Freedom of Religion in Context
Haarscher, Guy, Brigham Young University Law Review
The title of this article is a paradox in itself. Freedom of religion is a part of human rights law. The basic assumption of human rights law is that human rights are universal and that respect for human rights should not depend on any particular economic, political, or cultural context. Indeed, if basic liberties were dependent upon their appropriateness to the norms of a particular country, group, or community, they would unavoidably lose their critical content. If every group producing specific, context-related norms were entitled to tailor human rights to its own needs and values, Muslim women would not be able to fight the discriminations they endure in their countries, and it would be impossible to condemn genital mutilations, which are justified in the name of cultural specificities. However, many countries do impose an official religion, and the economic or political context of the country is often an excuse to deny human rights in general. Thus putting freedom of religion "in context" might be considered dangerous, but such a view would be a misunderstanding.
II. Two KINDS OF CONTEXTUALIZATION
To understand human rights and cultural contexts, one should distinguish between two very different methods of relating human rights to cultural contexts (not to mention the political and economical ones).
The first method-the "bad" type-is the one summarized above: adapting basic liberties to a certain context would mean that when a conflict of norms arises, the particular cultural value will prevail. In these circumstances, the relevant communities will only accept the segment of human rights law that fits into their own normafive system. That is, they would retain their prejudices, not allowing the universal norm of human rights to prevail over their own specific values. This selective "reception" of human rights by a culture would simply mean subordinating human rights to the values of the group. The latter norms would be immune to any moral criticism expressed from "outside" the culture. This kind of universal claim (for instance, the universal requirement that religion is a matter of conscience, not of force) would unavoidably be labelled ethnocentric. Instead of seeing basic human rights norms as impartial and transcultural standards, the (often self-appointed) leaders of the group would simply dismiss these external norms as the requirements of another particular culture, that is, Western culture.
Such a claim should be patiently rebutted. If this is not carefully done, human rights will lose their critical edge and become an innocuous part of cultures that will remain "sovereign" as far as the values they want to impose (that is, very often, the way they treat their own members) are concerned.
But there is a second method-the "good" type-of considering human rights in a particular context. This view takes into account the fact that several conceptions of basic liberties exist in democratic countries. Consequently, it would be an oversimplification to consider one of these interpretations as authentic and the others not. In fact, the meaning of human rights is the subject of an ongoing debate. Such a controversy is normal in open societies particularly due to the fact that the universal norm of human rights is much more complex than it first appears. For instance, the status of religion itself is different in the United States than in many European countries. Of course, this is an oversimplification of the problem. There are divergent currents of thought everywhere, and the debate takes place as much within the broad cultural contexts (United States, Western Europe, Eastern Europe-where the Orthodox Church is dominant, etc.) as between systems.
I would like to briefly emphasize some of the very problematic elements of this debate. In doing so, I hope to clarify some of the complex contemporary stakes of freedom of religion. Although such an analysis will not produce general agreement, a "systematic study of confused notions"' may help to create a clearer view of the dis