Human Rights or Religious Rules? by J. A. van der Ven (Empirical Research in Religion and Human Rights: Brill) The relation between religion and human rights is a contested one, as they appear to compete with one another. Religion is often considered to represent a tradition of heteronomy and subordination in premodern times. Human rights emerged from early modern and modern times and stand for principles like human dignity, autonomy, equality. The first question in this book is how to define religion, its meaning, functions and structures, and how to study it. The second question is how to understand religion from its relation with human rights in such a way that justice is done to both religion and human rights. These questions are dealt with using a historical and systematic approach. The third question is what the impact of religion might be On attitudes towards human rights, i.e. human rights culture. For an answer, empirical research is reported among about woo students, Christians, Muslims, and nonreligious, at the end of secondary and the beginning of tertiary education in the Netherlands.
Johannes A. van der Ven, Ph.D. Radboud University Nijmegen
(Netherlands), Doctor honoris causa University of Lund (Sweden),
occupies the chair of comparative empirical science of religion,
especially in relation to religion and human rights, at Radboud
University Nijmegen. He is chair of the International Empirical
Research Program `Religion and Human Rights'.
He has written 15 books in Dutch, German, and English, among which Entwurf einer empirischen Theologie (1990) [Practical Theology: An Empirical Approach (1993)], Suffering: Why for God's Sake? (together with H. Vossen) (1995), Ecclesiology in Context (1996), Formation of the Moral Self (1998), God Reinvented? (1998), Education for Reflective Ministry (1998), Is There a God of Human Rights (together with J.S. Dreyer and H. J.C. Pieterse) (2.004). He has edited 18 books, and has published about 400 refereed articles in 10 languages.
Excerpt: The many problems facing society today often raise the question of where to find ideals, principles, values and norms to deal with them. It starts with marriage and the family: how do we promote equality between husband and wife? What ideals are worth passing on to our children and future generations? How do we strike a balance between protecting our private lives and the social tasks awaiting us in our neighbourhood, suburb, city and region? The latter already takes us from the micro level of emotional security in a small, intimate circle, to the meso level of social groups, communities and institutions. Here too there are umpteen questions. What values and norms protect society against disintegration and ensure an inspiring context that people would like to belong to and from which they derive their identity? Are they the rules of the economy? But which economy? The neo-liberal one or the Rhineland model, which interrelates economic and social life? Or do we use the rules of politics? But which politics? The bureaucratised politics of the state or the politics of a deliberative democracy, rooted in civil society? Do we apply the rules of education? But which education? One in which teachers act as producers and students are their products, or education aimed at human dignity, freedom, equality and solidarity? Are they the rules of the law? But which law? One in which one looks for loopholes to pursue personal profit, or what was traditionally known as 'just law'? Maybe the rules of sport. But which sport? Grinding, exploitive, exhausting sport, or sport aimed at joyous human re-creation? At the macro level of international relations such questions are even more pressing and also greater -- well-nigh infinite in their magnitude. I am writing this introduction in 2009, at a time when, starting in 2008, we find ourselves in a global financial, and, concomitantly, economic crisis, the outcome of blind, neo-liberal faith in 'the market'. The real victims are those at the underside of society, especially the millions of large and small groups of people in developing countries. The World Bank estimates that the world's poor that have to get by on less than two dollars a day has grown to one and a half billion as a result of the economic crisis. The Unesco report, A Matter of Magnitude: the Impact of the Economic Crisis on Women and Children in South Asia (June 2009), describes the situation in that part of the Asian continent which includes Afghanistan, Bangladesh, India, Nepal, Pakistan and Sri Lanka. Two thirds of the 20% of the world population that live there subsist on less than two dollars a day.
HUMAN RIGHTS AND RELIGION
On the basis of which values and norms should we tackle this overwhelming number of problems? In this book I deal with two approaches to this multitude of problems. The first is a human rights approach, the second a religious approach, which includes religious morality.
The first clear signs of the first - the human rights - approach are evident in the sharp protest by 16th century Spanish groups against the enslavement, exploitation and genocide of the indigenous American population, the Indians, and the fight for their rights. A few centuries later this culminated in the consolidation of these rights in institutions in which human rights were entrenched. The first of these institutions were the democratic constitutions of America and France in 1791.
The second - the religious - approach, including religious morality, is characteristic of all religions that since time immemorial have championed justice, solidarity and love and handed these values down from one generation to the next. Whether it is justice in the codex of Hammurabi, compassion in Asian religions, the duty to help widows, orphans, the poor and strangers in the Jewish Bible, universal solidarity and love in the Second Testament, or righteousness in the Qur'an -they all emphasise the moral duty to care for the indigent, needy other.
Nonreligious people opt for the first approach, that of human rights. They prefer direct, active, subjective rights that are rooted in the dignity of the human person in a democratic legal order in which the people are sovereign, and not an extramundane, sacred order with a divine sovereign at the top, represented, as they see it, by non-elected religious leaders that consider themselves entitled to dispense with any accountability to the people. They are also mistrustful of the moral claims of religions because of the way they easily tend to erase from their collective memory the many forms of bodily and mental violence, inquisition and genocide perpetrated in their name in the course of history.
Adherents of the various religions, on the other hand, tend to opt for the second approach, that of religious morality, not only because it is an extension of their religious beliefs, but also because they may have some objections to human rights. They are said to be products of Western individualism, centring on self-concern and personal profit, with little regard for social relations or commitment to the community. In addition, religious adherents are critical about the foundation of human rights in the absence of a divine order. Is the dignity of the human person not a shaky basis? Does a doctrine of human dignity allow for recognition of historical contingency, human fallibility and evil to be qualified as human guilt? Does it offer sufficient protection in times of disaster caused by dictatorships, wars and terrorism? Do we not need a higher, ultimately supreme, unshakable guarantee of order, justice, reconciliation and, ultimately, love: God?
Choosing between the two - the human rights approach or that of religion and religious morality - is not easy. On the one hand, it should be noted that the aforementioned groups who protested against the cruel treatment of the indigenous population at the time of the 'discovery' of America belonged to the Catholic Dominican order in Spain. And the groups that were a major influence on the foundational documents of America, such as the Virginia Bill of Rights of 1776 and the United States Bill of Rights of 1789, included English dissenters, especially Puritans, Congregationalists, Baptists, Anabaptists, Moravians and Methodists. On the other hand, the most fervent champions of religious freedom were people who had to a greater or lesser extent shaken off the power of religion. It was mainly these people who put an end to the ferocious, bloody, prolonged and constantly recurring religious wars by introducing the separation of church and state, which is an indispensable condition for human rights. And it was they who defended the freedom of religion and selflessly championed the oppressed, marginalised religious minorities in their struggle against the religious majority, who were usually entrenched behind the unassailable walls of a state religion or state church.
Against this background it should be clear why I chose Human Rights or Religious Rules? as the title for this book on human rights and religion, and why I appended a question mark to it. Is it in fact a choice, or can one find or build a bridge, whether wide or narrow, allowing some sort of traffic between the historically divided banks of human rights and religious morality?
The term 'human rights' in the title refers to what are known as the three generations, even though this term needs some qualifications: the first generation of civic liberties, political and judicial rights; the second generation of economic, social and cultural rights; and the third generation of collective rights, including the rights to development, a healthy environment, peace, co-ownership of the common heritage of humankind, and the right to communicate. One qualification is that the three generations represent a descending order of enforceable juridical rights and an ascending order of non-enforceable moral appeals.
The term 'religious rules' in the title has a long history of various meanings, from which I cite only one salient aspect. Here it is not used in the sense that it has been used for the past millennium and a half or more (!). Its initial meaning was broader than what Tertullian had in mind in the 3rd century. He confined religious rules (regula fidei) to rules that governed the dogmatic core of the faith. It also had a polemical connotation against religious monarchianism, which claimed that God was only one person, thus denying the trinity. In later ages, too, religious rules were confined to the dogmatic proprium of the faith, especially in the era of Catholic and Protestant confessionalism, when the controversy about the trinity made way for the dispute about the authority of Scripture versus that of tradition and ecclesiastic office. But prior to this dual restriction (to dogmatics and polemical dogmatics), hence pre-Tertullian, the original meaning of religious rules was far broader, all but holistic. Until the middle of the 2nd century, for example, the 'rules of our tradition' referred to the entire corpus of beliefs and practices that one finds in the works of Clement of Rome and others of that period. These are not purely dogmatic rules, but have various other aspects, such as spiritual, moral, disciplinary, sapiential and educational aspects, which in the practical, everyday lives of, one might say, all 'ordinary' believers, constitute a unity and can only be classified in distinct areas on closer analysis and reflection. The term 'religious rules' in the title of this book is used in this original, practical-holistic sense.
