Parallel to these developments in religion and human rights in the East, new understandings of rights were emerging in the deserts of the Middle East that would inform later rights understandings in the West. The first of these, chronologically, was Judaism, which grew out of the Noahide Covenant with the Jews as the chosen people after the great flood and was reinforced with the Mosaic Covenant that included the Decalogue, or Ten Commandments. For David Novak, a scholar of Jewish religion and philosophy, the Jewish tradition raises the question ‘of whether a “human” right can only be exercised by an individual or whether a human collective can exercise a right too’, particularly when it comes to ‘specifically Jewish duties’, that ‘only members of the covenant between God and Israel can exercise because they alone are the people obligated by the full Torah’.31 There are three kinds of rights in Judaism, Novak points out: ‘(1) those rights that God justifiably claims for himself, (2) natural rights that all humans justifiably claim for themselves, individually or collectively, and (3) Torah rights that Jews justifiably claim for themselves, individually or collectively.’32 Along with this third set of rights flowing from the covenant (ha-berit), the Jewish understanding of rights emphasizes normative commandments (mitsvot) as required by the covenant and by normative law (halakhah) as interpreted by Jewish rabbinical and legal authorities. The Jewish understanding of duty (mitsvah) is one in which ‘a right engenders a duty instead of a duty engendering a right’.33
These rights and duties are manifest in relations between humans and God and between humans and other humans, including the relationship between the individual and the community. That humans are created in the image of God (be-tselem elohim) is the basis for both the dignity of the human being in which ‘humans share with God the personal attributes of intellect and will’ and the basis for rights, including the specific right of religious freedom by which humans are ‘capable of being addressed by God’ and possessed of the ‘capacity freely to accept or reject what God has commanded one to do’.34 In this way, religious freedom in Judaism is construed less as freedom of choice, than as freedom to assent to the invitation and command of God. In relations between humans, Jews are to observe the biblical commandment ‘you shall love your neighbor as yourself’ (Leviticus 19:18). This rendering of (p. 19) the Golden Rule in the Jewish tradition is the foundation of the moral law, sometimes also encountered in the negative formulation of Rabbi Hillel the Elder: ‘What is hateful to you, do not do to your fellow.’35 Relations with fellow Jews are lived out under the understanding that they are both created in the image of God and fellow members of a covenant community. Relations with non-Jews are governed by the principle pertaining to ‘resident sojourners’ (ger toshav) under which non-Jews who accept the basic moral law can ‘enjoy the same civil rights and be obligated by the same duties as a full-fledged Jewish citizen of that polity’.36 Jews living in foreign lands, as many have done in the course of various Jewish diasporas, are expected to adhere to the principle of dina d’malkhuta dina—‘the law of the land is the law’—a principle of political obedience to the law, except where it conflicts with halakhah. Orthodox Jewish communities around the world retain rabbinical courts (bet din) charged with adjudicating matters of ritual law and personal status, including the issuance of bills of divorce.
A second Middle Eastern religion, developing millennia later in the seventh century CE, was Islam. Muslim understandings of human rights have been a major topic of debate since the inception of the modern human rights regime that began with the adoption of the Universal Declaration of Human Rights (UDHR) in 1948, but tensions have re-emerged in recent decades in the form of vocal challenges to Western human rights norms by some Islamist schools.37 Islam today is an extremely diverse and fast-growing religion, extending through large swaths of Africa and Asia, from Morocco to Indonesia, with sizeable immigrant communities in Europe and North America. Abdullahi An-Na’im, an Islamic law scholar, argues that the framing of the discussion in terms of the compatibility of human rights with Islam is both problematic and counterproductive. The compatibility argument ‘assumes that there is a verifiably identifiable monolithic “Islam” to be contrasted with a definitively settled preconceived notion of “human rights”’, when in light of the diversity and decentralized leadership structure of Islam, the ‘most anyone can legitimately speak of is his or her view of Islam, never Islam as such, and of human rights as they are accepted around the world, including by Muslims’.38References(p. 20)
Granting the necessary caveats about Muslim diversity and human rights universality, there are principles within Islam that can be seen as providing certain core commitments to human rights analogous to those of other world religions. As Islamic legal scholars Azizah Y Al-Hibri and Raja M El Habti have pointed out:
The Qur’an states that God created all humanity from a single nafs (soul or spirit), created from like nature its mate, and from the two made humanity into nations and tribes so that they may get to know each other, that is, to enjoy and learn from each other’s diversity. (Q. 4:1, 49:13) The only proper criterion for preference among people is that of piety, a quality achievable by anyone (Q. 49:13).39
This principle has been interpreted as both an affirmation of Muslim diversity and a basis for gender equality.40 In interpreting these Qur’anic passages on diversity, they further note that ‘Muslim scholars permitted Muslims in various countries to import into their laws cultural norms that do not contradict Muslim law’.41 This principle allowed such practices as polygamy to exist in the Muslim world, though with limits on the number of wives and normative expectations of regarding equality that also reflect Muslim ambivalence about the justice of the marital relationships that may result, particularly for women.
