The Johns Hopkins University Press Human Rights Quarterly

The Problem of Secularism in Human Rights Theory
Author(s): Michael Freeman

Source: Human Rights Quarterly, Vol. 26, No. 2 (May, 2004), pp. 375-400
Published by: The Johns Hopkins University Press
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HUMAN RIGHTS QUARTERLY
The Problem of Secularism in

Human Rights Theory
Michael Freeman*
ABSTRACT
Theorists and practitioners commonly assume that the concept of human
rights is secular and that it normally takes priority over other values. These
assumptions are controversial for those who approach human rights from
the perspective of religious beliefs. This article examines the arguments
both of those who claim that religious beliefs must interpret human rights
in their own terms and those who claim priority for the international
(secular) legal understanding of the concept. It compares Western and
Islamic approaches to religion, secularism, and human rights, and reaches
two conclusions: 1) at the philosophical level, there may be no decisive
argument for according priority to secularism or religion; 2) the politics of
this debate may be more important in practice than questions of religious
philosophy.
I. THE PRIORITY OF HUMAN RIGHTS
The United Nations' conception of human rights accords to its principles

and norms a certain priority over competing considerations. The Universal
Declaration of Human Rights, for example, associates human rights with
"the highest aspiration" of the common people, and proclaims itself to be a
"common standard" for all.1 It is well known that this claim raises questions
about the validity of universal principles in a culturally diverse world, and
* Michael Freeman is a Research Professor of Political Theory in the Department of

Government, University of Essex, United Kingdom.
1. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III),
U.N. GAOR, 3d Sess. (Resolutions, part 1), at 71, U.N. Doc. A/810 (1948), reprinted in
43 Am. J. Int'l L Supp. 127 (1949).
Human Rights Quarterly 26 (2004) 375-400 ? 2004 by The Johns Hopkins University Press
376 HUMAN RIGHTS QUARTERLY Vol. 26
these questions have been thoroughly discussed in human rights theory.2

Human rights advocates commonly assume that human rights provide the
"common," that is universal, standard, and that the question of "culture" is
either how cultural barriers to the implementation of human rights standards
might be removed, or to what extent concessions might legitimately be
made to cultural diversity from the standpoint of universality. These are,
however, not the only ways in which the question may be posed. Many of
the world's cultures, especially those associated with the great religions and
philosophies such as Confucianism, Buddhism, Judaism, Christianity, and
Islam are ancient, widespread, and deeply rooted in the lives, beliefs, and
values of billions of people. It is often said that these religions and
philosophies can support human rights, but there is no doubt that some
human rights norms can conflict with some requirements of religion or
philosophy. Insofar as these beliefs provide for those who hold them the
most fundamental reasons for action, it is not obvious why they should yield
to human rights standards in cases of conflict.
This question of the possible conflict between human rights principles
and religions or philosophies has resided at the heart of human rights theory
from the beginning. While the Universal Declaration was being drafted,
United Nations Economic, Scientific and Cultural Organization (UNESCO)
undertook an investigation into the theoretical problems of such a project.
In his introduction to the published results of this investigation, Jacques
Maritain argued that a consensus on the justification of human rights would
be impossible because of the diversity of philosophies around the world.3
Maritain could justify the concept on the basis of his philosophy, which he
believed to be true, but he could not reasonably expect that there would be
a global consensus on this justification. There might be a consensus on what
human rights there were, but not on why there were these rights. Different
philosophies might justify human rights in different ways, but they might
well differ in their specification on the limits of, and mutual relations
among, human rights. He warned that the attempt to achieve a global
consensus on human rights might produce an agreed text, but the different
philosophies might prove to be barriers to the implementation of the
principles contained in the text.4 This raises the question as to whether the
priority that human rights discourse gives to human rights over other values
is itself a universally valid value. The assumption that it is has been
2. Jack Donnelly, Universal Human Rights in Theory and Practice 109-24 (1989); Peter R. Baehr,
Human Rights: Universality in Practice 9-19 (2001); Michael Freeman, Human Rights: An
Interdisciplinary Approach 101-30 (2002).
3. Jacques Maritain, Introduction to Human Rights: Comments and Interpretations 9-17
(UNESCO ed., Greenwood Press 1973) (1949).
4. Id.
2004 Secularism in Human Rights Theory 377
challenged by the recently developed concept of internal dialogue about

human rights.
II. THE CHALLENGE OF INTERNAL DIALOGUE
The concept of "internal dialogue" does not challenge the universality of

human rights directly, but does so indirectly by insisting that the theory and
practice of human rights ought to be developed by dialogue internal to
cultures. For example, Article 20 of the Constitution of the Islamic Republic
of Iran states that all citizens enjoy all human rights equally "in conformity
with Islamic criteria."5 Human rights advocates might believe that the
reference to Islamic criteria simply undermines the apparent commitment to
the universality of human rights.6 Muslims might respond, however, by
affirming that if they are to subscribe to human rights principles, they must
do so "in conformity with Islamic criteria." To do otherwise would be to
abandon their religion, which cannot reasonably be required by the
international human rights community, most obviously because Article 18
of the Universal Declaration guarantees their right to freedom of religion.7
Norani Othman, a Malaysian Islamic women's rights activist, has
acknowledged that there are conflicts between human rights and common
formulations of Islam.8 Muslims, she argues, can decide to what extent they
should accept the concepts that are supposed to provide the basis for a
universal conception of human rights only after they have critically re
evaluated their Islamic heritage.9 Human rights activism must be grounded
in local culture. Where religious orthodoxy is a source of laws that violate
human rights, internal religious contestation is necessary. There are, for
example, Islamic objections to the UN Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW).10 These objections must
be met by Islamic responses. Given the deep commitment of Muslims to
their religion, such responses are likely to be much more effective than
direct appeals to international law. Othman believes that such responses
can be made by the reinterpretation of Islam's foundational religious texts
5. Ann Elizabeth Mayer, Islam and Human Rights: Tradition and Politics 198 (3rd ed. 1999).
6. Id. at 68-76.
7. Universal Declaration of Human Rights, supra note 1.
8. Norani Othman, Grounding Human Rights Arguments in Non-Western Culture: Shari'a
and the Citizenship Rights of Women in a Modern Islamic State, in The East Asian
Challenge For Human Rights 169 (Joanne R. Bauer & Daniel A. Bell eds., 1999).
9. Id. at 174.
10. Convention on the Elimination of All Forms of Discrimination Against Women, adopted
18 Dec. 1979, G.A. Res. 34/180, U.N. GAOR 34th Sess., Supp. No. 46, U.N. Doc. A/
34/36 (1980) (entered into force 3 Sept. 1981), reprinted in 19 I.L.M. 33 (1980).
and by providing historical contexts for the provisions of Islamic law

(Shari'a) that conflict with human rights requirements.11 The Qur'an, she
maintains, can provide a source for the affirmation of human rights. On this
foundation, the demands of Islam can be interpreted in the light of modern
conditions so as to bring them into conformity with human rights stan
dards.12 This can be achieved only through a sensitive, internal cultural
discourse.13 Ultimately, she writes, the primary project for Muslim women's
groups, in their struggle for women's rights, is not the recognition of CEDAW
per se, but consensus within their own culture that the kinds of women's
rights they are advocating are acceptable on the grounds of a public ethic
derived from their own cultural and religious sources.14 In an Islamic
society, human rights need Islamic legitimacy. The advancement of human
rights in Islamic societies requires a religious rather than the secular
approach familiar to most human rights activists, especially in the West.
Othman's Islamic conception of human rights is offered to "all faithful
believers" and "all who may yet come to recognize the supremacy of Allah,
that is, all of humankind."15 This seems to mean that "human rights" are the
rights of actual and potential Muslims, but possibly not of those who are
unlikely to become Muslims, including non-Muslim minorities in predomi
nantly Muslim societies such as Malaysia. Othman's project for an Islamic
conception of human rights may, therefore, have some strategic value in
Malaysia, but it does not generate a convincing conception of universal
human rights.16
Abdullahi An-Na'im also seeks to root human rights in Islam. He argues
that the concept of human rights raises questions of cultural legitimacy
because international law in general, and international human rights law in
particular, were formed by a small clique of lawyers, bureaucrats, and
intellectuals at a time when Western culture was hegemonic.17 The
implementation of human rights requires, therefore, that the problem of
their internal cultural legitimacy be solved. If a culture appears prima facie
to be incompatible with human rights, it can be reformed, whether
11. Othman, supra note 8, at 172.