Indeed, as noted already, the choice between human rights and religious rules is not easy. The problem becomes even more acute if one does not confine oneself to the past but includes contemporary history as well. On the one hand, one faces the question whether religions genuinely engage with human rights or merely pay them lip service. Are they really moved by the problems of overpopulation, and, at the same time, the carnage that a pandemic like HIV/aids wreaks among the population? How do religious leaders justify the continued invocation of abstract principles like 'natural law' to oppose a concrete approach such as the common sense use of condoms? On the other hand one cannot deny that many religious groups at the grassroots devote great energy to the development of a human rights culture, which is essential for the active application of human rights in society. Without that culture, human rights degenerate into a beautiful but rapidly yellowing parchment in a museum showcase. But does it not suggest hypocrisy, one might add, that religions should vociferously advocate the application of these rights outside their own communities, but sometimes erect a divinely based barrier to their observance within their own walls?
These are the sort of complications explored in this book, not in the hope of solving them - that would be presumptuous - but to clarify them through patient historical, empirical and theoretical research.
To this end I confine myself to three themes, dealt with successively in the three parts of this book: religion and religions, religion and human rights, and religion and a human rights culture.
The first part is on religion and religions. It is an important theme, because in many publications on human rights religion not only gets a rough deal, but is often presented in a manner that almost fully identifies it with conservatism, even fundamentalism, or, worse still, terrorism. This part covers variations within religions and the various positions of religions in society: weak and strong, dwindling and growing, and the causes of these (chapter 1). In the midst of these diverse positions there is increasing interest these days, greater than in the past, in the religious identity of majority and minority groups. What is religious identity, what is the relation between continuity and discontinuity in that identity, and what hermeneutic and empirical aspects does it, have (chapter 2)? The study of religions in society should take into account its substantial attributes without reducing it to social and psychological phenomena, and should research it both from an empathic inside perspective and the outside perspective of observation. From the combination of both perspectives, the question of 'true religion' (religio vera) might be approached in terms of religious orthopraxis' in the perspective of human rights (chapter 3).
The conclusion thus reached leads as a matter of course to the second part on religion and human rights. Is the foundation of human rights religious or nonreligious, or does it require an open approach that can be filled from a variety of religious and nonreligious perspectives (chapter 4)? Can human rights be characterised as natural rights inferred from natural law (imbedded in the divine order), or should they be interpreted in terms of the political struggle that oppressed, marginalised groups have fought in the course of history, such as citizens and peasants under the feudal order, workers under the capitalist system, blacks under apartheid, women and homosexuals in the current age of repressive tolerance (chapter 5)? The relevance of human rights is particularly evident in the interaction between majority and minority groups. The majority can take care of itself, and does so in legislation, administration and jurisprudence. This gives rise to the challenging notion that when religious minorities want to deviate from a given social norm, the onus of proof is on the majority (i.e. the state), not on the minority. Does it mean that religious minorities must be able to claim distinctive religious rights, for instance Muslim minorities in the area of personal and family law (chapter 6)?
The key question in the third part is whether, and if so to what extent, human rights are accepted as indicative of the existence of a human rights culture among religious groups as well as nonreligious groups in particular countries, in this case the Netherlands. The part of the Dutch population investigated in the final chapters comprises three groups of Christian, Muslim and nonreligious youths, as will be indicated at the end of this introduction.
The first theme to be examined is religious freedom. Having traced its historical development from oppression via passive tolerance to active tolerance, and, eventually, religious freedom, I try to determine empirically whether, and if so to what extent, the three groups of youths subscribe to religious freedom (chapter 7).
Next I deal with the separation of church and state. First I look at the historical relationship between church and state - from theocracy to church and state union to an autonomous state and eventually separation of church and state. Then I empirically examine whether, and if so to what extent, the three groups of youths endorse this constitutional principle. I focus on two problems in the area where morality affects church and state directly, namely the res mixtae, in this case political autonomy in regard to euthanasia and abortion respectively (chapter 8).
Then I examine the empirical question whether, and if so to what extent, religion actually has a positive or negative impact on attitudes towards religious freedom and separation of church and state. This question is important in that the answer can shed light on the contribution of religions to a human rights culture. First, the three groups of youths' religious beliefs and their participation in religious rites are examined empirically. Then follows an empirical analysis of the effects of both beliefs and ritual participation on attitudes towards religious freedom and separation of church and state. Then I reflect on the research findings from the angle of differences between religious beliefs, making distinctions between non-morally laden and morally laden beliefs, and between beliefs relating to the culture of the religion and those relating to its structure. The first two (non-morally laden beliefs and beliefs relating to the culture of the religion) appear to have a slight, ambiguous effect. The second two (morally laden beliefs and beliefs relating to structure) have a rather strong, unambiguous effect on attitudes towards religious freedom and separation of church and state (chapter 9).
These findings relate to the question the title of this book contains: `Human Rights or Religious Rules?' To some extent religion may contribute to human rights, specifically to human rights culture, which means that in that regard the answer should not be formulated in terms of mutual exclusion but in terms of support: human rights may be supported by religious rules.
Finally, a comment on the three groups of youths I studied empirically: the Christian, Muslim, and nonreligious group. In the empirical study, for which the data were collected in 2007-2008, we chose youths in the Netherlands at the end of their secondary or the start of their tertiary education. The Christian youths represent the Christian culture that forms part of the cradle of Western civilisation in the Netherlands and plays an active role, at varying levels of intensity, in that culture. The Muslim youths represent a qualitatively significant, and in major cities a quantitatively significant minority in Dutch society, which has put the theme of religion high on the political agenda. The nonreligious youths represent the largest part of the Dutch population, which over the past 50 years - like the neighbouring populations of the Netherlands, Belgium and Germany, some Nordic and Baltic countries and other East European countries like the Czech Republic - has seen a drastic decline in religious faith and participation. The first group consisted of 340 Christians, the second of 235 Muslims, and the third of 479 nonreligious youths — together 1054 youths. The three groups are pertinent to a human rights culture, because in the near future they will be the leaders on the micro and meso levels of society. The (continued) support of human rights will largely depend on them.
Religious Legal Traditions, International Human Rights Law and Muslim States by Kamran Hashemi (Studies in Religion, Secular Beliefs and Human Rights: Martinus Nijhoff Publishers / Brill Academic) offers an exploration of aspects of the subject, Islam and Human Rights, which is the focus of considerable scholarship in recent years predominantly from Western scholars. Thus it is interesting and important to have the field addressed from a non-Western perspective and by an Iranian scholar. The study draws on Persian language literature that addresses both theological and legal dimensions of the theme. The work is also distinctive in that it tackles three areas that have been largely ignored in the literature. It undertakes a comparative study of the laws of several Muslim States with respect to religious freedom, minorities and the rights of the child. The study offers an optimistic vision of the fundamental compatibility of Islam and international human rights standards.
Excerpt: Developing an approach to a religious interpretation that can integrate legal traditions with universal human rights principles is a priority for the international community. This research undertakes a comparative study of the legislation and legal practices of Muslim states, in order to discern ways that the official application of specific areas of Muslim legal traditions may relate to the particular norms articulated in the Universal Declaration of Human Rights (UDHR),' and in subsequent human rights instruments.
Islam, with an age of fourteen centuries, and with more than one billion followers throughout the world, is, like all of the great religions, a diverse body of essential principles, moral values and worship, with spiritual, agnostic, ethical, theological and philosophical aspects running parallel to human elements, including history, civilization, culture, politics, law and related customs and traditions of different communities. Among the many different components of Islam, this study addresses only some specific parts of Muslim legal traditions relating to the three specific areas of apostasy (irtidad), protection of religious minorities (Dhimmah), and rights of the child.
Many theoretical visions of Islam and human rights presume both sides are rigid and fixed entities. This study, by contrast, provides a practical perspective on the flexibility of both, wherein Muslim legal traditions have been subject to different practices and modifications, while on the other side, "perspectives on human rights likewise change over times"!
This approach is more readily subject to localization of universal human rights principles within Muslim communities. It explores the elements presented historically in religious principles and traditions for the enrichment of human rights standards; as Lindholm states: "When the two normative systems, traditional Shariah and internationally codified human rights, do address the same subject matters we find significant areas of agreement."'