Other practices, such as ‘honour killings’ for the crime of extramarital sex (zina) have been more widely proscribed under Islamic law. Other passages in the Qur’an suggest a basis for educational (Q. 39:9) and economic (Q. 4:32) rights for both men and women,42 a reflection of the concern for intellectual and social development in Islam that sustained centuries of Islamic scholarship and exchange of ideas with the West, along with economic development through the interest-free system of Islamic finance under Sharia. Islam also contains a principle of religious freedom in the Qur’anic injunction that there can be ‘no compulsion in religion’ (Q. 2:256), as well as principles protecting the religious rights of non-Muslims (dhimmis) residing in Muslim lands.43
The question of Sharia has been a prominent one in international human rights debates, particularly around the common practice of Muslim nations inserting reservations into international human rights agreements, pledging adherence only insofar as the content does not contradict Sharia. Sharia is both a system of religious law and a moral code, including criminal and economic law and political and civil liberties, as well as areas of personal law dealing with sexuality, marriage, and family, and ritual laws (p. 21) addressing procedures for religious observance. The comprehensiveness with which Sharia governs Muslim life, sometimes to the severe qualification—and sometimes abrogation—of human rights is a topic of particular concern. As the Islamic scholar Hisham Hellyer has observed: ‘Religion in the Islamic sense “does not concede the dichotomy of the sacred and the profane”; it includes both the temporal and material world (al-dunya), and the world beyond (al-akhirah)...A rights discourse sustainable within Islam flows from metaphysical and spiritual considerations that at the very least do not contradict religion, and ideally derive from it.’44 Thus, he maintains: ‘If religion is not relevant for all spheres of activity, it is simply not religion, as far as believers are concerned.’45
Hellyer further observes that, in contradistinction to Islam:
Rights discourse has different points of departure and remains a secular discourse at least in its origins. Rights accorded to the individual in Islam do not find their authenticity or authority by claiming interpretations of rationality or reason, even though reason and the rational may indeed be brought to bear on the issue in deeply influential ways.46
The heart of the human being in Islam is thought to contain the divine, Hellyer notes, in a way that makes the individual human being a ‘representative of God Himself on earth (khalifat-l-Allah fi-l’ard)’47 and demands a purity and comprehensiveness of submission in most, if not all, areas of life in a way that is challenging for secular conceptions of human rights. Yet, that very notion of a divine element in each human being provides perhaps a stronger foundation for human rights than other claimed rationales.
The development of human rights in the Western Christian48 tradition that has been so influential in the modern development of human rights has its origins both in Jewish law and in classical Roman understandings of rights and liberties, particularly as elaborated in the medieval and early modern period. These Roman understandings form an intricate latticework of arguments about individual and group rights and liberties which were eventually informed and transformed by Stoic and Christian ideas. Both before and after the Christianization of Rome in the fourth (p. 22) century CE, classical Roman jurists sometimes used the Latin term jus to identify a subjective ‘right’ in the sense of a person, a subject, ‘having a right’ against another that could be defended and vindicated. These ideas would later be developed by medieval Catholic canonists and moralists and expanded by later neo-scholastic writers.
The rediscovery of the ancient texts of Roman law in the late eleventh and twelfth centuries–made available to Western Christian scholars in Latin translations from the Arabic versions in use by Muslim scholars in the Middle East and in such polyglot and interreligious centres as Cordoba in the Andalusia region of Spain49—helped to trigger a renaissance of subjective rights talk in the West. Medieval jurists differentiated all manner of rights and liberties. They grounded these rights and liberties in the law of nature (lex naturae) or natural law (jus naturale), and associated them variously with a power (facultas) inhering in rational human nature and with the property (dominium) of a person or the power (potestas) of an office of authority (officium).