12. Id. at 173-77.
13. Id. at 189.
14. Id.
15. Id.
16. Othman, supra note 8, at 169. Othman's approach also offers little to women such as
Ayaan Hirsi Ali, who rejected Islam and campaigned for the rights of Muslim women in
the Netherlands. See Andrew Osborn, She Dared to Criticise Islam, Now She is Fleeing
for Her Life, Observer (London), 10 Nov. 2002, at 3, available at observer.guardian.co.uk/
international/story/0,6903,837035,00.html.
17. Abdullahi A. An-Na'im, Problems of Universal Cultural Legitimacy for Human Rights, in
Human Rights in Africa: Cross-Cultural Perspectives 349-50 (Abdullahi A. An-Na'im &
Francis M. Deng eds., 1990).
internally or externally, only on the basis of respect for its traditions and of
sensitivity to its criteria of legitimacy.18 It may be counter-productive for
external human rights reformers to position subordinated internal reformers
as agents of an alien culture.
The Qur'an is, for Muslims, the word of God. Many Muslims believe
that the whole of Shari'a is divine, and that it is the whole duty of Mankind.
Shari'a, however, discriminates against women and non-Muslims, and, in
this, is clearly not in conformity with international human rights law. This
raises the question of why a Muslim should judge Shari'a by human rights
standards. An-Na'im argues that the secular approach to human rights fails
to answer this question convincingly since it requires Muslims to subordi
nate their religion to merely human, and non-Islamic, criteria.19 "[If]
secularism remains the only alternative to Shari'a, therefore, the proponents
of Shari'a will be able to enlist Muslim public opinion to their side."20 An
Na'im consequently seeks a middle way between traditional Islam, which is
incompatible with human rights, and secularism, which is incompatible
with Islam.21 He does this by distinguishing between the basic values of the
Qur'an, which is associated with the Prophet's life in Mecca, and its
historically contingent rules, which are associated with his move to
Medina.22 Further, he argues that Shari'a was constructed by Muslim jurists
over the first three centuries of Islam and is therefore not divine law. Now
Muslims have to live in a world of nation-states, constitutionalism and
international law.23 The Qur'an can retain its status as the religious basis of
Muslim life, but it must be adapted to modern political conditions. It can, he
maintains, be interpreted to support equal citizenship for men and women,
for Muslims and non-Muslims. This reformed, but still Qur'anic, Islam
would thus conform with human rights.24
An-Na'im does not believe that Muslims and secular human rights
advocates will always agree on the interpretation of human rights.25 One
problematic area is that of hudud: the criminal offences for which the
Qur'an and/or Sunna (traditions of the Prophet) provide explicit punishments,
18. Id. at 366.

19. Abdullahi A. An-Na'im, Toward an Islamic Reformation: Civil Liberties, Human Rights, and
International Law 67 (1990).
20. Id.
21. Id. at 161.
22. Id. at 12-13.
23. Id. at 7-8, 74.
24. Id. at 84.
25. Abdullahi Abdul An-na'im, Toward a Cross-Cultural Approch to Defining International
Standards of Human Rights: The Meaning of Cruel, Inhuman, or Degrading Treatment
or Punishment, in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus 36
(Abdullahi A. An-Na'im ed., 1992).
such as the amputation of a thief's hand. These raise special difficulties, as

many Muslims believe that God has decreed such punishments, and that
those who suffer them will be rewarded in the afterlife.26 These beliefs are so
deeply rooted that An-Na'im doubts that the punishments can be removed
entirely from Islamic law.27 Here, what Muslims believe to be the will of
God conflicts with the prohibition by the usual, secular interpretation of
human rights law of cruel, inhuman and degrading treatment. Even
reformed Islam, therefore, will remain in some tension with dominant
interpretations of human rights.28
Mohammed Arkoun rejects An-Na'im's approach because he holds that
the problem of the relation between Islam and modernity, including human
rights, is political rather than scriptural.29 Islamic elites have mobilized
conservative readings of the Qur'an for political purposes. This strategy has
had some success because it appeals to those who have suffered from
Western intrusions into the Islamic world or from the policies of local
Westernized elites. A religion that offers self-esteem, solidarity, and eternal
rewards may for some be more attractive than the theoretical egalitarian ism
of international law that seems in practice to serve the purposes only of the
rich and powerful.30 Ann Elizabeth Mayer suggests that An-Na'im's reform
program for Islam may be too radical and too influenced by the modern West
to be acceptable to those Muslims that he is trying to convince, while actual
"fundamentalist" elites have shown ambivalence in the application of hudud
penalties.31 Mayer agrees with Arkoun that the problem may be political
rather than religious in that "fundamentalism" flourishes under political
26. Id. at 35-36.

27. Id. at 36.
28. Abdullahi A. An-Na'im, A Modern Approach to Human Rights in Islam: Foundations
and Implications for Africa, in Human Rights and Development in Africa 75 (Claude E.
Welch, Jr. & Ronald I. Meltzer eds., 1984); Abdullahi A. An-Na'im, Religious Minorities
under Islamic Law and the Limits of Cultural Relativism, 9 Hum. Rts. Q. 1-18 (1987);
Abdullahi A. An-Na'im, Islam, Islamic Law and the Dilemma of Cultural Legitimacy for
Universal Human Rights, in Asian Perspectives on Human Rights 31 (Claude E. Welch &
Virginia A. Leary eds., 1990); Abdullahi A. An-Na'im, Problems of Universal Cultural
Legitimacy for Human Rights, in Human Rights in Africa: Cross Cultural Perspectives 331
(Abdullahi A. An-Na'im & Francis M. Deng eds., 1990); Abdullahi A. An-Na'im,
Toward a Cross-Cultural Approach to Defining International Standards of Human
Rights: The Meaning of Cruel, Inhuman, or Degrading Treatment or Punishment, in
Human Rights in Cross-Cultural Perspectives: A Quest for Consensus 19 (Abdullahi A. An
Na'im ed., 1992).
29. Mohammed Arkoun, The Concept of "Islamic Reformation," in Islamic Law Reform and
Human Rights: Challenges and Rejoinders 11-24 (Tore Lindholm & Kari Vogt eds., 1993).
30. Id. at 21-23.
31. Ann Elizabeth Mayer, A Critique of An-Na'im's Assessment of Islamic Criminal Justice,
in Islamic Law Reform and Human Rights: Challenges and Rejoinders 37-60 (Tore Lindholm &
Kari Vogteds., 1993).
authoritarianism.32 In reply, An-Na'im does not deny that the problem of