For the purpose of this study, Muslim legal traditions are divided into two categories. One category deals with personal law issues, including such matters as marriage, inheritance and custody of children. The other concerns public law issues, notably freedom of religion and expression, and penal law. This distinction is in line with the historical varying level of application of personal and public aspects of religious legal traditions by Muslims, or as Schacht states: "In terms of subject matter the hold of Shariah was and is strongest in the area of personal status (marriage, divorce, maintenance, matters of minors such as custody and guardianship, and inheritance), and weakest or non-existent in areas such as penal law, taxation, and constitutional law." Bielfieldt has a similar view:
While traditional Shariah norms continue to mark family structures all over the Islamic world, the Shariah criminal law is applied only in a few Islamic countries today.... The emphasis of the Shariah has always been much more on family matters than on criminal law. The portrayal of the Shariah as primarily consisting of a set of cruel punishments, as it is sometimes presented in Western media, therefore, is at least one-sided.'
Consistent with the historical trend of abandonment of public Muslim legal traditions, the study argues that this category of traditions, in comparison with personal Muslim legal traditions, is more capable of being ignored in practice when facing conflicting modern human rights standards.
This study is devoted to an analysis of the three above mentioned areas of Muslim legal traditions, i.e. irtidad, Dhimmah, and rights of the child, which will be studied separately in three parts of the book, A, B and C. In each part the relevant personal and public rules of Muslim legal traditions along with their connected human rights issues will be introduced first. Then the effects of religious legal traditions on legislation and legal practices of states in each area with regard to related human rights standards will be examined. Finally some comments will be set forth in the concluding remarks to each part for resolving the problematic features of the related issues.
The reason for selecting these three areas is that the legislation and legal practices of states in these subjects have been mainly ignored in the Islam and human rights discourse. For example there is an extensive amount of literature in this field on women's rights, but very little on the rights of the child.' Furthermore, as each of these three areas is composed of public and personal aspects of religious legal traditions, a comparison of the effects of the two categories in legislation and state legal practice is more feasible.
While the main sources of parts A and B of this study are the legislation and related reports on states legal practices, part C is mostly based on UN documentation related to the Convention on the Rights of the Child (CRC).' The issue of religious based reservations of Muslim states to the CRC will be examined in this part as well.
In searching for common approaches by Muslim states facing problematic religious legal traditions, this study argues that a distinction should be made between official references to Shariah and statutory laws affected by religious traditions on the one hand, and the effects of these traditions on the states legal practices on the other. The phenomenon of impracticality of some legislation affected by public Muslim legal traditions is another issue with regard to this argument. Finally the study introduces a new conception of Shariah which in fact is not necessarily a matter of law, but a reference to 'Islam.
There is a wealth of literature in English on the issue of Islam and human rights mainly focusing on its theoretical aspects.' Abdulahi An-Na'im is the leading scholar in this field and his major work is a theoretical study on public Muslim legal traditions.9 Among legal studies, the book written by Shaheen Sardar Ali on the situation of women in Pakistan, which examines both the theoretical and practical aspects of the issue, deserves special attention.' There are also some comparative studies whose main areas of focus are not necessarily legal aspects, among which the book written by Anne Elisabeth Mayer," who is one of the pioneers in the field. Her work is a political-legal study focusing on conflict between Muslim legal traditions and human rights.
This book is complimentary to other works that have been already conducted and it aims to address those areas of the debate which have been ignored in the previous literature. Along with its practical vision, the study has two other specific characteristics.
First, the project has been conducted within the scope of international law. Therefore, its focus is on the official application of religious legal traditions, rather than on those traditions that are applied by individuals. In this respect, special attention will be devoted to the ways Muslim states deal with their international commitments under the related human rights treaties. With regard to this issue, a secondary focus of the study is to what extent these commitments have pushed or encouraged Muslim states to abandon or modify problematic aspects of their legal traditions.
Second, this is the first comparative study on the effects of Muslim legal traditions that addresses the legislation and legal practices of related Muslim states with respect to irtidad, Dhimmah, and rights of the child. This comparison will also include differing official interpretations of Muslim legal traditions on the same issue, or differing solutions by Muslim states for the resolution of particularly problematic traditions. Through this approach, the study presents the successful polices of some states for the attention of others and furthermore sets forth appropriate commentary where applicable.
MUSLIM LEGAL TRADITIONS
The Prophet Muhammad was born in Mecca in 57o A.D. and in 610 A.D. received the first verses of the Koran. After ten years in Mecca he immigrated to Medina in 622, where he established the first Muslim community. The situation of Arabs before Islam is described by Mahmasani as follows: "The Arabs in jahilyah (the pre-Islamic era) lived a simple — almost primitive existence on their peninsula and the areas adjacent to it. Their society was a composite of disunited tribes with no central authority to bind them together in a coherent
whole."' Considering the Arab law in jahilyah, Schacht states:
The positive law of the ancient Arabs is decidedly profane, matter-of-fact, and informal; even their penal law is reduced to questions of compensation and payment.... The law of personal status and family, of inheritance, and criminal law were dominated, both among the Bedouins and among the sedentary population, by the ancient Arabian tribal system. This system implied the absence of legal protection for the individuals outside his tribe, the absence of a developed concept of criminal justice and the reduction of crimes to torts, the responsibility of the tribal group for the acts of its members, and therefore blood feuds, mitigated by the institution of blood-money.... The relations of sexes in pre-Islamic Arabia were characterized not so much by polygamy, which certainly existed, as by the frequency of divorce, loose unions, and promiscuity, which sometimes make it difficult to draw a line between marriage and prostitution. Slavery and concubinage with slave women were taken for granted. The absence of an organized political authority in Arab society, both Bedouin and sedentary, implied the absence of an organized judicial system."
The basic purpose of Islam and indeed of all religions according to the Koran is humanistic, ethical, moral and spiritual. Therefore, "[t]he primary reason for sending the prophets was to proclaim truths and lay down eternal values, not to make laws." Mohammad, however, in line with his mission, had to apply the eternal values in his message into the daily law and politics of Medina, where he, like Moses and unlike Jesus, faced new responsibilities as the ruler and legislator.
After the death of the Prophet, with the speedy expansion of Muslim territories, medieval scholars had to address the vast and variable legal requirements of the new Muslim territories. Muslim jurists had two sources available for accomplishing this task, the Koran and the Sunnah (sayings and deeds of the Prophet); both sources, however, provided mainly general guidance. Vessey-Fitzgerald states the Koran "is not and does not profess to be a code of law or even a law book, nor Muhammad a lawgiver in any Western sense:" This fact is evident in considering the number of verses of the Koran devoted to legal issues: "Out of 6666 verses of the Koran, about 50o have a legal element, the vast majority of which deal with worship rituals, leaving about 8o verses of legal subject matter in the strict sense of the term."" The development of Muslim law therefore was based on the endeavours of Muslim jurists through the exercise of legal reasoning (ijtihad) and using specific jurisdictional methods.
"With the expansion of Islam and its establishment within different cultures outside Arabia, about 50o schools of legal reasoning developed in the early years, but most of them disappeared and others merged by the beginning of the third century of Islam." From that time on, a consensus arose among Sunni scholars that all essential jurisprudential questions had been thoroughly discussed and finally settled. So, around the beginning of the tenth century A.D., mainstream Muslim jurisprudence formally recognized the finality of formulated legal opinion in the recognition of the four major schools of law, Hanafi, Maliki, Shafi'i and Hanbali. It was believed that no one could have attained the same level of knowledge as the early ulama (or scholars); therefore their formulations were final and binding and the gates of ijtihad for future generations were 'closed. This phase is called 'the closing of the door of ijtihad'. In fact from this time, which proceeded from the starting point of the decline of Muslim civilizations, Muslim law has not hac any measurable development.
Muslim law "was at the time of introduction no doubt a major step for. wards."" It entailed "a highly developed awareness of rights and obligations, combination of which enabled Islam to formulate a system which would see' to safeguard the rights of individuals to an extent which was not common it the legal thinking of many cultures and civilizations."' An-Na'im states:
In my view, by securing a relatively advanced degree of protection for the rights of women and non-Muslims, historical formulations of Shariah did provide for better protection of human rights than other normative systems in [the] past. For example from the very beginning, Shariah was understood to require an independent legal personality for the women, and the protection of certain minimum rights for them in inheritance and family relations, beyond what was possible under other major normative systems until the nineteenth century. Similarly, Shariah guarantees specific rights for the so-called People of the Book (mainly Christians and Jews), more than what had been provided for under other major normative systems in the past.'
Similarly, Ostrog points out:
Considered from the point of view of its logical structure, the system [Muslim law] is one of rare perfection. Those Eastern thinkers of the ninth century laid down on the basis of theology, the principle of the rights of Man, in those very terms, comprehending the rights of individual liberty, and inviolability of person and property, elaborated a law of war of which the humanist, chivalrous prescriptions would have put to the blush certain belligerents in the Great War; expounded a doctrine of toleration of non-Muslim creeds so liberal that our West had to wait a thousand years before seeing equivalent principles adopted.'