Medieval jurists repeated and glossed many of the subjective rights and liberties set out in Roman law–especially the public rights and powers of rulers, the private rights and liberties of property. They also set out what they called the ‘rights of liberty’ (jura libertatis), which comprised a whole series of freedoms, powers, immunities, protections, and capacities for different groups and persons.50 Among the most important of these were the rights protecting the ‘freedom of the church’ from secular authorities. These early formulations of religious group rights against secular authorities would become axiomatic for the later Western tradition—and now figure prominently in modern concepts of religious autonomy, corporate free exercise rights, and the rights of legal personality for religious groups. In the twelfth and thirteenth centuries, canon law jurists refined the rights further, promulgating rules and rights that are still at the heart of the modern Code of Canon Law that governs Catholicism worldwide.
These rights set out at medieval Catholic canon law were, in practice, often narrowly defined in scope and limited in application. Medieval Christendom was no liberal democracy—as the blood of too many martyrs can attest. But a great number of the basic public, private, penal, and procedural rights that are recognized by state and international political authorities today were prototypically formed in this medieval period. These basic rights formulations came to be seen as ‘natural rights’—rights inhering in a person’s human nature—regardless of that person’s status within church, state, or society. This natural rights theory was greatly expanded (p. 23) in the later Middle Ages and early modern periods through the work of such scholars as William of Ockham, Bartolomé de las Casas, Francisco de Vitoria, Fernando Vázquez, Francisco Suarez, and others. Vitoria was especially prescient in pressing for the rights of indigenous peoples as well as the rights of soldiers and prisoners of war—both critical topics in the budding international law of the day.
This development of human rights within the medieval and early modern Catholic tradition gave way in subsequent centuries to contestation around the notion of human rights in general, and of religious human rights in particular. Much of this was reaction to the rise of a modernity in which principles of Enlightenment liberalism seemed to be winning the day in ways that threatened Church authority and autonomy and which seemed inadequate buffers against the rise of forces of communism, fascism, and revolution. As Catholic theologian Charles Curran has observed, the Church ‘staunchly opposed human rights in the eighteenth and nineteenth centuries and well into the twentieth century’, resisting both ‘modern liberties and the human rights associated with them’.51 Pope Leo XIII, author of the papal social encyclicals that laid the groundwork for the tradition of Catholic social thought that subsequently led the articulation of all manner of rights and duties in the name of social justice and the common good, was also opposed to religious liberty and the freedom of worship as contraventions of ‘the chiefest and holiest human duty’52 to the one true God in the one true religion. It would be seventy-five years before Pope John XXIII would support the concept of human rights in the encyclical Pacem in terris and two more years before the Second Vatican Council in 1965, under the influence of the American Jesuit theologian John Courtney Murray, would embrace the right to religious freedom for all human beings. In recounting these developments, Curran argues that the more recent teachings of Pope John Paul II and Pope Benedict XVI have returned in ways, to the earlier privileging of truth over freedom when it comes to religion and human rights.53
While ‘freedom of the church’ was the initial manifesto of the twelfth-century Papal Revolution, ‘freedom of the Christian’ was the initial manifesto of the sixteenth-century Protestant Reformation. Martin Luther, Thomas Cranmer, Menno Simons, John Calvin, and other leading sixteenth-century Protestant reformers all turned to Biblical texts to press for rights. They were particularly drawn to the many New Testament aphorisms on freedom. They were also drawn to the Bible’s radical calls to equality.54 These and other biblical passages inspired Luther and his colleagues to demand freedom of the individual conscience from intrusive canon laws and clerical controls, freedom of political officials from ecclesiastical power and (p. 24) privileges, and freedom of the local clergy from central papal rule and oppressive princely controls.
One important Protestant contribution to Western rights talk was to link human rights with biblical duties. Early Protestants believed that God had given each human the freedom needed to choose to follow the commandments of the faith. Freedoms and commandments, rights and duties belonged together in their view. To speak of one without the other was ultimately destructive. Rights without duties to guide them quickly became claims of self-indulgence. Duties without rights to exercise them quickly became sources of deep guilt. Protestants thus translated the moral duties set out in the Bible into reciprocal rights.