Islamic "fundamentalism" may arise from the politics of post-colonialism, but
continues to argue that the solution must be reformed Islam and not secular.33
Both Othman and An-Na'im seek to reconcile human rights and Islam
by re-interpreting Islam. Their projects are not quite the same, however.
Othman seeks to liberalize Islam, and is somewhat indifferent to interna
tional human rights law. An-Na'im, by contrast, seeks an Islamic foundation
for international human rights law. His project is therefore to Islamicize
human rights. An-Na'im is clearer than Othman in conceiving of human
rights as universal and as not privileging Muslims. Both reject the secular
approach to human rights, and both leave open the possibility that Islamic
human rights will turn out to be somewhat different from secular human
rights. In different ways, both seek to reconcile human rights to Islam
through an internal reform of Islam that does not recognize the priority of
human rights to fundamental religious beliefs.
III. THE CONCEPT OF UNIVERSALITY REVISITED
In view of this "internalist" challenge, it is useful to re-examine the claims of

human rights universalism. Jack Donnelly offers something like a paradig
matic analysis.34 "Human rights are the rights one has simply because one is
a human being."35 Consequently, they are held universally by all human
beings. They are "the highest moral rights," and "in ordinary circumstances
they take priority over other moral, legal, and political claims."36 Human
rights are universal also in the sense that "they are almost universally
accepted?at least in word, or as ideal standards."37 We can presume,
therefore, that human rights are universal, "although that presumption can
be overcome in particular circumstances by specific cultural arguments."38
32. Id. at 59; Arkoun, supra note 29, at 12.

33. Abdullahi A. An-Na'im, Islamic Foundations of Religious Human Rights, in Religious
Human Rights in Global Perspective: Religious Perspectives 337-60 (John Witte, Jr. & Johan D.
van der Vyver eds., 1996).
34. 5eejACK Donnelly, The Concept of Human Rights (1985); Donnelly, Universal Human Rights,
supra note 2; Jack Donnelly, The Social Construction of Human Rights, in Human Rights
in Global Politics (Tim Dunne & Nicholas J. Wheeler eds., 1999); Jack Donnelly, Human
Rights and Asian Values: A Defense of "Western" Universalism, in The East Asian
Challenge For Human Rights, supra note 8; Jack Donnelly, The Universal Declaration
Model of Human Rights: A Liberal Defense, 12 Hum. Rts. Working Papers, available at
www.du.edu/humanrights/workingpapers/papers/12-donnelly-02-01.pdf.
35. Donnelly, Universal Human Rights, supra note 2, at 1.
36. Id.
37. Id.
38. Id. at 122.
To overcome the presumption of universality, one would have to show that

a vision of human nature or society was both incompatible with universal
human rights and morally defensible.39
So-called non-Western conceptions of human rights are not concep
tions of human rights at all, but alternative conceptions of human dignity.40
All societies have conceptions of human dignity, but the concept of human
rights emerged only in the modern West, principally in response to the rise
of modern states and modern markets.41 Similar changes in virtually all
areas of the world have given human rights a nearly universal contemporary
applicability. Human rights require liberal or social-democratic regimes, but
variations in the details of implementation may be allowed, and even
required, in order to accommodate "valued cultural practices," provided
that these practices are not fundamentally incompatible with universal
human rights.42
Human rights, for Donnelly, arise from the inherent dignity of the
human being, and are needed for a life worthy of a human being.43 They
also arise from human action, and are not given to man by God or Nature.44
They represent a choice of a particular moral vision of human potentiality.45
"When human rights claims have brought legal and political practice into
line with their demands, they will have created the type of person posited in
that moral vision."46 Without the enjoyment of the objects of human rights,
Donnelly claims, one is almost certain to be alienated from one's moral
nature.47 Donnelly's conception of human rights is thus based on secular
humanism. In this, it conforms with most contemporary, Western, academic
moral and political philosophy, but it is question-begging in that it assumes
the inappropriateness of theocentric conceptions of human dignity and
human rights.
Donnelly admits that it is difficult to justify human rights philosophi
cally.48 This might be a serious defect in a theory of human rights, he admits,
if there were substantial disagreement about what human rights there
were.49 There is, fortunately, "a remarkable international normative consen
sus on the list of rights . . . based on a plausible and attractive theory of
39. Id. at 1, 9-12, 23, 122.

40. Id. at 2.
41. Id.
42. Id. at 3.
43. Id. at 17.
44. /cf. at 17.
45. Id.
46. /d. at 18.
47. Id. at 19.
48. /d at 21.
49. Id. at 23.
human nature."50 The verbal acceptance of this list by most states, he says,
is "a prima facie indication of the attractiveness of the underlying moral
vision."51
There are societies, Donnelly acknowledges, that seek to realize human
dignity without the concept of human rights, but these alternative concep
tions of human dignity amount to challenges to the idea of human rights.52
Muslims, for example, are required to treat others with respect and dignity,
but the basis for these injunctions are divine commands that establish only
duties, not human rights. The social and political precepts of Islam,
Donnelly acknowledges, reflect a strong concern for human good and
human dignity.53 Such a concern is a prerequisite for the concept of human
rights, but it is not equivalent to the recognition of human rights. To
"incorporate" non-Western understandings and practices with respect to
human rights would come "dangerously close" to destroying or denying
human rights "as they have been understood."54 Donnelly assumes, contrary
to the approaches of An-Na'im and Othman, that non-Western understand
ings are to be incorporated into the discourse of human rights rather than
vice versa, and that non-Western understandings would undermine the
concept of human rights.55
Donnelly has recently recognized that Muslims have developed Islamic
doctrines of human rights that are "strikingly similar in substance" to the
Universal Declaration.56 This appears to represent a shift in his position,
because he now implicitly acknowledges that Islamic conceptions of
human dignity include, not only the prerequisites for the concept of human
rights, but also the potential for developing it. This acknowledgment brings
Donnelly closer to An-Na'im and Othman.
Donnelly concedes that, in small traditional communities, many of the
values that are protected in the West by human rights are protected by other
means,57 and that the traditional conception of human dignity might be
superior to that of human rights liberalism. Perhaps most people would
prefer regulated, secure social roles with their concomitant sense of
belonging to autonomy and its attendant insecurities. He argues, however,
that in most places in the contemporary world modernization has separated
50. Id.
51. Id.
52. Id. at 50.
53. Id. at 51-52.
54. Id. at 58.
55. Id.
56. Donnelly, The Universal Declaration Model, supra note 34, at 9. See also Jack Donnelly,
Universal Human Rights, supra note 2, at 75.
individuals from the small, supportive community, and left them unpro
tected from assaults on their dignity by modern social, economic and
political institutions.58 In this situation, human rights are necessary to protect
human dignity.59 The needs of human dignity in developing countries today
are largely the same as they were in past centuries in the West. "In such
circumstances, human rights appear to be a natural response to changing
conditions, a logical and necessary evolution of the means to realize human
dignity."60 The claim that human rights appear to be a "necessary evolution"
seems inconsistent with Donnelly's belief that human rights represent "a
social choice of a particular moral vision of human potentiality."61 If
responses to the threats to human dignity posed by modernity are chosen,
then religious alternatives to human rights may be chosen, and cannot be
defeated by the appeal to modernity alone.
Donnelly defends human rights universalism against certain forms of
relativism. He sees "relativism" as "cultural," but does not address the
particular challenge of religion. Universal human rights standards, he says,
serve as a check on potential "excesses" of relativism.62 Nonetheless, certain
types of moral variation are justifiable on grounds of the goods of diversity,
self-determination, and tolerance. Human nature itself is partly a socio
cultural product, and consequently variable.63 The cultural variability of
human nature not only permits, but also requires, significant allowance for
cross-cultural variations in human rights.64
Donnelly argues that respect for autonomous moral communities
demands internal evaluations of their cultures, but, he says, to rely on
internal judgements alone "abrogates one's moral responsibilities as a
member of the cosmopolitan moral community."65 He associates these with
"the inherent universality of basic moral precepts, at least as we understand
morality in the West."66 "We simply do not believe," he maintains, "that our
moral precepts are for us and us alone."67 He then cites Kantian and other
deontological moral theories, utilitarianism, and human rights theories.
"Our moral precepts are our moral precepts. As such, they demand
obedience of us."68 At some point we must say that cultures that are not in
58. Id.
59. Id. at 60.
60. Id.
61. Id. at 17.
62. Id. at 109.
63. Id. at 111-12.
64. /d. at 112.
65. /d at 114.
66. Id. at 116.
67. /d. at 116.
68. /cf.
conformity with our precepts are wrong.69 Donnelly concedes that Western
morality is diverse, but does not acknowledge that the Western philosophies
that he cites have different implications for human rights.70 His argument
moves from a cosmopolitan affirmation of universality to a Western moral
rejection of incompatible moralities. This ends as a dogmatic affirmation of
the universal applicability of the Western conception of human rights that
provides little argument against either Western or non-Western opponents,
apart from the not entirely convincing claim that human rights are necessary
to protect human dignity under modern conditions.71
IV. THE RELIGIOUS POINT OF VIEW
Donnelly seeks to strike a balance between the universality of human rights

