Human Rights Theory, 4: Democracy Limited: The Human Right to Religious and Moral Freedom

24 Pages Posted: 29 May 2015

Date Written: May 27, 2015

Abstract

This is the fourth in a series of papers I began posting in late April 2015. Each paper addresses an issue, or a set of related issues, in Human Rights Theory. The overarching subject of the first two papers: the morality of human rights. For the first two papers, see “Human Rights Theory, 1: What Are ‘Human Rights’? Against the ‘Orthodox’ View” (2015), http://ssrn.com/abstract=2597403; “Human Rights Theory, 2: What Reason Do We Have, if Any, to Take Human Rights Seriously? Beyond ‘Human Dignity’” (2015), http://ssrn.com/abstract=2597404. In the third and fourth papers, I pursue the implications of the morality of human rights for democracy.

As I explain in the third paper, a commitment to the morality of human rights not only supports but requires a commitment to democracy — “democracy” in the broad modern understanding of the term. See “Human Rights Theory, 3: The Three Pillars of Democracy: The Human Rights to Democratic Governance, Intellectual Freedom, and Moral Equality” (2015), http://ssrn.com/abstract=2610941.

However, a commitment to the morality of human rights also requires, as I explain in this paper, a commitment to certain limitations on democracy — certain limitations on what democratic government may do to, and certain limitations on what democratic government may refrain from doing for, the human beings over whom it exercises power. What limitations? The least contentious answer: Any limitation that is (a) a compelling specification of the “act towards all human beings in a spirit of brotherhood” imperative and (b) evidenced as such by the fact that the limitation is recognized by the vast majority of the countries of the world as a human right. (The “in a spirit of brotherhood” imperative, as I explain in “Human Rights Theory, 2,” is the normative ground of human rights: Each of the human rights articulated in the Universal Declaration of Human Rights (UDHR) and/or in one or more of the several international human rights treaties that have followed in the UDHR’s wake is a specification of what the imperative, in conjunction with all other relevant considerations, is thought to forbid or to require.)

There are many limitations on democracy that fit the profile articulated in the preceding paragraph. I discuss one such limitation — a profoundly important one — in this paper: the human right to religious and moral freedom.

Like the right to religious and moral freedom, each of the three rights discussed in the companion to this paper, “Human Rights Theory, 3” — namely, the rights to democratic governance, intellectual freedom, and moral equality — is a limitation on government that fits this profile: a compelling specification of the “in a spirit of brotherhood” imperative and evidenced as such by the fact that the limitation is recognized by the vast majority of the countries of the world as a human right. But unlike the right to religious and moral freedom, the three rights discussed in the companion paper — the three “pillars of democracy” — are better understood not as limitations on democracy but as constitutive of democracy; they are better understood, that is, as rights the respect and protection of which by a government is constitutive of that government’s being truly democratic.

Suggested Citation

Perry, Michael John, Human Rights Theory, 4: Democracy Limited: The Human Right to Religious and Moral Freedom (May 27, 2015). Emory Legal Studies Research Paper No. 15-355. Available at SSRN: https://ssrn.com/abstract=2610942

Michael John Perry (Contact Author)

Emory University School of Law ( email )

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