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Introduction

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Angus J.L. Menuge

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Human Rights are All the Rage

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Human rights have never been so popular. On the one hand, they are used as

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ideological weapons to critique political and cultural adversaries. Liberals attack

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the existing marriage laws for limiting the rights of homosexuals. Conservatives

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charge that religious freedom has been eroded by the imposition of secularist

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ideology in the public square. Western democracies denounce other societies for

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their treatment of dissidents and religious minorities; these democracies are in turn
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criticized for exploiting the developing world. The United States is singled out for te.
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its use of torture and capital punishment and for its failure to provide universal
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health care.
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On the other hand, appeal to human rights is used to advance the causes of social
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justice and equality. In advanced liberal democracies, this includes more and more
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of what citizens expect from life. Healthcare, education and sexual orientation
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are now increasingly viewed as fundamental to human flourishing. Yet consensus

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on a basic list of human rights has proven elusive. Not a few of the countries
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signatory to major human rights agreements exempt themselves from laws that
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contradict the dominant beliefs and customs of their people. And even if abuses
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like slavery and religious discrimination are declared illegal, the prohibition may
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not be enforced because the practices are culturally entrenched and ignored by law
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enforcement. In the West, the demand to recognize almost every strong preference
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as legally protected has led to contradictory rights claims. The right to life appears
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to be the most fundamental right of all, since, without it, no other right can be
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exercised. Yet elective abortion, euthanasia and even infanticide are also claimed
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as human rights. And while believers appeal to freedom of conscience to justify a

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religious voice in the public square, secularists charge that this violates their right
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to be free from such intrusion.

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The Goal of this Collection

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All this disagreement should make us ponder whether our zeal for proclaiming
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human rights is matched by a clear understanding of what they are. It is one thing
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to assert that the exercise of a particular interest is a human right. It is quite another
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thing to justify that assertion ontologically, epistemologically and pragmatically.

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An ontological justification must locate the basis in objective reality for asserting
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 2 Legitimizing Human Rights
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that human beings do have special, fundamental rights, rights that are universal,

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inherent and inalienable. An epistemological justification must locate an accessible,

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authoritative source or set of criteria we can use to identify human rights and to

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distinguish between legitimate and spurious human rights claims. A pragmatic

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justification must provide a feasible method for promoting the recognition and

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enforcement of human rights protections.

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In each of these three cases, the quest for justification must address several

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fundamental questions. Basic questions of ontological justification include:

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1. What is a human right?

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2. Why should we think such a thing really exists?

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3. What makes it the case that human beings have special rights?

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Basic questions of epistemological justification include:

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1. How can we know when something is a human right?
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2. How can we know when something is not a human right? co
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3. Which worldview provides the best explanation of human rights?

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Basic questions of pragmatic justification include:

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1. How can a culture be encouraged to recognize the existence of human

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rights?
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2. How can one reform a society with institutionalized human rights abuses?
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3. How can human rights legislation be enforced?

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Further, as with all rights, human rights have their limits. At what point shall we
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say that the exercise of an interest no longer qualifies as a right because it infringes
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on the equal or stronger claims of others? In justifying human rights, we must

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also consider their proper scope and limits. It is important to be able to show that
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some rights claims are spurious: they merely appropriate the language of rights to
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disguise an aggressive or self-serving agenda. For example a country’s “right” to

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protect its own borders may be used to rationalize genocide, and a culture’s “right”
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to express a preferred religion may curtail the freedom of religious minorities.

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The purpose of this collection is to address these fundamental questions of the

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legitimacy of human rights claims and to consider the merits of both secular and
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religious perspectives. It is divided into three parts. The first part (“The Foundation
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of Human Rights”) discusses the relative merits of theism and naturalism as

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foundations for human rights, with authors defending both sides of the question.
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The second part (“Religious Liberty and the Secular State”) considers the nature,
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scope and limits of religious freedom in the West and around the world. The final
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part (“Enforcing and Motivating Human Rights”) ponders the best way to persuade
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people to recognize, respect and protect human rights.