and the demands of culture, but, in his analysis, culture makes legitimate
demands primarily if it protects "human dignity." His conception of human
rights presupposes a philosophical anthropology, although he admits that it
is difficult to defend one convincingly.72 His solution to this problem is
twofold: first, he claims that different philosophies can support human
rights; and secondly, he appeals to the international consensus, although he
allows that consensus as such does not defend a moral position ad
equately.73 This approach would not refute arguments that either respect
human dignity without recognizing human rights or dispense with human
dignity. Some religions emphasize the sinfulness or degraded nature of
human beings. The point of some religions is not to protect human dignity,
which they may deem to be impossible or undesirable, but to save souls or
to unite with the cosmos. To such religions Donnelly can say only that our
values are our values, but this rather Rortyan approach seems to give up on
dialogue too quickly.74
Donnelly follows the UN in believing that a secular approach to human
rights is adequate, even necessary, in view of the world's diversity of
religious and philosophical beliefs. This assumes, however, that secularism
is neutral between these beliefs. This is precisely what some religious
believers dispute. Donnelly acknowledges that religions such as Islam
challenge the concept of human rights, but his principal response to this
69. Id.
70. Id.
71. Id.
72. Id. at 22-23.
73. Id. at 23-24.
74. See Richard Rorty, Human Rights, Rationality, and Sentimentality, in On Human Rights:
The Oxford Amnesty Lectures 1993 111-34 (Stephen Shute & Susan Hurley eds., 1993).
challenge is to claim that modern institutions threaten human dignity, and

that the concept of human rights is, at least in most circumstances, the best,
or the only, adequate protection against the threat.75 He does concede
occasionally that other cultures may sometimes do this better.76 But he does
not address the possibility that the appeal of religions such as Islam may be
precisely that they seem to their adherents to protect human dignity under
modern conditions, especially the modern condition of Western economic,
political, and cultural hegemony. Donnelly accepts these as either inevi
table or desirable.77 Dignity and consensus do most of the theoretical work
for Donnelly's human rights, but these leave human rights vulnerable to
those who believe, as he does sometimes, that dignity is better protected
with different cultural and institutional measures, and who dissent from the
international consensus on human rights.
Donnelly's appeal to consensus is vulnerable to an objection from the
point of view of Salvationist religions. If there is a conflict between
international human rights law and what a believer holds is necessary for
eternal salvation, it would be both irrational and impious to accord priority
to the law. It is true that international human rights law recognizes the right
to freedom of conscience and religion, but it is silent on conflicts between
religion and other human rights. The claims of conscience are, historically
and logically, stubborn obstacles to contradictory demands of universal
human rights.
Donnelly's claim that the concept of human rights emerged in the West
as a response to the modern state and modern capitalism suggests that the
concept has always been a secular solution to a set of secular problems.78
This is historically inaccurate. The concept of human rights emerged in the
West, to an important extent, as a religious response to a set of problems
that was both religious and political at a time when religion and politics
were inseparable. Gradually, the concept became secularized. The story of
the secularization of human rights in the West is an important part of an
informed dialogue between contemporary secularists and religious believ
ers about the universality of human rights.
75. Id. at 60.

76. Id. at 59.
77. Id. at 59-60.
78. Id. at 59-60, 104-6.
V. THE HIDDEN GOD IN HUMAN RIGHTS
Donnelly finds the roots of the Western approach to human rights in the
seventeenth century, particularly in England.79 He says that a fully developed,
liberal, natural-rights conception of politics had become well established in
English political debate by the time of John Locke's Two Treatises of
Government. He describes the Second Treatise as one of the standard
sources of the conventional conception of human rights.80 Donnelly refers
to Locke's two treatises, but moves swiftly to a reading only of the second
treatise.
Donnelly mentions, vaguely, the "brief introduction" of the Second
Treatise.^ This introduction, however, summarizes the argument of the First
Treatise, which is a critique of the biblical interpretation proposed by Sir
Robert Filmer.82 Locke disputed Filmer's interpretation of the Bible because,
while Filmer had used the Bible to defend absolute monarchy, Locke used
it to defend natural rights and limited government. By ignoring the First
Treatise, Donnelly suppresses the religious character of Locke's conception
of natural rights.
According to Donnelly, the Second Treatise begins by arguing that men
are naturally in a state of perfect freedom and equality, and that each person
has natural rights to freedom and equality.83 Locke actually wrote that men
were naturally in a state of perfect freedom to order their actions, and
dispose of their possessions and persons as they thought fit, "within the
bounds of the Law of Nature."84 This was also a state of equality, "there
being nothing more evident" than that creatures of the same species born to
the same advantages of nature should be equal without subordination,
"unless the Lord and Master of them all should, by any manifest declaration
of his will, set one above another, and confer on him by an evident and
clear appointment an undoubted right to dominion and sovereignty."85
Thus, Locke maintained that the natural freedom of men was bounded by
the Law of Nature, the source of which, in his philosophy, was God. He also
said that men were naturally equal, unless God had set one above another
"by any manifest declaration of his will."86 The Second Treatise, therefore,
79. Rorty, supra note 74, at 89.

80. Id.
81. Id.
82. John Locke, Two Treatises of Government 285-86 (1970).
84. Locke, Two Treaties, supra note 82, at 287.
85. Id.
86. Id.
set its theory of natural rights within a Christian, natural-law philosophical

framework.
Donnelly identifies paragraph seven of the Second Treatise as the start
of Locke's discussion of natural rights.87 This is correct, but again omits the
religious argument, which is clear from a passage in paragraph six. Here
Locke said that the state of nature had a law of nature to govern it "which
obliges everyone," and Reason, "which is that law," teaches all mankind
who will consult it that no-one ought to harm another in his life, health,
liberty, or possessions.88
For men being all the workmanship of one omnipotent and infinitely wise
maker, all the servants of one sovereign master, sent into the world by his order
and about his business, they are his property, whose workmanship they are,
made to last during his, not one another's pleasure.89
Paragraph seven then introduces the concept of "rights" by saying that, in

order to restrain all men from invading others' rights and to ensure that the
law of nature is observed, the execution of the law of nature is put into every
man's hands so that everyone has a right to punish transgressors of the law
to such a degree as may hinder its violation.90
We should note carefully the logic of this important moment in the
history of the Western theory of human rights. The argument begins, not
with rights, but with the obligation of everyone to obey the law of nature.
This obligation is not to harm the life, health, liberty, or possessions of
others. The ground of this obligation is that all men are the "workmanship"
of God, his servants, and his property, and are consequently "made to last"
during his pleasure. This obligation not to harm others, Locke assumed,
entailed the right of everyone not to be harmed. Locke introduced the
concept of rights almost casually in a discussion of God's purpose in
creating mankind, and the consequent obligations of men to God and to
each other. Since the Western origin of the concept of human rights is often
said to undermine its universality, it is noteworthy that this origin was
monotheistic, and may consequently provide common, cross-cultural ground
at least among monotheists. This provides a starting-point for a dialogue on
human rights with Muslims.
In discussing Locke's contribution to the Western conception of human
rights, Donnelly ignores Locke's theory of religious toleration that was
perhaps as important as his Second Treatise. Locke's arguments for religious
toleration were partly pragmatic and partly those of religious principle.