The subjects of Muslim law are divided into three categories; ibadat which means worship issues and address relations between God and man, such as the rules for praying, fasting and hajj pilgrimage; muamilat, which means transactions, mainly legal acts between individuals, such as marriage, divorce, custody and inheritance; finally siasiyat, which literally means politics, and addresses issues related to inter-state and state-individual relations, such as laws of war and penal law. It is important to note that "[t] he rules in none of these categories, even the worship rules, are mysterious ones, but they are all based on reason."" In this study muamilat and siasiyat are identified as personal and public Muslim legal traditions respectively.'
Finally, for the purpose of this study, when a reference to early (classical, historical or traditional) Muslim law is made, the terms 'Muslim law', 'Islamic law' or 'Muslim legal traditions' all have a similar meaning. The noun 'Islam' in this study, however, is reserved for when a reference is being made to the essential elements of the religion, as will be explained further. The study thus makes an intentional differentiation between 'Muslim' and 'Islam, with the former being used to indicate the generic concept, and to 'Muslim legal traditions' or 'Muslim law' rather than 'Islamic law. This is in order to distinguish between subordinate aspects of the religion and its essential elements. For the same purpose, because the term Shariah" for ordinary Muslims and some readers might imply 'Islam, this term is not used as a synonym for Muslim law, unless in quoted texts.
`Legal traditions' or 'religious legal traditions' are also more familiar terms for non-Muslim readers, because other religions and civilizations have such traditions as wel1. Furthermore, by using the term 'traditions' as will be discussed later, it is easier to remember that, when comparing Muslim legal traditions with modern human rights norms, the former date from before the tenth century, while the latter are the achievement of the last six decades of modernity and post-modernity; Bielfieldt states: "The emancipatory principle has been articulated only in the modern era. By comparison, the Islamic Shariah, the normative tradition commonly known as Islamic law, is much older."
DISTINCTION BETWEEN THE ESSENCE AND THE SUBORDINATES OF
ISLAM AND THEIR RELEVANCE TO HUMAN RIGHTS
The conflict between the immutability of Muslim law and the universality of human rights has been one of the main issues of debate in the Islam and human rights discourse. It seems that on both sides of the debate a distinction should be made between the essence and the subordinate, or in other words, between the principles and the legal standards that implement them. While the former is universal and immutable, the latter is variable and subject to change based on the relevant temporal and social context. This approach provides a more appropriate ground for a better understanding of the interaction of religion and human rights.
The concept of cultural relativism in human rights can also be defined based on this distinction, according to which different human rights standards should be considered for different times, cultures and social developments. This approach can also be named as localization of human rights principles; bringing heavenly ideals down to earth, a similar task as that performed by Muhammad when he tested the divine values of his message with the real life of Bedouin Arabs of Medina. Similar to other progressive ideals, when the Koranic divine principles were put into practice at the time of their emergence in underdeveloped Bedouin societies, they had to be limited and modified under the pressure of their historical and social contexts.
Shestack states: "[E] uman rights are a set of moral principles and their justification lies in the province of moral philosophy."' Thus the principles of religion and of human rights could both be considered as eternal and in no need of reconciliation; they need only to be identified. The major common principle between human rights and Islam, as well as other monotheist religions, is human dignity. Shestack states:
If one accepts the premise of the Old Testament that Adam was created in the 'image of God, this implies that the divine stamp gives human beings a high value of worth." In a similar vein the Koran says: 'Surely we have accorded dignity to the sons of man....In a religious context every human being is considered sacred. Accepting a universal common father gives rise to a common humanity, and from this flows a universality of certain rights. Because rights stem from a divine source, they are inalienable by mortal authority. This concept is found not only in the Judeo-Christian tradition, but also in Islam and other religions with a deistic base.'
According to McDougal, Lasswell, and Chen:
The contemporary image of man as capable of respecting himself and others, and of constructively participating in the shaping and sharing of all human dignity values, is the culmination of many different trends in thought, secular as well as religious, with origins extending far back into antiquity and coming down through the centuries with vast cultural and geographic reach.
By searching the Koran and Sunnah many scholars have tried to extract other divine principles of Islam relevant to human rights. According to Baderin:
Major moral principles that serve as basic postulates for the concept of human rights can be listed as "dignity (karamah), freedom (hurriyah), humaneness (insaniyah), equality (musawah), beneficence (ihsan), responsibility (masuliyyah), co-operation (ta'awun) and justice (adalah). [They] evolved, and were embodied in the general doctrine of Islamic theology, law and governance.'
Bassiouni has also referred to some relevant Islamic principles for human rights including "brotherhood, mercy and compassion."' In the same sense, Khadduri has listed the five principles of Islamic human rights as, "(1) dignity and brotherhood; (2) equality among members of the community, without distinction on the basis of race, colour or class; (3) respect for the honour, reputation and family of everyone; (4) the presumption of innocence; and (5) individual freedom.'
With regard to the essential elements of religion and human rights on the one hand, and their subordinate aspects on the other, the presumption of this study is that the main principles of religion and its moral foundation form an immutable core; similarly, on this plane, human rights principles could be considered eternal, unchanging or natural. All other aspects of religion and human rights, such as bans and ordinances of Muslim law and international and regional standards of human rights, are subordinate applications of this essence, and in this regard, respond to their social context and are subject to change.
The above mentioned presumption on mutability of Muslim law is based on the viewpoints of eminent Muslim scholars. Sardar Ali states: "Muslim scholars including Mohammad Arkoun, Abdullahi An-Na'im, Bassam Tibi and Riffat Hassan among others, have argued that any discussion of human rights in Islam must take into account the historical context within which the Shariah was constructed and applied by the early Muslims". In fact, "in keeping with the Koranic promise that 'God intends every facility for you; he does not want to put you to difficulties' the Islamic tradition appears capable of dealing flexibly with human needs and shortcomings. Such pragmatism also has shaped the Shariah from its very beginning.
It is not only the critical literature that argues for the influence of social contexts on Muslim law; such an argument was presented, for example, in an official document by Iran:
In the case of criminal offences, the blood-money was payable by the father or paternal relative, who was not, however, himself regarded as an offender. That system had its origins in the need to maintain ties between tribes in the era of the dawn of Islam. The system had proved effective in practice, but nevertheless was under review.
Coulson has a reference to the effects of social context in the time of the development of Muslim law in the early centuries of Islam: "It is also important to understand how early Muslims' interpretations of Islam were affected by their culture and in the social and political climates, even decades after the death of the Prophet for example, there were vast differences in the way the two early Islamic intellectual centres interpreted law.'
According to the Sudanese Muslim reformer, Ustadh Mahmud Muhammad Taha, "much of what had come to be regarded as timeless Shariah rules were actually legislation that had been intended only to guide the early Muslim community in Medina." In this sense, An-Na'im denies the divinity of Muslim law. He argues that, "Shariah is not the whole of Islam but instead is an interpretation of its fundamental sources as understood in a particular historical context."
Among Iranian scholars the viewpoints of Mohammad Mojtahed Shabestari command special attention. In his book 'Hermeneutics of the Book and Sunnah, he argues that according to the science of hermeneutics any interpretation of a text relies on personal knowledge and presumptions of the interpreter. These presumptions and personal knowledge are in fact the connecting linkages between the interpreter and the text. Religion, therefore, cannot be defined by a mere abstraction of a jurist or theologist as an interpreter of the text. In this sense there is no single text in religion that is not open to different interpretations. Shabestari further questions the assertion that God has a legislative function, as God only establishes values, not laws.
There is a phrase in Muslim jurisprudence that states, `ijtihad against the text is not allowed, which is similar to the phrase 'if something is expressed in the text, there is no room for implication (Expressum facit cessare taciturn)'. Shabestari in this regard argues that whatever exists in the Sunnah and the Koran (the text) is what was conceived as being best to provide for the benefit of the human being of that time, and not the best possible interpretation for all times. What was done by the Prophet and the Book shows only the direction. Muslims of each time should strive to remain in this direction.' Abdolkarim Sorush, another Iranian scholar, has a similar opinion:
It would seem that the social commands stipulated in religious law are temporary in nature unless proven otherwise.... the Prophet basically endorsed the rules and commands current at the time in Arab society and they became the measures of justice in their own day. And there is no reason why we should consider the regulations current at that time in Arab society as the best possible regulations for all times.
