Group Thinking: Antique Models of Community for Modern Religious Rights Regimes

Abstract

Are human rights compatible with religiously based, group-oriented ordering systems? The question is usually asked the other way around: human rights have become a default rhetorical and ideological framework, and identity-based ordering systems, including religions, are seen as retrograde and illiberal. Yet the assumptions underlying rights may not be so widely shared, and are often surprisingly insular. Moreover, individualistic theories of rights have been singularly unsuccessful in accommodating group claims.

This paper considers one example of a secular, group-oriented model for ordering law - the Roman concept of ius gentium - as a means to explore theoretical challenges to human rights that group orientations pose, especially to notions of universalism, legitimacy, and the state, and to consider alternative ways of thinking about rights and groups.

Could ius gentium justify rights for religious or other minorities in a modern state system? Ius gentium might provide a useful foundation for reconfiguring minority rights since it admits multiple sources of authority and over-lapping modes of legal interaction without threatening territorial integrity: in the Roman conception, jurisdiction is personal and status-based, not territorial, and therefore could afford autonomy to communities who do not inhabit compact, homogenous territories. Ius gentium also inclusively accommodates both religiously and secularly oriented systems. Ius gentium does not impose any universal normative structure; it is less about "a right to rights" than about "a right to a system."

This paper outlines the problems confronting group rights in the modern state system; defines the concept of ius gentium and considers its potential value; and considers questions about contemporary application to religious and other minorities. As part of a larger research project, this paper will also contribute to a legislative model for systematizing group rights that seeks to get around the dead-end debate between relativists and universalists, channeling those antinomies into the simultaneously philosophical and pragmatic enterprise of legitimating the authority to make decisions about rights, rather than simply debating outcomes.

Keywords: minority rights, human rights, universalism, Roman law, international law, ius gentium (jus gentium), minorities, religious rights, religion, group rights, groups,

JEL Classification: Z00, Z10, N40, N43, K33, K10, K19, K11, K12, J70