88. Locke, Two Treaties, supra note 82, at 289.
89. Id.
90. Id.
Pragmatically, he argued that toleration was more conducive to civil peace

than the attempt to suppress dissent. Christian principles recognized
nothing as more important than individual salvation. Religious conflict
created uncertainty, and the individual had to seek salvation amidst this
uncertainty. God had, however, endowed man with reason so that he could
discriminate truth from error, and thereby discover the path to salvation.
There were two reasons why each individual had to do this for himself. The
first was that religious duty was owed to God, and the commands of the
state might be incompatible with that duty. The second was that salvation
required sincere religious belief, and political coercion could produce only
outward conformity. Locke advocated freedom of conscience, therefore, not
from religious indifference, but from religious principle. The equality of
rights in Locke's political theory is based on the equality of religious duties.
Freedom of thought was necessary to acquire religious truth, which was in
turn necessary to fulfil one's religious duties. The Christian duty of religious
toleration (which Locke would not extend to Roman Catholics and atheists)
provided a ground of the individual right to freedom.91
The development of human rights in the West, therefore, had its origin,
not only in secular concerns with modern states and modern markets, but
also with the problem of religious obligation in a world of religious diversity
and political authoritarianism. This does not dissolve problems arising from
the relation between contemporary, secular, humanist conceptions of
human rights and religious challengers, but it does show that theocentric,
duty-based moralities have the potential to develop robust conceptions of
human rights. Thus, Donnelly's contrast between Western and non-Western
moral theories is somewhat overdrawn.
VI. THE SECULARIZATION OF NATURAL RIGHTS
The Lockean, theocentric conception of natural rights was weakened and

secularized in the following century in ways that were complex, gradual,
and incomplete. Intractable disputes about religious truth led some to
believe that God's will was beyond our understanding, and that morality
must therefore be secular. New Testament Christianity seemed to be the
religion of the poor and the powerless, whereas the Christian Church had
become associated with political power and wealth, and thus its legitimacy,
judged by Christian standards, was subject to doubt. The Christian claim to
91. John Locke, A Letter Concerning Toleration (1 794, 1997); John Dunn, The Political Thought
of John Locke: An Historical Account of the Argument of the "Two Treatises of Government"
(1969); John Marshall, John Locke: Resistance, Religion and Responsibility (1994).
the moral high ground was also called into question by the cruelty involved
in religious persecution.92
As official Christianity became epistemologically, politically, and mor
ally vulnerable, science and mathematics seemed to offer epistemic security
and liberation from superstition, dogma, and the oppression of priests and
rulers claiming divine legitimation. The attempts by the great philosophers
of the Enlightenment to reconcile Christianity and science in various ways
added philosophical to religious confusion, while society enjoyed the
practical benefits of scientific and technological progress. The discourse of
rights could still draw on Christian, natural-law sources for its legitimacy,
but increasingly its practical concerns were secular.93
In addition, increasing knowledge both of classical, Greco-Roman
civilization and of non-European cultures provided alternatives to Christian
ity. Machiavelli had already pioneered a "neo-pagan" political theory. In the
eighteenth century European intellectuals could look, not only back to
Greece and Rome but also outside Europe, for alternatives to Christian
politics. This turn of European thought would have mixed results for the idea
of universal human rights, as it opened the door to cultural relativism, and
thereby created the conditions for throwing the natural-rights baby out with
the Christian, universalist bathwater. Both neo-classicism and cultural
relativism were means to weakening the hegemony of Christianity, however,
and so religion increasingly became, not the source of truth, but the object
of scientific inquiry. The religion of society would, in the nineteenth century,
become the sociology of religion.94
The French Revolution did its best to wreck the remaining, tenuous
connection between religion and the Rights of Man that existed at the end
of the eighteenth century.95 The violence and disorder of the Revolution
discredited the concept of natural rights without rehabilitating religion. For
some critics the problems of the concept derived not from its "atheistical"
character, but from its supposed anti-social nature and its unscientific status.
The Revolution placed the question of social order at the top of the
intellectual agenda, and the answer was believed to lie in the field of social
92. Jonathan I. Israel, Radical Enlightenment: Philosophy and Making of Modernity 1650-1750
(2001); Richard H. Popkin, The History of Skepticism From Erasmus to Spinoza (1979); Jerome
b. schneewind, the invention of autonomy: a hlstory of modern moral philosophy (1998),'
John Charles Addison Gaskin, Hume's Philosophy of Religion (1978).
93. Freeman, supra note 2, at 22-26.
94. Id. at 26-31.
95. Thomas Paine wrote The Age of Reason to counter what he perceived to be the atheism
of the French Revolution. His own conception of the Rights of Man was based on
Quakerism and deism. See Mark Philip, Paine 94-113 (1989); Gregory Claeys, Thomas
Paine: Social and Political Thought 90-91 (1989).
science.96 Both religion and the Rights of Man were treated by social
science as ideologies, that is, belief systems that had social significance but
not truth value.
The nineteenth century witnessed the relentless progress of science and
technology in the West in the face of a defensive reaction by Christianity.
The rise of industrial capitalism produced workers and socialist movements
that claimed various economic, social and political rights. Although these
demands were sometimes given a Christian justification, these movements
were predominantly secular, and left behind the philosophy of natural law.
Although the socialist movement was highly moralistic, there was no clear
consensus on its philosophical basis. Forms of Kantianism and Utilitarian
ism jostled with non-philosophical practical demands, as well as ideas
drawn from post-Hegelian philosophy and scientific positivism. Many of
these ideas can be found in the thought of Karl Marx.97
By the end of the Second World War, religion still played a role in
public life in the Western democracies, but politics had become predomi
nantly pragmatic and secular. The United Nations was established with the
primary goal of preventing war. Its commitment to human rights was based
largely on a moral revulsion against Nazism,98 although it included the
economic and social rights that had been advocated by workers and
socialist movements. The language of human rights was the best available
for this purpose, since other philosophies of the time?such as Utilitarian
ism, scientific positivism, and existentialism?did not offer the same kind of
protection from governmental abuse. Politically, human rights were ex
pressed in secular terms in order to attract universal support. A proposal to
include a reference to God was made during the drafting of the Universal
Declaration, but rejected because it was not universally acceptable.99 The
Universal Declaration grounded human rights in the secularized, neo
Kantian formula of "the dignity and worth of the human person" rather than
on any particular religious doctrine. This formula is not itself very controver
sial, but its implications still are. Wars are not fought for and against the
dignity and worth of the human person, but they are fought over what
political practices and institutions this idea entails.100
96. Id.
97. Steven Lukes, Marxism and Morality 61-70 (1985); Alice Erh-Soon Tay, Marxism, Socialism
and Human Rights, in Human Rights 104-12 (Eugene Kamenka & Alice Erh-Soon Tay
eds., 1978); L.J. Macfarlane, Marxist Theory and Human Rights, 1 7 Gov't & Opposition
414-28 (1982).
98. See Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and
Intent (1999).
99. Id. at 284-90.
100. Id. at 281-328.
VII. CONTEMPORARY HUMAN RIGHTS THEORY
The most fundamental problem of contemporary human rights theory is