Sorush further refers to the humanitarian resources of the religion and reiterates the principle of humanity as a criterion for approving a law:
Mining the humanitarian resources of a religion is more important than ascertaining its privileged divinity. In fact, it is humanity's right to reject inhuman religions and even to contest their claim to true religiosity. Natural rights simply mean principles whose observance promotes a more humane, rational, secure, prosperous, and fulfilling life. Rational ends such as justice, order and welfare and deliverance from discrimination, strife, prejudice, fratricide, ignorance, hunger, and oppression are the result of the long historic experience of humanity and a matter of consensus among all reasonable people. It is not as though any of these principles could be set aside for the sake of some religious dogma."
To sum up, one might argue that 'the text' (the Koran and the Sunnah) are the source of principles, general guidance and examples. In fact, for Muslims, what is not allowed is not "ijtihad against the text, as understood in usual sense, but "ijtihad against the essential principles provided by the text.
MUSLIM STATES AND MUSLIM LEGAL TRADITIONS
The term Muslim states in this study refers to the fifty-seven member states of the Organization of Islamic Conference (OIC), with mostly predominant Muslim population. In the Constitutions, legislation and other legislative sources of Muslim states, there are different categories of references to Islam, Shariah and similar terms, each with a different purpose. The majority of Muslim states today have officially proclaimed Islam to be the state religion. Such a reference to Islam by itself bears no legal attribute, but is a reference to national identity.
There are other references to Islam, Shariah or similar terms, which display legal features. These references may address personal Muslim legal traditions, public Muslim legal traditions or have some other purpose. Before discussing these categories, it should be noted that while personal Muslim legal traditions and part of public Muslim legal traditions used to constitute the basic law of Muslim countries for more than twelve centuries, a trend of withdrawal from part of those traditions started in almost all Muslim countries from around the mid nineteenth century. It is worth adding that the reform of law in Muslim countries took place in two different phases, for public and personal aspects. An-Na'im states:
The first [reform] involved replacing Shariah with secular legislation in commercial, civil, constitutional, and penal matters. In most parts of the Muslim world, only family law and inheritance were left to the jurisdiction of Shariah. The second reform was undertaken in respect to the Shariah... as applied to family law and inheritance for Muslims.'
References Mainly Address Personal Muslim Legal Traditions First, Muslim Legal Traditions as a Source of Legislation
In the Constitutions of several Muslim countries, Islam, Shariah or similar terms are introduced as the main source of legislation.5' For example, according to Article 7(A) of the Constitution of Iraq, "Islam is the official religion of the state and is to be considered a source of legislation.'
Despite the indicated reform of Muslim law, personal Muslim legal traditions or Muslim family law, with some degree of modification, have remained in force in almost all Muslim countries. While in most non-Muslim states religious family law is incorporated in the state civil code, in the majority of Muslim states, family law still is considered as religious law. In these cases, Shariah as a source of law is something similar to religious law as a source of the civil code in secular states or as customary law in common law systems. Therefore, whether the existence of a linkage between legislation and Shariah or Islam is officially referred to by a state or not, the legislation of almost all Muslim states is more or less influenced by personal Muslim legal traditions.'
Second, Un-codified Muslim Legal Traditions as a Source of Jurisdiction
In the legislation of Afghanistan, Kuwait, Egypt Algeria and Iran,' Islam, Shariah or similar terms are introduced as a source of judgment. For example,
Article 1(2) of the Civil Code of Kuwait directs that, in the absence of a specific legislative provision, judges are to adjudicate according to custom (urf) and in the absence of an applicable principle of custom, be guided by the principles of Islamic jurisprudence (fiqh) most appropriate under the general and particular circumstances.
Similarly, according to Article 167 of the Constitution of Iran, in the absence of statutory law the judge has to "deliver his judgment on the basis of authoritative Islamic sources and authentic fatwa (rulings issued by qualified jurists)." Yet, while in Algeria and Kuwait un-codified Muslim legal traditions can be applied only for family law matters, in Iran and Egypt the authority of these un-codified traditions in practice has been extended to public law as well."
Third, Application of Muslim Legal Traditions by Shariah Courts
In a number of Muslim and non-Muslim states, Shariah courts are part of the judiciary.° Jurisdiction of Shariah courts in Muslim countries, with two exceptions, is in family law matters. The first exception is Saudi Arabia, where Shariah courts have general and residual jurisdiction, i.e. jurisdiction over any case or matter the jurisdiction over which has not been expressly assigned to another tribunal. The second is Malaysia, where the jurisdiction of Shariah courts is extended to religious offences as well, which is somehow deemed an issue of public law.'
Constitutional References That Address Personal Muslim Legal Traditions or the Legal System in General
There are some references in the Constitutions of Pakistan, Iran and Afghanistan, and in the Basic Law of Saudi Arabia, which introduce Islam, Shariah or similar terms as a criterion for approving the legislation. It is beyond the scope of this study to examine this issue in detail, but it is sufficient to note that two kinds of purposes are identified from the wordings of these references. First, with regard to Pakistan and Saudi Arabia, where references are made to the Koran and Sunnah, the legislation addresses mainly personal Muslim legal traditions to be considered as a criterion for family law matters. Article 2A of the Constitution of Pakistan requires all laws to be brought into consonance with the Koran and Sunnah. Similarly in Saudi Arabia, the Basic Law states that the administration of justice is based on "Shariah rules according to the teachings of the holy Koran, the Sunnah, and the regulations set by the ruler provided that they do not contradict the holy Koran and Sunnah".
Second, references to 'Islam' and 'Islamic criteria, which appear in the Constitutions of Iran and Afghanistan, are not necessarily a reference to legal aspects of the religion. These are in fact references to the religion as a whole or its divine principles. According to Article 3 of the Constitution of Afghanistan: "No law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan."
The reference to 'Islamic criteria' in Article 4 of the Constitution of Iran, similar to the above mentioned reference to Islam in the Constitution of Afghanistan, addresses the whole body of legislation. The article reads as follows: "All civil, criminal, financial, economic, administrative, cultural, military, political and other laws and regulations must be based on Islamic criteria. This principle applies generally to all articles of the Constitution, as well as to the other laws and regulations...."
`Islamic criteria' is a translation of the Persian term `mavazin-e eslamr. What is understood in Persian by this is that this term and similar terms do not have legal effect, but rather represent a reference to Islamic principles which form the eternal essence of the religion. Therefore, as this term reappears in other articles of the Constitution with regard to other activities of the state, one might conclude that the scope of the application of this term as a criterion not only applies to the judicial system, but extends to the whole activities of the state.
References that Address Public Muslim Legal Traditions
`Islamization of law' has been a political demand during the last three decades by some Muslim movements seeking the revival of Muslim law. As Muslim traditional personal law was never abandoned, this demand has focused on public aspects of the religious legal traditions. Also, with regard to the numerous aspects of public Muslim legal traditions, the only area which was regarded as Muslim law in need of revival was part of traditional penal code. In this sense, though Iran and Pakistan have incorporated part of this code in their legislation, in practice they have faced a number of difficulties.
Interestingly, with the exception of Pakistan, there is no term in the legislation of other Muslim states referring to islamization of legislation, or calling for the revival of public Muslim law. In Pakistan, Part IX of the Constitution is entitled 'Islamic provisions' and provides for the islamization of all existing laws, reiterating that no laws shall be enacted which are 'repugnant' to the injunctions of Islam.
Finally to sum up, considering the different levels of application of public and personal Muslim legal traditions, one might presume that any general reference to the temporary application of `Shariah' or Muslim law is in fact a reference to personal Muslim legal traditions or family law matters, unless a related area of Muslim legal traditions is explicitly pointed out.
The Right of the Child to Religious Freedom in International Law by Sylvie Langlaude (International Studies in Human Rights: Martinus Nijhoff Publishers / Brill Academic) The child's right to religious freedom in international law has never been considered in a comprehensive fashion, yet key issues include the prevention of indoctrination, religious clothing, the relationship of the child with parents and religious communities, and the duties of the state to the child. Building on a sociological analysis of religious children, a body of international legal materials is analysed against a theoretical model of what the child's right ought to be This book is the first attempt at analysing what international law says on the question, the result is a compelling analysis of the definitive position of international law on the child's right to religious freedom.