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The Foundation of Human Rights

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In Chapter 1, Paul Copan focuses on the primary question of ontological

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justification and argues that without the biblical teaching that humans are made in

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the image of God, no list of our natural capacities provides an adequate foundation

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for human rights. A major problem for non-theistic ethics is that even the best are

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incomplete: they simply assume humans have special dignity and worth without

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showing why this is to be expected on the basis of their underlying ontology.

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Indeed, many of the most incisive atheist philosophers (such as Bertrand Russell,

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J.L. Mackie and Kai Nielsen) have concluded that objective moral values cannot

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be grounded in an unintended physical universe. Copan further argues that as

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a matter of historical fact, the secular insistence on human rights itself derives

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from borrowed theistic capital, and that it is this capital which provides the actual

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foundation for our claims of human worth and dignity. At the end of his chapter,

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Copan offers an extensive rebuttal to the well-known Euthyphro dilemma, which

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seeks to show that theism cannot ground moral obligations.
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In the next chapter, Paul Cliteur advances the contrary view, that human te.
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rights are the child of secularism. Cliteur argues that theism is inadequate as a
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foundation for human rights because it promotes the harm of other people (holy
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wars, stoning of homosexuals, male and female circumcision) and animals. He

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uses an example of the latter (unstunned ritual slaughter) to argue that the secular
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state has the right to limit religious freedom where it promotes cruelty, violence
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or other harm, or where it violates standards of equality or reasonableness. In

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the process, Cliteur implicitly argues for the more general thesis that secular
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reason can recognize a framework for evaluating human rights claims which is
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independent of any religious revelation. If a believer cannot demonstrate that a

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practice is consistent with this framework, Cliteur argues, he or she cannot expect
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the law to protect that practice.

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It will be observed that a primary disagreement between Copan and Cliteur

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is whether secular reason actually can provide a framework for adjudicating

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conflicting human rights claims without drawing on theistic capital. If it can,

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then there must be some way of grounding human rights in nature (or specifically
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human nature) without appeal to God.

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A popular way of dispensing with a theistic explanation is to argue that morality

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can be understood as an outgrowth of human evolution. In my contribution to this

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collection, I consider the prospects of Evolutionary Ethics (EE) as a foundation

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for human rights. My analysis distinguishes Weak EE, which claims only that
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our moral psychology is explained by our natural history, and Strong EE, which
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asserts that this history explains the existence of moral values. The main thrust
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of the chapter is that human rights discourse is incompatible with grounding

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morality in the contingencies of naturalistic evolution. If Strong EE is true, the

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proper conclusion is that no such things as human rights exist. There simply
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are no universal, inherent, inalienable rights humans have simply in virtue of

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being human because if humans had different biological histories these rights
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would not exist. For example, there cannot be a human right to life since, if

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we had been raised like hive bees, fratricide and female infanticide would be

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permissible (perhaps obligatory). On the other hand, if Weak EE is true, while

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human rights may exist, we are in no position to know them, since it would

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be at best a lucky coincidence if our moral sensibilities tracked moral reality.

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Either way, Evolutionary Ethics fails to vindicate the project of justifying human

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rights discourse by appeal to secular reason. This appears to leave a transcendent

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foundation for human rights as a live option.

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To the contrary, in the last chapter of the section, Friedrich Toepel worries

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that religious pluralism makes it impractical to derive human rights from a

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transcendent source. After all, theistic religions have scriptures which disagree,

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not only about the nature of God and humanity, but also about specific human

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rights: for example, the prohibition of apostasy in Islamic Shariah law is regarded

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as a violation of religious liberty by Christians and Jews. The same problem arises

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for secularists, since they also have conflicting visions of the good. For example,

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Kantians, utilitarians and ethical egoists have fundamental disagreements about
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the nature of human flourishing. Toepel’s conclusion is that, even if there is a co
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correct ethical foundation for human rights, the lack of moral consensus makes
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this an impractical basis for implementing human rights protections. What is

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needed instead are credible institutions that can create a framework of positive law
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recognized across ideological divides. Toepel is not a pure legal positivist and does
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not claim that human rights can simply be reduced to what is recognized by positive
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law. Rather, as a “constructo-positivist,” he suggests merely that, as a practical

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and linguistic matter, it is most helpful to restrict human rights discourse to what
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can be institutionalized. From my perspective, this means that Toepel’s proposal

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is not attempting to establish the ontological or epistemological foundation for

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human rights. Instead, it aims to show the best pragmatic foundation—one that
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will maximize human rights protections in an ideologically pluralist milieu.