that, while the concept of human rights seems necessary to oppose abuses
of power, there is no consensus on its religious and philosophical foundations.
Donnelly maintains that the concept of human rights is socially
constructed.101 This provides no justification of the concept, however. He
also says that there is a global consensus on the concept. Consensus also
does not provide a justification, as he admits, and the extent of sincere
consensus is doubtful, as he also admits.102 Donnelly finally justifies humain
rights by claiming that they are necessary to defend human dignity under
modern conditions. Yet Donnelly concedes that human dignity can be
defended in societies that lack the concept of human rights, and must
consequently rely on the claim that the concept is necessary under modern
conditions.103 This is controversial, especially since Donnelly associates
human rights with Western secular liberalism. It is not likely to be
persuasive for those who approach the subject from a religious perspective.
Alan Gewirth maintains that human rights are derived from the
necessary conditions of human action. 4 In contrast with Donnelly, Gewirth
argues that human rights can be justified neither by inter-governmental
consensus nor by international human rights law.105 There are two reasons
for this. First, if human rights were justified only by such a consensus or by
this law, we would have to say that there were no human rights before this
consensus or this law existed, and this is inconsistent with the definition of
human rights as rights that all persons have insofar as they are human.
Second, normative theory addresses the question as to which human rights
international law ought to recognize, and the answer to this question must
consist of a moral argument and not an appeal to convention or law.106
Gewirth surveys several arguments for human rights that he considers to
be invalid. Human rights, for example, cannot be justified by appeal to
intuition or to their supposed self-evident truth, because intuition and "self
evidence" can support diverse values.107 They cannot be justified by
reference to their institutional basis, since that institutional basis itself
requires justification. No empirical features of human nature, such as basic
interests, can justify human rights, since moral conclusions cannot be

102. Id. at 23.
103. Id. at 60.
104. Alan Gewirth, Human Rights: Essays on Justification and Applications x (1982).
105. Id. at 41-42.
106. Id.
107. Id. at 44.
drawn from purely empirical premises.108 To appeal to the inherent dignity

of the human person, as the Universal Declaration and Donnelly do, is
question-begging as it assumes the validity of the principle that is to be
justified. Similarly, Gewirth argues that Rawls' contractarian argument is
circular in that its egalitarian conclusions are included in its premises.109
There are many philosophical and religious moralities in the world with
different, and often mutually inconsistent, contents. Nevertheless, Gewirth
claims, a "certain core meaning" may be elicited from these moralities.110
Gewirth defines a "morality" as a set of categorically obligatory require
ments for action that are addressed to every actual or prospective agent, and
that are intended to further the interests, especially the most important
interests, of persons other than the agent. The general subject matter of
morality consists of actions.m Certain objects are the proximate necessary
conditions of action. It follows logically, he argues, that all rational agents
must claim, at least implicitly, that they have rights to such objects. Every
agent must regard his or her purposes as good, and must regard as necessary
goods the proximate necessary conditions of his or her acting to achieve his
or her purposes. This is a logical not a descriptive claim. The necessary
conditions of action, on this account, are freedom and well-being.112
Freedom consists in controlling one's behavior by one's own unforced
choice with knowledge of the relevant circumstances. Well-being consists
in having the other general abilities and conditions required for agency.
Freedom and well-being are the generic features of action.113
From the claim that freedom and well-being are necessary goods it
follows, according to Gewirth, that agents have prudential rights to freedom
and well-being.114 Prudential rights are justified entitlements that entail
correlative duties. All agents must claim the prudential right to act so as to
achieve their goals and claim the obligation of others at least not to interfere
with such actions. Since agents must claim this right, qua agent, and not qua
some particular kind of agent, they must logically accept that all agents have
the generic rights. These generic rights are moral rights since they require of
all agents that they take favorable account of the most important interests of
all other agents. Since each agent has the same obligation to respect the
generic rights of all other agents, all agents are equal in generic rights. Since
all human beings are actual or prospective agents, the generic rights to
108. Id.
109. Gewirth, Human Rights, supra note 104, at 89.
110. Id. at 45.
111. Id. at 45-46.
112. Id. at 46-47
113. Id. at 45-48.
114. Gewirth, Human Rights, supra note 104, at 49.
freedom and well-being are human rights. Further, since all agents logically
must accept that they have rights to freedom and well-being, the having of
these rights is morally necessary.U5
Human rights are, therefore, grounded in reason so that they have a
normative necessity which transcends the variable contents of social
customs and positive laws. Since human rights can conflict with each other,
however, they are only prima facie rights. In cases of conflict, rights more
necessary to action have priority over those that are less necessary: the right
not to starve, for example, would "trump" the right not to be subject to
discrimination. Violations of human rights are justified only when they are
necessary to prevent more serious violations, rectify past violations or
comply with social rules that sustain human rights. The rights to freedom
and well-being entail such rights as those to political participation, to be
free from discrimination and to the resources, such as health and education,
that are necessary for action so far as possible.116
Gewirth differs strikingly from Donnelly in that he holds that human
rights are logical entailments of morality as such and not contingent social
constructions.117 His analysis is based on the claim that, notwithstanding the
diversity of moral philosophies and religions in the world, there is a "core
meaning" to all of them, and all require action and agency. Since, he argues,
freedom and well-being are necessary to agency, the rights to freedom and
well-being are universal human rights. Gewirth interprets "freedom" and
"well-being" to entail a set of rights very similar to those to be found in the
Universal Declaration. These rights therefore trump all beliefs, customs, and
laws that are inconsistent with them.118 All cultures that seem to lack the
concept of human rights must either have it implicitly or they are in a state
of logical and moral error. Like Donnelly, Gewirth believes that everyone
ought to be a liberal, social democrat, but Gewirth goes beyond Donnelly in
claiming that this is logically necessary. Gewirth does not address the
problem that those who hold illiberal moral beliefs, especially those who
believe that they are absolutely required to hold them by the ultimate source
of moral obligation (God), cannot, on pain of self-contradiction, be logically
required to hold moral beliefs that are inconsistent with their considered
convictions.119 If Gewirth insists that they can, he would violate his own
principle of respect for the religious freedom of others. Gewirth can avoid
115. Id. at 49-54, 68-69, 74-75.

116. Id. at 55-58.
117. Id. at 46.
118. Id. at 24-26.
119. Gewirth's exclusion of considered convictions from moral philosophy distinguishes his
theory from that of Rawls. See John Rawls, A Theory of Justice 20 (1972).
this self-contradiction only by employing his method of according priority

to the most important human rights.120
However, this move has two defects: 1) it probably does not offer a
clear solution to the problem; and 2) worse, it is question-begging, since it
assumes the correctness of Gewirth's theory. Gewirth's logic of action is
resolutely secular, and is inapplicable to the eternal life, in which it is not
certain that there is "action." Despite its dialectical ingenuity, therefore,
Gewirth's theory is an implausible solution to the problem of cultural
diversity.
VIII. EQUALITY AND TOLERATION IN INTERNATIONAL SOCIETY
Whereas Gewirth and Donnelly require religion to bring itself into line with
human rights, An-Na'im and Othman meet the requirement of Maritain that
human rights must be grounded in the various religions and philosophies of
the world rather than vice versa. Their Islamic conceptions of human rights
may, however, produce controversial versions of both Islam and human
rights. To the extent that they do, their attempt at reconciliation fails, but
there can be no guarantee that all conceptions of human rights will be
compatible with all religious beliefs.
The discourse of contemporary Western political philosophy is now
predominantly secular. The problem for human rights theory then is how to
construct a universal theory that recognizes the importance of diverse
religions in the world, but is not itself religious. John Rawls has attempted to
solve this problem from a Western, liberal perspective. His theory of justice
as fairness considers a political system to be fair if everyone would consider
it to be so when thinking about it impartially, that is, without giving priority
to their own interests.121 Gewirth criticizes Rawls for inferring egalitarian
conclusions from egalitarian premises, but Rawls' attempt to derive justice
from impartiality is similar to Gewirth's derivation of human rights from
prudential rights: both begin with self-interested individuals and go on to
derive conclusions about the rights and obligations of a society of such
individuals.122 Rawlsian contractors agree on the principles of justice
because they are supposed to decide on them while behind a "veil of
ignorance," where they know that they have interests, but do not know what
those interests are. Gewirthian logicians recognize that their own claims to
act for their own good entail the recognition of the same rights of others.
120. Gewirth, Human Rights, supra note 104, at 57-59.

