Dignitatis Humanae: "Of Human Dignity." The Second Vatican Council's 1965 declaration on religious liberty must have seemed a triumph--an exclamation mark signaling the success of a decades-long project, begun during the Second World War, to restore human rights to the center of Catholic social teaching. (1) In wartime addresses, Pope Pius XII had called for recognition of human rights, based in human dignity, as the foundation for a stable peace. (2) In (1963), Pope John XXIII had made universal human rights, including religious liberty, part of the Magisterium. (3) The project had had effects outside the Church as well. In 1948, largely as a result of Catholic influence, the United Nations had adopted a Universal Declaration of Human Rights with human dignity at its core. (4) That declaration contained a ringing endorsement of religious liberty: "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance." (5)
How different things looks now. True, numerous treaties protect human rights; international organizations monitor their enforcement. (6) Conventional wisdom holds that human rights, including religious liberty, are universal. (7) Yet, as Allen Hertzke writes, "[d]espite considerable progress since the passage of the Universal Declaration, only a minority of people on earth enjoys the kind of religious freedom called for in international covenants." (8) According to a recent Pew Survey, "some 7o percent of the world's 6.8 billion people live in countries with high restrictions on religion." (9) One cannot know, of course, what the situation would be like without them. But there is little evidence that either the Universal Declaration or Dignitatis Humanae have done much to secure, as a practical matter, the universal vision of religious freedom they contemplate. (10)
Notwithstanding a surface consensus, fifty years after Dignitatis Humanae, nothing like universal agreement exists on what human dignity means and what it entails for religious liberty. (11) A variety of competing understandings exist. There are objective understandings that ground dignity in external factors beyond individual choice. The Catholic Church advocates one such understanding; the Russian Orthodox Church and the Organization of Islamic Cooperation advocate others. (12) Objective understandings conflict with a subjective conception of human dignity, based on the will of the individual, which most secular human rights advocates prefer. The rival conceptions of dignity clash, particularly in the context of "new rights" like same-sex marriage. (13) In that context, groups and countries that advocate objective conceptions of dignity join forces to resist supporters of the subjective understanding.
A conflict also exists between individualist and corporate understandings. (14) The former conceive dignity mostly in terms of individual persons. Notwithstanding disagreement on the objective/subjective question, both the Catholic and the secular understandings of human dignity are principally individualist. Corporate understandings, by contrast, emphasize group dignity and rights. On corporate understandings, religious communities--in particular, traditional religious communities--can assert claims to religious liberty against outsiders who threaten communal integrity. Although important differences exist between them, the Russian Orthodox Church and the Organization of Islamic Cooperation both endorse understandings of religious liberty with strong corporate elements. The conflict between individualist and corporate understandings plays out particularly in controversies over proselytism and the right to convert. On these issues, the Catholic Church and secular human rights advocates find themselves on the same side, arguing together against voices from other traditions.
In short, the postwar project to forge a universal notion of human dignity has failed. Instead, radically different understandings contend against one another and prevent agreement on crucial issues. How are we lawyers to respond? One response is to work harder to achieve consensus. At a conference on religious freedom the St. John's Center for Law and Religion cosponsored in Rome in 2014, Pope Francis asked us all to recommit to the universal conception of religious liberty contained in Dignitatis Humanae. Recognizing "universally shared values," Francis maintained, could promote "mutual respect" among religions and "global cooperation in view of the common good." (15) Serious scholars, particularly from the United States, have advocated more robust promotion of a universal notion of human dignity, and religious liberty, across the globe. (16)
With respect, these efforts seem to me misguided. True, one can point to examples that suggest a convergence of ideas about human dignity. (17) But, on the whole, the differences are too profound to be resolved easily. The chances that any one camp will persuade the others to adopt its views on dignity and religious freedom seem to me slim. Rather than trying to forge agreement on universal concepts, we lawyers should commit to a more modest approach, one that accepts the reality of disagreement and finds a humane way to accommodate it. Such an approach will seem defeatist to universalizers. But it has greater likelihood of success in the real world than the more ambitious programs currently on offer.
I proceed as follows. In Part I, I discuss the conflict between objective and subjective conceptions of human dignity, particularly in the context of same-sex marriage and "traditional values" resolutions at the UN Human Rights Council. In Part II, I discuss the conflict between individualist and corporate conceptions, focusing on proselytism and the right to convert. In Part III, I conclude with some observations on the implications of the disagreements I have identified.
Two notes before I begin. First, the taxonomy I offer is only partial. Other conceptions of human dignity exist, and my categories overlap somewhat. Moreover, I treat the various approaches to human dignity in broad terms. The traditions I discuss have many nuances and multiple expressions. Within each, dissenters quarrel with the mainstream positions I describe. Nonetheless, I believe my categories offer useful heuristics for appreciating the current situation.
Second, my goal in this Article is principally analytic rather than normative. My main goal is to explain in some detail the different conceptions of dignity and identify the implications for neuralgic controversies in contemporary human rights law. Unpacking the various definitions of human dignity and understanding their implications takes time. But it is a necessary step to understanding the crisis in human rights law today.
OBJECTIVE AND SUBJECTIVE APPROACHES
Louis Henkin famously referred to human dignity as the "ur-principle" of contemporary human rights. (18) Dignity is the "ultimate value," the universally agreed foundation for the entire regime. (19) The Universal Declaration's preamble affirms that "recognition of the inherent dignity ... of all members of the human family" is the basis for freedom, justice, and world peace. (20) Article 1 states that "all human beings are born free and equal in dignity and rights" and "are endowed with reason and conscience." (21) In the references to "dignity," "reason," and "conscience," one readily perceives the influence of Catholic social thought, though the Universal Declaration had other sources as well.
According to the Universal Declaration, a series of universal rights, applicable to everyone, everywhere, follows from this core principle of human dignity, including the right to religious liberty in Article 18, which I quote above. Over the ensuing decades, many other human rights instruments, both international and domestic, have followed the Universal Declaration in grounding human rights in human dignity, including the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. Like the Universal Declaration, the latter contains a right to religious liberty in its own Article 18. (22)
Neither the Universal Declaration nor any of these other instruments actually defines "human dignity," however. Nor do they explain why certain rights follow from human dignity, nor why their scope should be universal. In the Universal Declaration itself, the omission was deliberate. (23) Given the diversity of viewpoints, agreement on first principles would have been very difficult, perhaps impossible. (24) In a lawyerly way, the drafters obtained agreement on the text and "left the problem of foundations for another day." (25) Later instruments followed the same pattern. As a result, no consensus definition of human dignity exists in international human rights law. The term has many meanings, some of them quite inconsistent. As Christopher McCrudden observes, "[h]uman dignity often seems to be used on both sides of many of the most controversial political debates: on issues such as abortion, assisted suicide, genetic experimentation, freedom of expression, and gay rights, human dignity is invoked to justify apparently conflicting positions." (26)
Nonetheless, it is possible to group the different conceptions of human dignity into four broad, overlapping categories, each with implications for religious liberty. The first category is objective understandings. Objective understandings tie human dignity to external factors beyond the individual person. Dignity derives, not from a person's subjective choice, which may be disoriented or otherwise unworthy of respect, but from some "particular, preexisting norm or value" that sets the boundary of...