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Religious Liberty and the Secular State

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How can the state protect religious liberty and refrain from establishing a favored
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religious position? One of the founding ideals of the United States is that religious
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freedom is best protected by a secular state, one which remains neutral between
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religions. Yet it is not so easy to say what counts as a secular state. The word “secular”
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means “not religious,” and that means that state neutrality between religions can
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only be achieved if the state operates with a correct definition of religion. In his
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chapter, John Calvert argues on the basis of authorities in both philosophy and
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law, that the correct definition of religion must be an inclusive, functional one. If
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the state adopts a narrow definition of “religion” as theistic belief, then the state
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will favor non-theistic religions, such as Secular Humanism and Atheism. This
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leads to the intrusion of religious bias in public schools because textbooks and
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instruction may contain religious material wrongly classified as secular. In fact,

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Calvert argues that this has already happened. While Methodological Naturalism

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(the claim that science can only appeal to unintelligent causes) can have great

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value as a limited heuristic in many areas of science, when it is used to define

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the scientific method, students are not permitted to see the evidence that might

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support a theistic understanding of nature. The actual effect of this is to promote

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the religious views of materialist atheists (and theists who deny that God’s actions

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are detectable in the natural world) and to discriminate against theists who believe

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in natural theology. This can be avoided if a broader, functional definition of

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religion is used, which the Supreme Court has recognized in other cases.

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In the next chapter, Vito Breda considers how matters of religious liberty are

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complicated by the greater religious diversity of modern Western democracies. His

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discussion focuses on Lautsi v. Italy, a recent case concerning religious symbols

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in the classroom. In this case, the European Court of Human Rights took the view

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that, in the context of religious pluralism, secularism cannot simply be assumed to

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be the default, neutral position. This does not mean that religious expression cannot

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be limited (it can, as soon as there is a clear threat to public order, or evidence of
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presence of religious symbols in some classrooms can be understood as part of a

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cultural dialogue, rather than an attempt to impose religious belief on others. In

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this vein, the European Court allowed signatory states some discretion on deciding
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whether religious symbols can be displayed. Breda sees this as an important case,
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because it represents a move away from the binary conflict between a supposedly
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neutral secularism and “religion,” to one that allows states to accommodate a

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plurality of religious perspectives.

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Still, just when can religious freedom legitimately be restricted? In the next
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chapter, John Warwick Montgomery explores this thorny topic, noting that while
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the major human rights instruments do recognize limitations on religious liberty,

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they do not provide clear guidelines for discerning when these limitations apply.
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Today, for example, some Islamic countries either refuse to ratify human rights
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covenants or do so with reservations, indicating that they recognize no obligation

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to comply if those covenants conflict with Shariah law. If we find this dissent
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from basic human rights agreements unacceptable in some cases (for example, the
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imposition of the death penalty for apostasy), what criteria can we use to restrict
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these practices? As a precedent for limiting religious freedom, Montgomery

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considers the Mormon polygamy case, Reynolds v. US, and finds it wanting because
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it creates a false dichotomy between religious belief and religious action. This can
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easily rationalize the ghettoization of believers in their places of worship found in

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totalitarian states. Religious freedom will always entail some public expression,
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so the real question is at what point, and on what grounds, this expression can
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be restricted. Montgomery argues that this limit cannot be adequately defined by

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appeal to natural law (it is too vague), neo-Kantian ideas (neither individuals nor
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states are willing to forego their special advantages), or legal positivism (it allows
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obnoxious states to institutionalize religious discrimination). More generally,

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due to their self-interest, humans are incapable of defining universal, inalienable

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rights: they must come from a transcendent source. In response to concerns that

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this is impractical due to religious pluralism, Montgomery argues that even if the

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proper basis for religious freedom is found in scripture, this can still be defended

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on independent grounds as good for society, and that the superior textual and

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historical reliability of the Bible over rival religious texts can be upheld.