121. Rawls, A Theory of Justice, supra note 119, at 136-37.
122. Gewirth, supra note 104, at 47; Id. at 142.
The theories of both Rawls and Gewirth are "secular" in the sense that they
are not derived from a religious doctrine and require the state to be neutral
among religious beliefs. Rawls emphasizes, however, that his theory is not
secular in the sense that it favors secular over religious beliefs.123
Rawls' theory has changed over time. In A Theory of Justice he was
concerned to show that citizens could develop a sense of justice that would
lead them to support the principles of justice.124 Later, he emphasizes the
fact that modern democratic societies contain a pluralism of incompatible
but reasonable comprehensive doctrines, such as religious faiths.125 This
pluralism is the normal outcome of human reason under free institutions.
Rawls differs strikingly from Gewirth on this point. Gewirth is a logical and
moral monist: he argues that all rational agents are logically committed to a
universal conception of human rights similar to that of the United Na
tions.126 Rawls holds that free reason leads different agents to different
religious, philosophical, and moral beliefs.127 Gewirth holds that all these
beliefs logically entail the same set of human rights. Rawls draws a more
limited inference from the fact of philosophical pluralism.128
Rawls addresses the problem of pluralism by distinguishing between
reasonable and unreasonable comprehensive doctrines. Comprehensive
doctrines are reasonable if they respect the principles of liberal democracy
and do not attempt to use state power to correct or punish those who live by
other reasonable doctrines.129 Liberal justice requires toleration of all
reasonable comprehensive doctrines, including those that are not liberal.
This requires a distinction between political liberalism and comprehensive
liberalism. Political liberalism requires respect for liberal principles in the
political institutions of society. Comprehensive liberalism is based on the
value of individual autonomy in all areas of life. However, this is only one
comprehensive doctrine among the many that will be found in a free
society. Political liberalism is neutral among different reasonable compre
hensive doctrines, and is therefore neutral between comprehensive liberal
ism and non-liberal comprehensive doctrines.130
Rawls extends his liberal conception of justice to the society of
peoples.131 This provides the principles of the foreign policies of reasonably
123. See Rawls, A Theory of Justice, supra note 119; Johns Rawls, Political Liberalism (1993).
124. Rawls, A Theory of Justice, supra note 119, at 567-77.
125. Rawls, Political Liberalism, supra note 123 at 36.
126. Gewirth, Human Rights, supra note 104, at 51-55.
127. Rawls, Political Liberalism, supra note 123 at 36.
128. See Id.; See Rawls, Political Liberalism, supra note 123, see also Gerwith, Human Rights,
supra note 104.
129. Id. at 60-61.
130. Rawls, Political Liberalism, supra note 123.
131. See John Rawls, The Law of Peoples (1999).
just, liberal peoples. As political liberalism recognizes the pluralism of

comprehensive doctrines within democratic societies, so the liberal law of
peoples recognizes the pluralism of comprehensive doctrines in the society
of peoples. In the theory of justice individuals are equal in the original
position, and they accord priority to equal liberty for individuals in the
political institutions of society. In the law of peoples, however, Rawls insists
that there must be a second original position in which the parties are not
equal individuals, but the representatives of equal peoples. The law of
peoples, therefore, recognizes the equality of peoples, but acknowledges
that there are "decent," non-liberal peoples that will not recognize the
liberal-democratic principle of equal citizenship.132
Liberals are required by Rawls to tolerate and respect non-liberal
peoples, provided that they are "decent." Non-liberal societies are decent if
their basic institutions meet certain conditions of political justice, including
respect for human rights. However, they do not accept the liberal idea that
persons have equal basic rights as citizens.133 They may, for example,
privilege a certain religion, and accord certain advantages to those who
subscribe to that religion. Such societies allow different voices to be heard
"appropriately in view of the religious and philosophical values of the
society." They must take the fundamental interests of all groups into
account, and Rawls suggests that the right to dissent in such societies would
lead at least to improvements in the rights of the members of historically
oppressed groups, such as women.134 Decent, non-liberal peoples are
"acceptable" as members in good standing in a reasonable society of
peoples. The liberal theory of the law of peoples does not prescribe
principles of justice for decent peoples, but works out the principles of
liberal foreign policy that are reasonable from a decent, non-liberal point of
view.135 Rawls and Gewirth are at odds here, since Rawls' conception of
decent, non-liberal peoples is a component of his ideal, liberal theory of the
law of peoples, and gives the supposed liberal principle of toleration of
peoples' priority over that of equality. Gewirth would require that the
principle of equal rights determined the proper limits of toleration.
Rawls argues that liberals ought to recognize societies that respect
human rights, but not equal rights, as members in good standing of the
society of peoples, on the basis of the liberal values of toleration, respect for
cultural difference and the right to self-determination.136 He concedes that
such societies are not fully just by liberal principles, but does not explain
132. Id.
133. Id. at 71.
134. Id. at 75.
135. Id.
136. Id. at 59-62.
why justice, which in A Theory of Justice he said was "the first virtue of
social institutions," should yield to these other principles.137 The claim that
human rights are liberal-democratic rights, he says, "expands" the class of
human rights. Rawls restricts the category of "human rights proper" to those
contained in Articles 3-18 of the Universal Declaration. He excludes
thereby the rights to freedom of expression, association, and participation in
government, as well as the prohibition on discrimination.138 He suggests that
some other articles presuppose specific kinds of institutions.139 This is an
unclear idea, because the human rights that he endorses, such as the right to
a fair trial, require appropriate institutions, though not specific institutions,
in the sense that they are compatible with considerable variation in
institutional forms. Yet Rawls excludes such rights as those to work, medical
care, education, and culture on the ground that they require specific
institutions, but, in this, they are no different from some of the rights that he
endorses: they require appropriate, but not uniform, institutions.140 Rawls
also insists that decent societies must respect the human rights of women.
This, he says, is not a peculiarly liberal idea but one that is common to all
decent peoples.141 Religion cannot justify the subjection of women because
basic human rights are involved. Rawls' opposition to the subjection of
women is, however, weakened by his refusal to endorse the human right not
to be subject to discrimination on the ground of gender.
Rawls emphasizes that the actual conditions of the world do not
determine the ideal conception of the society of peoples, so it is difficult to
see why he requires liberals to tolerate what he concedes to be less than
ideal justice. His claim that reasonable pluralism is the outcome of the
exercise of human reason under free institutions, and that his law of peoples
simply extends this idea to the society of peoples, ignores the fact that non
liberal peoples are not fully free. The law of peoples requires liberal peoples
to tolerate the political privileging of comprehensive doctrines, which is
intolerable in liberal societies. Rawls had argued that individuals in the first
original position would choose the principle of equal liberty of conscience,
and that they would wish to avoid "at almost any cost" the social conditions
that undermined the primary good of self-respect. In the second original
position, however, these principles are not guaranteed.142 In accepting as
"decent" societies in which the state enforces unequal human rights on the
basis of a comprehensive doctrine, Rawls is surely going beyond what is
137. Rawls, A Theory of Justice, supra note 119, at 3.

