Law, Religion, and Human Rights
John Witte Jr.
Emory University School of Law
Columbia Human Rights Law Review, Vol. 28, p. 1, Fall 1996
This Article argues that law and religion need each other. Law religion gives law its spirit and inspires its adherence to ritual, tradition, and justice. Law gives religion its structure and encourages its devotion to order, organization, and orthodoxy. Law and religion share such ideas as fault, obligation, and covenant and such methods as ethics, rhetoric, and textual interpretation. Law and religion also balance each other by counterposing justice and mercy, rule and equity, discipline and love. It is this dialectical interaction that gives these two disciplines and two dimensions of life their vitality and their strength. Without law, religion slowly slides into shallow spiritualism. Without religion, law gradually crumbles into empty formalism.
This Article further argues that religion and human rights need each other. Human rights norms need the norms, narratives, and practices of the world’s religions. Religions invariably provide many of the sources and scales of values by which many persons and communities govern themselves. Religions inevitably help to define the meanings and measures of shame and regret, restraint and respect, responsibility and restitution that a human rights regime presupposes. Religions must thus be seen as indispensable allies in the modern struggle for human rights. To exclude them from the struggle is impossible, indeed catastrophic. To include them, by enlisting their unique resources and protecting their unique rights, is vital to enhancing the regime of human rights.
Conversely, religions need human rights norms both to protect them and to challenge them. There is, of course, some merit in religious believers and groups quietly accepting the current protections of a modern human rights regime — the guarantees of liberty of conscience, freedom of exercise, rights to religious self-determination, and the like. But passive acquiescence in a secular scheme of human rights ultimately will not prove effective. And failure to press the unique rights claims of religious believers and communities will eventually leave many religious beliefs, practices, and communities too vulnerable. Religious communities must reclaim their own voices within the secular human rights dialogue, and reclaim the human rights voices within their own internal religious dialogues. Contrary to conventional wisdom, the theory and law of human rights are neither new nor secular in origin. Human rights are, in no small part, the modern political fruits of ancient religious beliefs and practices, which modern religious communities must reclaim.
Number of Pages in PDF File: 17
Keywords: law; religion; human rights; international law; religious freedom; Christianity; Judaism; Islam; constitutional law; equality; libertyAccepted Paper Series
Date posted: June 3, 2011 ; Last revised: October 2, 2014
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