Between rogues and liberals: towards value pluralism as a theory of freedom of religion in international law.

Author:Danchin, Peter
Position:Human Rights and Fundamentalisms - Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law

How are we to think about the seemingly endless series of antinomies and contradictions to which the relationship between religion and human rights gives rise, and to what extent accordingly do we have a coherent notion of religious freedom in international law? Drawing on recent women's rights scholarship in the areas of culture and religion, (1) I believe that a central problem in our understanding of the relationship between religion and human rights is how international human rights law itself constructs and imagines the category of "religion" and the right to "religious freedom" according to certain problematic--perhaps even fundamentalist--conceptions of public reason and individual freedom. The result has been two interrelated distorting effects in rights discourse.

The first concerns the identity of the subject of international law the abstract category of "the state," or perhaps the "nation-state." To the extent that religious and cultural forms are embedded in the (public) laws and practices of non-Western states, any attempt to justify these norms against the international legal norms of equality and nondiscrimination has been axiomatically viewed as constituting a disreputable form of cultural relativism justifying patriarchal and pre-modern hierarchies and power relations. The universal claims of equality and nondiscrimination, however--even in the most "liberal" of societies raise difficult and complex questions in their relationship to religion and culture. If a plurality of conflicting values is to be mutually respected (rather than uncritically dominated by a single value), conflicts between equality norms and collective identities must be interpreted and negotiated intersubjectively in continuity with each society's historic traditions and reference points. Indeed, there is growing evidence to suggest that "fundamentalist" resistance to the redefinition of cultural and religious forms can be correlated with the extent to which outside portrayals or attempts to influence a tradition are made in condemnatory or contemptuous terms, in a kind of vicious circle.

The second aspect concerns how to understand and define the freedom of legal subjects, in one case the "human rights" of individuals and certain specified groups, in another case the "sovereignty" of states. To the extent that religious traditions themselves (independent of any state laws and practices) are the source of unequal and discriminatory treatment, the...

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