) or a right to equality (within the public sphere and without normative community), but not a comprehensive right to both. …