Excerpt: In the past few years there has been a renewed interest in religion, which includes the relationship between children and religion. In 2006/2007 in the United Kingdom alone, the courts considered the right of a Muslim girl to wear various forms of Islamic dress at school in two cases.' In France, as recently as 2004, a law prohibiting children in state schools from wearing clothing and insignia that conspicuously manifest a religious affiliation has generated heated debate.2 There is a backcloth of increasing religious conflicts, as illustrated by the 'war on terror', and the law on religious freedom is being increasingly discussed academically. However, this book does not seek to be a book on Islam and religious liberty, rather it is a book on the right of the child to religious freedom in international law. This study exposes to critical analysis the current law and aims to produce a definitive statement of what the child's right to religious freedom is. Children and religion is a topic of analysis and debate. Views differ greatly and include discussions on the nature of rights and the concept of childhood, the role of parents and religious communities, and the duties of the state to the child. Court cases in recent years have dealt with the right to education, the prevention of indoctrination, and the right to wear religious clothing, such as the Islamic headscarf. Other issues include the relationship between children's rights and parental rights, often over medical treatment, corporal punishment,3 and freedom to join or to leave a religion or religious community. Debates have arisen both at the domestic and the international levels. No answer has been found yet, although it is pressing. An analysis of the child's right to religious freedom in international law is therefore necessary and current.
There are a number of reasons for doing this work. First of all, the right to religious freedom is controversial and matters greatly to children, parents, religious communities and the state. The topic is complicated because it involves theories of rights and the contested concept of childhood. In addition, whereas the individual and the state are the two main actors in traditional international law, examination of the law in this area involves the child, the state, the parents and religious communities. Moreover, it is about religion, which forms the subject-matter of one of the most complex of human rights.
Secondly, a work of this nature and this scale has not been carried out before. Surprisingly, there is no complete analysis of the right of the child to religious freedom in international law, only smaller scale studies. The right of the child has been examined in relation to several international instruments, for example under Article 14 of the UN Convention on the Rights of the Child 1989, or Article 9 and Article 2 of Protocol 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. It has also been explored in domestic jurisdictions (such as France and Italy, or common law countries); or thematically (for example in relation to medical treatment). However, it has not been given general or comprehensive attention. Thirdly, there is currently no clear position in international law, which means that various agencies, bodies, courts and committees have no guidelines to resolve conflicts involving children and religion. This also has repercussions in domestic law, to the extent that international law is implemented through domestic law. Unless necessary, this book avoids gender-specific references to children, who are not referred to as 'he or she' or 'him or her', but as 'they'.
The scope of this book is a study of international law at the United Nations and European levels. There is not very much relevant material from other regional instruments such as the Organization for Security and Co-operation in Europe, or in respect of Africa or America, and most studies on religious freedom focus on the United Nations and Europe. In addition, this book only deals with religious freedom as a human right. It does not consider other approaches, such as the rights of minorities or indigenous groups, or other aspects such as equality or non-discrimination. These areas are less developed in relation to children and religion, and there is less relevant material. Moreover, these angles are largely dependent on the substantive questions discussed in the context of religious freedom, and the right of the child to religious freedom is not typically addressed from these perspectives. These other possibilities would be interesting, but they would obscure the religious freedom aspect and the focus of the study on the child.
Chapter 1 is a sociological examination of what it means for a child to be religious. It argues that children have a religious dimension that the law should not ignore, which is confirmed by studies on the psychology, spirituality and sociology of religious children, and by religions themselves. Chapter 2 creates a theoretical model of the right of the child to religious freedom. It argues that the interest theory is the best theoretical account of the right. The interest of the child is to be nurtured and to have a relationship with parents and religious communities. This means that the right of the child to religious freedom is the right of every child to be unhindered in their growth as an autonomous religious being in the matrix of parents, religious community and society.
International law cannot be analysed on its own; it needs a framework of reference. Therefore, a body of international legal materials is evaluated against this theoretical model. Chapter 3 considers the work of the Human Rights Committee under Article 18 of the International Covenant on Civil and Political Rights 1966. Chapter 4 considers the work of the UN Committee on the Rights of the Child under Article 14 of the UN Convention on the Rights of the Child. Chapter 5 considers the work of the Special Rapporteur on Freedom of Religion and Belief under the UN Declaration on the Elimination of All Foams of Intolerance and Discrimination Based on Religion or Belief 1981. Chapter 6 considers the work of the Strasbourg organs under the European Convention on Human Rights. The concluding chapter pulls this body of international law together. It analyses whether international law matches up with the theoretical model of the child's right to religious freedom established in chapter 2. It argues that the theoretical model in chapter 2 provides a good explanation of the international legal materials and also provides a more satisfactory statement of the right of the child. It finishes by providing a definitive statement of the child's right to religious freedom in international law and attempts to provide some answers to tensions involving children and religion.
These different studies point to the same evidence, the fact that it matters for children to be religious. The reality is that children are not 'religious' on their own but are socialised and nurtured into a religious faith, in connection to their family and religious community. The sociological literature has some shortcomings, however, because it is not really concerned with children: this is shown by the small amount of research on children and religion. Still, the few instances that have been covered all point to the socialisation of children within a religious faith. However, Aldridge points out that fewer and fewer of the faithful feel an obligation to pass on their faith to their children and instead believe that children should make up their own minds without undue pressure from their parents. Accordingly, 'the transmission of religion from generation to generation is [...] becoming far more open and fluid'.
The main components of religiosity are believing, acting and belonging: to believe a number of religious beliefs, to act upon one's faith, or simply to be born into a family from a particular religious tradition. There are a number of common elements amongst these religious traditions. In particular, almost all traditions include informal nurturing within the family and slightly more formal nurturing within a religious community. If a child is brought up within a religious family and the parents pass on their beliefs to the child, the child learns about the religion through living in the family and observing their parents. Children are also initiated by their parents to a number of initiation rituals and to ceremonies and festivals. Parents also bring their child to religious services, usually in a building dedicated to that usage, although there are some exceptions. The religious community itself plays an important role. In addition to formal services, there are a number of groups outside school hours, initiation rituals and ceremonies which take place within, and are performed by, the community itself. Some religions emphasise more formal religious education, where religious beliefs are transmitted. Most religions also emphasise prayer arid worship, and some focus on a number of regulative principles such as food diets and dress codes. Other religions, especially non-European ones, are linked by a common language. For other communities, the mere fact of being born in a particular family is enough to be a member.
Religious traditions accentuate different elements. For Christianity, there is more emphasis on believing religious creeds, there are some regulative principles, and, for certain Christian traditions, being born Christian is an important dimension. In Islam, being born in a Muslim family is an essential identity component. Generally, prominence is given to religious beliefs and to regulative principles and practices. Hinduism and Sikhism stress being born Hindu or Sikh, and religious practices in the family and the community. Non-traditional religions and NRMs emphasise religious creeds and religious practices and ceremonies. In addition, a number of religions, but not all, accept or recognise that children change when they come of age and that some leave the community, choose to have looser ties or abandon a number of religious practices.
Studies on a number of religious communities highlight the nurturing of children, whether at home or in more formal settings, and religious communities and parents are concerned about 'passing on' the faith and beliefs to children. Religious communities are not just an abstract concept of religious people interacting together, but are characterised in a more tangible sense by beliefs, teachings, values, practices and rituals. These communities include both adults and children. Children are significant for religious communities, who care about how children are treated. Hence, it makes sense to say that religious children belong to a matrix including parents and religious community, although it is important to add the societal element when the child comes of age.
To start with, it is worth reiterating the theoretical model of the right of the child to religious freedom put forward by chapter 2. The legal right of the child to religious freedom is the right of every child to be unhindered in their growth as an independent autonomous actor in the matrix of parents, religious community and society. The state is the holder of duties in international law, and parents and religious communities are important third parties. The issue of autonomy is separate from the right of the child, who has a right to religious freedom without necessarily having powers of enforcement or waiver over it. However, the right of the child must reflect that the child comes of age at some point. Finally, the right of the child is composed of both negative and positive rights against the state. The child has a negative right that the state should not interfere in the relationship between child, parents and religious community, and the child has positive rights to protection, procedures and substantive benefits.
A number of conflicts involving children and religion have arisen in international law. These include the transmission of religious beliefs from parents to children; parental rights in education; the choice by the child of their religion; religious education and issues of age-limits, exemptions and choice; education in tolerance; ceremonies, religious practices, and initiation rituals; the coercion of children and the meaning of coercion; forced attendance at religious services; forced conversions, including the denial of benefits; restrictions on freedom of worship; conscientious objection for religious reasons to 'neutral' acts; the legal identity and status of the child; and the imposition of neutrality by the state on parents and children in the education of children. At the same time, a number of potential conflicts involving children and religion have not arisen as yet in international law. These include providing specific food or prayer rooms at school; the refusal of medical treatment; adoption and care-matching practices; and proselytism by the child. These conflicts and tensions have been approached by international law in a number of ways. On the whole, the body of international law sometimes, but not generally, reflects the theoretical model of the right of the child to religious freedom, yet we have seen that there are differences between the four bodies/committees/court and inconsistencies with the theoretical model. A number of views have emerged. Sometimes, international law does partly reflect the theoretical model. According to one view that has emerged in international law, children are not 'agents' and all conflicts involving children and religion can be seen through the lens of other actors such as parents. According to another view, children are the most important agents and there is a substantial emphasis on autonomy.