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Enforcing and Motivating Human Rights

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To say that something is a human right rings hollow if there is no effective means

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of redress for human rights abuses. Hendrik Kaptein explores the unpopular idea

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of retribution, and argues that it is best understood as the attempt (not always

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realizable) to restore victims to their original situation, as if no abuse had occurred.

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As developed by Kaptein, retribution in this sense means, in effect, doing the

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right that should have originally been done. So understood, retribution is not

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something over and above respecting human rights: it is part of what it means to
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say that human rights are respected. It is meaningless for a state to say that it has te.
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a commitment to human rights and then to do nothing to redress violations when

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they occur. Kaptein argues that the de facto gap between human rights law and
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actual enforcement requires urgent reform.

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Justice Dallas Miller agrees, and shows that on an international level, even
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where human rights legislation is in place, massive abuses continue. Miller

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focuses on what motivates the recognition and protection of human rights. While
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some claim this motivation derives from the Enlightenment, Miller argues that
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the historical and contemporary data show that culturally effective human rights
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movements are most often the result of Judeo-Christian principles. Miller points
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out that the various secular rationales for human rights (such as utilitarianism,
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neo-Kantian approaches and Marxism) all fail to transform the selfish human
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orientations that fuel abuses. And secularist attempts to justify human rights have
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failed to answer the skeptical critique of cultural relativists, undercutting the

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rationale for human rights activism, and providing cover for tyrannical regimes. By
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contrast, Miller argues, the drafting of the Universal Declaration of Human Rights
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was significantly shaped by a Judeo-Christian worldview, and this had a lasting

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influence on subsequent human rights instruments. At the same time, the actual
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state of human rights protections is abysmal in many countries. For example, the
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“new slavery” and other forms of human trafficking are actually increasing. While
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legal remedies are needed, it is naïve to think they will be accepted or enforced
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unless there is widespread cultural recognition of human rights. Miller argues,

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however, that some of the most effective promoters of this recognition have been,
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and continue to be, committed Christians, who firmly believe that all people are
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valuable before God, and that we should treat others as we ourselves expect to be
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treated. Faith, Miller concludes, has an important role in producing actual human
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rights protections and enforcement.

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Dobrochna Bach-Golecka agrees and argues that a vital player in propagating

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a high view of human value and dignity is the Christian Church. Focusing on

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the example of Catholic social teaching, she shows how the Church supports

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human rights recognition in three ways. First, the Church has a general influence

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on the moral norms a culture accepts. Second, the Church provides criteria for

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distinguishing right and wrong behavior. Among these, most important are the

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virtues of charity and solidarity: if a culture embraces these, it cannot passively

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accept the victimization of one group in its midst. Rather, it will stand with and for

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that group until its mistreatment ends. Third, while the Church has no means of

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coercive enforcement, it can call its members and the wider society to repentance,

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and can offer the peace of reconciliation. Bach-Golecka goes on to show how

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Catholic teaching motivates respect for human rights at several levels: the

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congregational (where members are influenced by social teaching), the regional

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(through a conference of bishops) and the international (through the Vatican). At

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every level, the Church promotes the interdependence and solidarity of all human

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beings before God, a powerful basis for opposing the oppression of the powerless
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A Continuing Dialogue
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While there are many other issues and perspectives that might have been included,
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my chief hope for this collection of chapters is that it will reinvigorate the
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conversation about the proper foundation for human rights. If we seek to protect
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human freedom and dignity, we can only hope to make that a reality if we can
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convince people that fundamental human rights are real, knowable and vitally
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important. So it is essential to find the best possible grounding for human rights
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ontologically, epistemologically and pragmatically. While contributors to this

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volume do not all agree on the best answers here, they do share the conviction that
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human rights theory must translate into real-world protections. The alternative is
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that academics continue the comfortable path of using human rights as rhetorical
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machines de guerre for their preferred political agendas. This not only corrupts
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the discussion with self-serving motives, it also has no discernible impact on

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the widespread human rights abuses suffered disproportionately by members of

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developing nations. For this reason, I hope that the connection many contributors
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draw between the theoretical justification and the practical implementation of

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human rights will not merely be intellectually interesting, but will also inspire
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the work of lawmakers, political and religious leaders, and human rights activists.
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