Protestants focused first on the duties set out in the Decalogue, or Ten Commandments, which they took to be the most pristine summary of the natural law. The First Table of the Decalogue, they noted, prescribes duties of love that each person owes to God—to honour God and God’s name, to observe the Sabbath day of rest and holy worship, to avoid false gods and false swearing. The Second Table prescribes duties of love that each person owes to neighbours—to honour one’s parents and other authorities, not to kill, not to commit adultery, not to steal, not to bear false witness, not to covet. A person’s duties toward God can be cast as the rights of religion. Each person’s duties towards a neighbour, in turn, can be cast as a neighbour’s right to have that duty discharged. Starting with this biblical logic, Protestant writers spun out endless elaborations of rights based on other biblical duties toward the poor and needy, widows and orphans, slaves and sojourners, the persecuted and imprisoned, the sick and the grieving, and other vulnerable parties to food, shelter, support, nurture, comfort, education, housing, and more.
Another major Protestant contribution to the religious foundation of rights was its emphasis on the role of the individual believer in the economy of salvation. The Protestant Reformation did not invent the individual or individual rights. But sixteenth-century Protestant reformers gave new emphasis to the (religious) rights and liberties of individuals at both religious law and civil law. The Anabaptist doctrine of adult baptism, in particular, built on a voluntarist understanding of religion in which believers were called to make a conscientious choice to accept the faith—metaphorically, to scale the wall of separation between the fallen world and the perfection of Christ in the realm of religion. Later Free Church followers converted this cardinal image into a powerful platform of liberty of conscience, free exercise of religion, and separation of church and state—not only for Christians, but eventually for all peaceable believers. Their views had a great influence on the formation of protections of religious liberty in the American Constitution. They would later come to expression in international human rights instruments that guaranteed the right freely to choose and change one’s religion.
An important contribution to Western rights talk was the Protestant logic of revolution against tyrants who persistently and pervasively violated the people’s (p. 25) ‘fundamental rights’. Protestant jurists and theologians developed a theory of political revolution that was based effectively on a Christian government contract or covenant theory. Every political government, they argued, is formed by a tacit or explicit covenant or contract sworn between the rulers and their subjects before God. If any of the people violate the terms of this political covenant and become criminals, God empowers the rulers to prosecute and punish them, up to and including the death penalty in extreme cases. In turn, if any of the rulers violate the terms of the political covenant and become tyrants, God empowers the people to resist and to remove them from office, through lethal force if necessary.
The issue that remained for early modern Protestant political theorists was how to determine which rights were so ‘fundamental’, so ‘inalienable’, that, if chronically and pervasively breached by a tyrant, triggered the foundational right to organized resistance and revolt against the tyrant. The first and most important rights, they reasoned, had to be the people’s religious rights. Christians, after all, are first and foremost the subjects of God and called to honour and worship God above all else. If the magistrate breaches these religious rights, then nothing can be sacred and secure any longer. By 1650, Protestants had used this logic to develop and defend almost every one of the ‘fundamental rights and liberties’ that would appear, a century and a half later, in the United States Bill of Rights of 1791. They set out these fundamental rights in detailed constitutions and bills of rights written for the Netherlands, Scotland, England, and the American colonies in the seventeenth century.
A third major Protestant contribution to Western rights talk was its development of new understandings of the relationship of church and state, and new ways of constructing the rights of the church. The Protestant Reformation permanently broke the unity of Western Christendom under central papal rule, and thereby laid the foundations for the modern constitutional system of confessional pluralism. Particularly prescient was the Anabaptist Reformation idea of building a Scheidingsmaurer, a ‘wall of separation’ between the redeemed realm of religion and the fallen realm of the world. Anabaptist religious communities were ascetically withdrawn from the world into small, self-sufficient, intensely democratic communities, governed internally by biblical principles of discipleship, simplicity, charity, and Christian obedience.
Also influential was the Calvinist model of governing the church as a democratically elected consistory of pastors, elders, and deacons. These consistories featured separation among the offices of preaching, discipline, and charity, and a fluid, dialogical form of religious polity and policing centred around collective worship, the congregational meeting, and the democratic election of religious officials with term limits. Later Calvinists in Europe and North America would use these democratic church polities as prototypes for democratic state polities with separation of powers, democratic election, term limits, and town hall meetings with the right of all members to petition the political authorities. Both Calvinists and Anabaptists were (p. 26) critical in the development of the logic of separation of religion and the state that dominates modern Western constitutionalism.