138. Rawls, The Law of Peoples, supra note 131, at 79-80.
139. Id.
140. Id.
141. Id. ai 75.
142. See Kok-Chor Tan, Toleration, Diversity, and Global Justice (2000).
recognizable as liberalism, and his account of human rights is certainly less

liberal, and more restrictive, than An-Na'im's Islamic account.
IX. CONCLUSIONS
The concept of human rights is a moral, political, and legal idea that
originated in Christian, natural-law philosophy, became secularized and
was revived by the United Nations to articulate its opposition to Fascism,
and to unite the world on a set of standards according to which govern
ments are required to treat all human beings decently. It has widespread
support in the contemporary world, but there is no agreement on its
philosophical basis. This paper has addressed problems that arise when the
principles of human rights come into conflict with religious principles to
which some people are deeply committed. There is what Rawls calls an
"overlapping consensus" between many religious beliefs and the principles
of human rights, but the consensus is not complete. Human rights theory
therefore has the task of reconciling religion and human rights so far as it is
possible.
Maritain argued that a concept of universal human rights would have to
be rooted in different religions and philosophies. This may be a pragmatic or
an epistemol?gica! argument. It may simply recognize the fact of pluralism
or it may hold that there is an irreducibly diverse set of justifying principles.
Gewirth argues that all these principles entail respect for a set of human
rights similar to those of the UN. This prima facie implausible argument
seems to be based on an illicit move from the claim that some minimal
levels of freedom and well-being are necessary conditions of action, and
therefore of moral action, according to any moral beliefs whatever, to the
wider and more controversial claim that a set of rights and institutions much
like those of Western liberal social democracy are logically required to be
universal. This has the paradoxical and implausible consequence that many
people are logically required to abandon their beliefs. This argument
concludes, implausibly, that a logically coherent set of non-liberal beliefs is
impossible, and it might have the empirical consequence of undermining
the capacity for moral action of those who hold such beliefs at least as much
as not having some of the rights that Gewirth holds to be universal.
Rawls says, plausibly, that diversity of comprehensive doctrines is
unavoidable. He also says, plausibly, that diversity of belief is the expected
outcome of human freedom. The apparent consensus on human rights
suppresses this diversity, or assumes too easily that it is compatible with
human rights. Given the Western roots of human rights, there will probably
be at least differences in the interpretation of human rights in different
cultural contexts. Rawls is wrong, however, to say that civic inequality is
consistent with human rights. There is now a very strong international

consensus that racial discrimination is intolerable. Rawls believes that "the
subjection of women" is undesirable. He argues, however, that discrimina
tion on grounds of religion may be acceptable. Rawls' liberalism is neutral
with respect to religious belief, and it is therefore difficult to understand why
he requires liberals to tolerate religious discrimination. He calls for
toleration of non-liberal societies because toleration is a liberal principle,
but, just for that reason, governmental discrimination on the ground of
religion must be unacceptable.
The diversity of the world's cultures makes mutual respect and harmony
among human beings and peoples difficult. From the point of view of one
culture, another culture may seem unattractive and/or immoral and/or
impious. Toleration is not always a virtue. It would be difficult now to
construct a recognizably moral argument that would require or permit the
toleration of genocide or racism. The Gewirthian and less controversial
theories of human rights provide a solution to the problem of the limits of
toleration: tolerate up to the point that you do not tolerate the violation of
human rights. The problem is that there is no culturally neutral interpreta
tion of human rights, if we cannot accept Gewirth's controversial, and pre
post-modernist claim that reason is supra-cultural. The concept of human
rights has a strong intuitive appeal to many people in many different
cultures insofar as it is designed to protect the most fundamental human
interests, honor human dignity and provide the basis of peace and mutual
respect among peoples. Yet scepticism about human rights is by no means
restricted to non-Western cultural resistance to perceived neo-imperialist
cultural practices. It exists at the heart of contemporary Western political
philosophy.143 It is not the task of human rights theory to determine ultimate
religious or philosophical truths, but to identify the rules that ought to
govern the relations among persons with different beliefs.144 History shows
both that reasonable persons can disagree on such rules and that many
people are not reasonable. We can fight or we can reason. Since fighting is
both intrinsically undesirable in normal conditions, and generally unsuited
to establishing correct principles, there seems little alternative in addressing
the problem of deep cultural differences about human rights, but to perform
the patient examination of conflicting ideas with as much skill and as little
prejudice as we can manage.
143. Onora O'Neill, A Question of Trust 18-19 (2002).

144. Peter Jones, Human Rights and Diverse Cultures: Continuity or Discontinuity?, in Human
Rights and Global Diversity 37 (Simon Caney & Peter Jones eds., 2001).

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The Problem of Secularism in Human Rights Theory

Author(s): Michael Freeman

The Problem of Secularism in

I. THE PRIORITY OF HUMAN RIGHTS

The United Nations' conception of human rights accords to its principles

* Michael Freeman is a Research Professor of Political Theory in the Department of

these questions have been thoroughly discussed in human rights theory.2

challenged by the recently developed concept of internal dialogue about

II. THE CHALLENGE OF INTERNAL DIALOGUE

The concept of "internal dialogue" does not challenge the universality of

and by providing historical contexts for the provisions of Islamic law

11. Othman, supra note 8, at 172.

18. Id. at 366.

such as the amputation of a thief's hand. These raise special difficulties, as

26. Id. at 35-36.

authoritarianism.32 In reply, An-Na'im does not deny that the problem of

III. THE CONCEPT OF UNIVERSALITY REVISITED

In view of this "internalist" challenge, it is useful to re-examine the claims of

32. Id. at 59; Arkoun, supra note 29, at 12.

To overcome the presumption of universality, one would have to show that

39. Id. at 1, 9-12, 23, 122.

IV. THE RELIGIOUS POINT OF VIEW

Donnelly seeks to strike a balance between the universality of human rights

challenge is to claim that modern institutions threaten human dignity, and

75. Id. at 60.

V. THE HIDDEN GOD IN HUMAN RIGHTS

79. Rorty, supra note 74, at 89.

set its theory of natural rights within a Christian, natural-law philosophical

Paragraph seven then introduces the concept of "rights" by saying that, in

87. Donnelly, Universal Human Rights, supra note 2, at 89.

Pragmatically, he argued that toleration was more conducive to civil peace

VI. THE SECULARIZATION OF NATURAL RIGHTS

The Lockean, theocentric conception of natural rights was weakened and

VII. CONTEMPORARY HUMAN RIGHTS THEORY

The most fundamental problem of contemporary human rights theory is

101. Donnelly, Universal Human Rights, supra note 2, at 17.

drawn from purely empirical premises.108 To appeal to the inherent dignity

115. Id. at 49-54, 68-69, 74-75.

this self-contradiction only by employing his method of according priority

VIII. EQUALITY AND TOLERATION IN INTERNATIONAL SOCIETY

120. Gewirth, Human Rights, supra note 104, at 57-59.

just, liberal peoples. As political liberalism recognizes the pluralism of

137. Rawls, A Theory of Justice, supra note 119, at 3.

recognizable as liberalism, and his account of human rights is certainly less

consistent with human rights. There is now a very strong international

143. Onora O'Neill, A Question of Trust 18-19 (2002).

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