First of all, it is possible to provide a restatement of the scope of the right of the child to religious freedom in international law.
Article 18 of the International Covenant on Civil and Political Rights (ICCPR) is the general provision on religious freedom in the UN system. Everyone is included and this covers children too. However, because of the working methods of the Human Rights Committee (the HRC), its work through communications, and the reporting system, Article 18 is difficult to apply directly to children.
The HRC has not said very much about children. It suggested that children under the age of 16 should be able to choose their religion, and it said that parents should not be obliged by law to bring their children up in one particular religion. It referred to the right of pupils to wear the Islamic headscarf or Rastafarian dreadlocks at school, and added that singing the national anthem or saluting the national flag should not be compulsory. Children also have a right to have a school system free from bias and intolerance. Pupils who are exempted from religious education should not be made to feel excluded, and they must not have to disclose their religion in order to opt out of denominational instructional classes. These are the only references to children in the whole of the HRC's analysis, and it is not possible to get a consistent picture of the HRC on children and religion.
Secondly, a number of problems would emerge if the HRC's approach were directly applied to children. In particular, there is too much emphasis on freedom of choice, too much focus on the individual religious believer, the approach to restrictions is fairly limited, the focus of education is almost exclusively on parents, and there is little on positive rights.
Thirdly, if the HRC had more cases concerning children, at times it might recognise the child dimension of the cases, and at other times it might not. There are instances where the HRC might accept the claims of a child against the state, and might accept the claim of a child who has come of age (for example in relation to freedom of choice, protection against third parties, freedom of manifestation, or religious education classes) and this would be acceptable. There are other instances where the HRC might focus on the wrong actors. For example, the HRC is often likely to hide behind parental rights if a young child makes a claim against the state (for example, in relation to state coercion, or the right of the child to be brought up in their parents' religion, of freedom of manifestation). However, this means that the HRC might miss the child dimension of the case and forget that a young child may have rights against the state. In particular, taking the wrong approach is more likely to lead to the wrong substantive decision. There are other instances too where the HRC might accept the claim of a young child against their parents (for example, in relation to freedom of choice), which would not be acceptable and the HRC might miss the child dimension of the cases. In conclusion then, it is very difficult to predict how the HRC might react if it had more cases concerning children. However, in the light of what we know of the HRC's approach, there are instances where the HRC might take the child dimension of the cases into account, and other instances where it might not, especially because it might focus on the wrong actors.
The approach of the HRC to children is mixed, and it does not always match up with the theoretical model. In a way, children have a place and exist as agents, although there is little on the independent right of the child to religious freedom. It does reflect parental rights in education, which is appropriate. Also, there is a risk that it insists too much on the autonomy of children. The HRC reflects the duty of non-interference by the state, but there is little on positive rights.
Article 14 of the United Nations Convention on the Rights of the Child (UNCRC) is specific to children and religion in the UN system. The Committee on the Rights of the Child (the Committee) considers a variety of issues, including freedom of choice, freedom of manifestation and education. However, four problems in the interpretation of the right by the Committee mean that the approach of the Committee to children and religion is inappropriate. First, the principle guiding the interpretation of Article 14 should be the evolving capacities of the child. This is acceptable in itself, as it reflects the fact that the child comes of age at some point. However, this is not reflected in the practice. In particular, there are some underlying tensions in the work of the Committee, and it is incoherent in its handling of these guiding principles. In particular, the Committee has interpreted the concept of autonomy far too broadly, for example, by constantly expanding the application of the principle. It has applied it to its analysis of Article 14. The Committee has applied this to freedom of choice, and stated that it is a right for all children, without distinction, and the concept of evolving capacities is expandable. The Committee also applies this to freedom of manifestation in an open-ended fashion, for example, by applying it to very young children without necessarily linking it to family and religious community. In the same way, the Committee is far too vague on the issue of the evolving capacities of the child and taking their views into account as regards religious education.
Secondly, the Committee has a tendency to treat the child as an autonomous religious believer. There are only tenuous links with family and religious community, and too much intervention within the family in order to 'protect' the child. In addition, the Committee creates a set of rights of the child against the family. The Committee also suggests that freedom of manifestation may be implemented against the family. In the same way, rights in education also seem to be applicable against parents. Most of the analysis of the Committee is about children making their own individual choices, and there is considerable emphasis on autonomy and rationality. It is also a problem that the family is bound by human rights standards, and that children have rights against their parents even before coming of age.
Thirdly, the Committee has an impoverished understanding of religion. For example, it is implicit in its analysis that being religious may be negative for children and insists very much that the child must be able to leave a religion. This can also be seen through its statements on the aims of education, tolerance, non-discrimination and pluralism. This puts religions in a negative light, and it may tend to excessive intervention in the child's and the parents' beliefs.
Fourthly, the Committee is not always coherent and at times it has missed the opportunity to develop a consistent analysis of the right of the child to religious freedom. For example, it could be argued that it has missed the opportunity to raise issues, which means that there is no consistent analysis of the substance of the right. In addition, there is not always a clear understanding of who the relevant duty-holders are.
The approach of the Committee is not appropriate, and these four factors do not reflect the theoretical model of the right of the child to religious freedom in chapter 2. The answer to children and religion that emerges is lost to the autonomy viewpoint. At the very least, the Committee emphasises the independent right of the child to religious freedom, yet there is too much emphasis on autonomy and freedom of choice. At times, the Committee reflects the duty of the state not to interfere with the right of the child, yet there is little on positive rights. Finally, the Committee does not usually reflect the relationship between child, parents and religious community, but treats children as small adults and as autonomous individual believers.
The Special Rapporteur on Freedom of Religion and Belief is another UN agent that considers children and religion. The approach of this agent is different from the ICCPR and the UNCRC, because the role of the Special Rapporteurs (three individuals to date) is to investigate, comment and advise upon the manner in which states adhere to the standards set out in the United Nations Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief 1981. There have been three different approaches to the mandate. On the whole, the approach of the Special Rapporteurs is welcome because it is a balanced position, centred on parental rights in education and the child as member of a religious community. The state must not prohibit a child under the age of 18 from joining a religious community, and it is also suggested that the child can choose their religion when they are capable of doing so on their own (which still begs the question of who decides this). In addition, all Rapporteurs emphasise parental rights in education, and parents have a right against the state to bring up their children in accordance with their own convictions. There is a strong emphasis on education in the work of the Special Rapporteurs. Parental rights in education must be respected, and exemptions must be possible. In addition, Special Rapporteur Amor stresses education in tolerance and non-discrimination. The Rapporteurs also highlight the prevention of discrimination against children in education, especially as members of religious minorities or communities. They are clear on the prohibition of forced conversions, linked to forced marriage, abduction, threat and denial or withdrawal of public services, circumcision and change of name. The persecution of religious believers is also condemned, although the persecution of children is incidental to that of other believers. Finally, when dealing with religious practices, the Rapporteurs emphasise the circumcision of male infants, days of rest, baptisms, dress codes, prayers, religious pictures, and haircuts, seen from the perspective of belonging to a religious community or religious minority. However, there are two problems with the Rapporteurs' approach, Amor's view on education (which may have negative repercussions on parental rights) and the fact that there is little for children who come of age. Children are hardly ever considered in their own right and they are usually considered as part of the larger community to which they belong, whether family, religious community or religious minority. It is true that this does not really reflect the fact that children come of age at some point; however, the Rapporteurs are likely to accept most claims of children who have come of age.
On the whole, the Rapporteurs' approach to children and religion is welcome, and it reflects quite well the theoretical model of the right of the child to religious freedom in chapter 2. Although children are usually considered as part of a group, and the independent right of the child to religious freedom is not always reflected, there are signs that the Rapporteurs might reflect it in the future, if given the opportunity. However, although the Rapporteurs have dealt with negative rights to noninterference, there is little on the right of the child to positive acts by the state.
Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is the general provision on religious freedom in the Convention system. Article 9 applies to 'everyone', including children. The approach of the European Court of Human Rights (the Court) is not satisfactory because it usually fails to take the child dimension of the cases into account. The Court has an understanding of religion and belief that is tailored to an adult set of beliefs, it ignores children when they are applicants, and silences them when they are directly or incidentally affected. If the Court has more cases concerning children in the future, we can have little confidence that it will take the child dimension of the cases into account. Regarding freedom of choice, the Court has only had the opportunity to address cases brought by children through education and custody. In all these cases involving children, they had important rights and interests, yet the Court ignored them. It misunderstands the meaning of coercion in education, and does not address the right of children to be brought into a religious tradition. The Court suggests that children should not hear about a religion before a certain age, which may be dangerous if it is a right held by children against their parents. Regarding freedom of manifestation, the Court ignores the child dimension of the cases by not dealing properly with the claims brought by children. When children are affected by someone else's manifestation of religion, the Court ignores the child dimension of the cases by silencing their rights and interests. On the whole, the Court fails to do children justice in relation to their religion: it does not really reflect the independent right of the child to religious freedom and it does not reflect either the relationship between child, parents and religious community.
In the future, if it has more cases concerning children, the Court is likely to fail to do children justice. For example, it is likely to dismiss the claim of a child against the state that it has restricted their freedom to wear religious clothing at school, and it is likely to restrict the proselytising activities of the child. It may also step in regarding a claim of the child that they want to discontinue a number of religious practices, and it might step in regarding issues such as medical treatment. In addition, it is likely to accept a state-imposed policy of 'neutrality' of education on schools and parents, which would not be defensible. However, it may accept the claim against the parents of a child who has come of age regarding freedom of choice and freedom to withdraw from religious education. It is likely to accept claims brought by children regarding forced conversions, and this would be defensible.
The Court does not always reflect the theoretical model, and it certainly fails to do children justice in their relationship with parents and religious community. The Court fails to take account of their rights, and it sometimes steps in to consider what it thinks is in children's best interests.
We have just reiterated the current body of international law on children and religion. We saw that the four bodies sometimes, but not generally, reflect the theoretical model of the right of the child. Despite this, and despite the fact that there are differences of approaches amongst these bodies, the theoretical model is more attractive than other views. It is attractive because it expresses the international legal materials better, and because it provides a plausible and complete statement of the right of the child to religious freedom.
The theoretical model in chapter 2 provides a good explanation of the international legal materials. In general, the four bodies adopt a balanced position regarding the position of children: children 'exist' in law, and not everything is seen through the lens of others such as parents. Under the ICCPR, the HRC refers to children as having rights to religious freedom (e.g. the right to wear the Islamic headscarf at school). Under the UNCRC, the Committee sees the child as the key actor of the right to religious freedom (even to the detriment of other important actors). Under the ECHR, the child is also an actor (even if the Court does not properly understand the rights and interests of the child). This is slightly more difficult for the Special Rapporteurs, as children are often envisaged in relation to a religious minority or community; however, Asma Jahangir has recently referred to the rights of children to choose their religion from a certain age, and the Rapporteurs are likely to take the child dimension of the cases if they have more cases regarding children in the future.
In addition, these four bodies generally adopt a reasonable position regarding the autonomy of the child. Under the ICCPR, there is a risk of too much autonomy, yet it is not the exclusive focus of concern for the HRC. The Special Rapporteurs do not over-emphasise autonomy, as the child is usually considered as part of a religious community or minority. Under the ECHR, there is not much emphasis on the autonomy of the child; the Court often fails to take the child dimension of the cases into account; it often misunderstands the rights and interests of the child in relation to their religion and steps in with what it thinks is in the best interests of the child; there is some focus on autonomy as the Court is concerned that the child should not be indoctrinated but able to make an informed decision when older. Under the UNCRC, however, there is a substantial focus on autonomy; this should not necessarily be the approach under Article 14, yet this is how it has been interpreted by the Committee. However, this approach is not followed by the three other bodies, and the UNCRC stands alone in its autonomy approach.
The theoretical model also provides a more satisfactory statement of the right of the child, and this book has advanced the advantages of this model. It sees the child as the holder of an independent right to religious freedom, whatever the age of the child. According to one view, the child does not have an independent right to religious freedom, and it is argued that all conflicts involving children and religion are to be seen through the lens of other actors (such as parents, religious community, other third parties, or the state). For example, it is sometimes argued that children do not have a right to religious freedom because they are brought up by their parents into one particular faith and adopt their parents' religion. However, this does not mean that they do not have a right against the state (for example that it does not interfere with the nurture of children, or that it acts positively for children). It simply means that the right of the child to religious freedom has a different basis from the right to religious freedom of an adult, which is often based on the autonomy of the individual to make religious choices (or at least this is how the law, including international law, views religious freedom). Children are 'agents', and international law certainly reflects this. It is then correct that a theoretical model of the right of the child to religious freedom should reflect the rights and interests of the child, not for the sake of it, but as a means to safeguard the interest of the child to flourish as a religious being.
We saw that the right of the child to religious freedom is the right of every child to be unhindered in their growth as an independent autonomous actor in the matrix of parents, religious community and society. This reflects the nurture of the child by parents and religious community, as well as the fact that the child comes of age at some point and should be able to make personal choices in religious matters. This is not based on an imaginary model of what the right of the child to religious freedom should look like, nor on what human rights lawyers think is best for the child. It does not over-emphasise autonomy, which only becomes an issue when the child comes of age. On the contrary, the theoretical model is based on the real lives of children, on the reality of what it means for a child to be religious.
This model provides a definitive statement of the right of the child. It defines the key actors, that is, the state with parents and religious community as important third parties. It is thus possible to create a set of rights and duties against the state. It integrates the concept of autonomy into the concept of children's rights. However, autonomy is not the ultimate foundation of the right but only becomes relevant when the child comes of age. This is attractive in that it is a balanced position: it neither states that a child cannot have an independent right to religious freedom, nor does it state either that the autonomy of the child in religion is the most important aspect. This model sets out that the child has a right to religious freedom whatever their age and decision-making capacities, and not only when they come of age. This is useful in terms of the rights of a young child against the state (and sometimes against parents and religious community). This means that the child does not go from having no right to religious freedom when being young to having a right to religious freedom when coming of age. It is important though to remember that autonomy is not a key feature of the right of the child, and that it only emerges as relevant across the developing life of the child.
The theoretical model should be at the centre of the right of the child to religious freedom. It is now possible to arrive at a restatement of the right of the child and attempt to provide suggested answers and solutions to conflicts and tensions involving children and religion. Any attempt to provide answers must be informed by the theoretical model and what the right of the child to religious freedom should be. As the theoretical model is adopted in international law, we are likely to come up with a number of answers. We have seen before that the child comes of age at some point, which should be reflected in the right of the child. However, it can be difficult to define when the child comes of age. This involves drawing lines between the right of the child and other competing interests, which is a difficult exercise. However, the state does not have complete discretion in the matter (which would devoid the right of its meaning), and its approach must be informed by the theoretical model. The right of the child to religious freedom is composed of both negative and positive rights.
First, regarding the transmission of religious beliefs from parents to children, the child has a right against the state to be brought up in their parents' faith and beliefs. This means that the child does not have a right to be protected from their parents' beliefs: it is not coercive or indoctrinating in itself to bring a child into a religious community, and the child does not have a right against their parents that they should be old and mature enough to hear about religion.
Secondly, the child has a right that the state does not intervene in their nurture. This includes religious practices, ceremonies, initiation rituals, and freedom of worship. The state is not allowed to interfere with the diet and dress codes of the child. It cannot prohibit the baptism or circumcision of the child, and it is not allowed to prohibit the child from worshiping in a specific building or in the home or from praying. Similarly, the state is not allowed to prevent, prohibit, or make it more difficult for parents to initiate their child in these practices, ceremonies, rituals, and worship. In the same way, the state must not prohibit these activities or impose any age-limits or test on the evolving capacities of the child which would restrict the right of the child. This also includes the right of the child to tell others about their religion. All this is at the core of the negative rights of the child against the state. Therefore, if the state considers that it is necessary to interfere with these rights, there is a heavy burden lying on the state to justify any interference with the right of the child.
Thirdly, the child has a right that the state does not interfere in their education. The state cannot prevent or prohibit parents from bringing up their child in accordance with their own religion and convictions. The state is not allowed to prohibit parents from giving religious education at home or in the religious community. Similarly, it cannot impose tests on the evolving capacities of the child, or age-limits according to which religious education would not be possible before a certain age. The state must also refrain from imposing on parents and children a policy of neutrality in the education of children at school, which would interfere with the relationship between child, parents and religious community. In addition, the state must not interfere with the education of the child at school. If the state provides religious education classes, whether denominational or not, they might interfere with the nurture of the child at home or in the religious community. Accordingly, the child has a right to complete exemption. If the child is young, it is up to the parents to decide and withdraw their child from these classes, and when the child comes of age then the decision is up to them. The issue is to know when the child comes of age, and who decides so. The state may have a margin of appreciation to decide upon an age-limit or a range of ages according to which the child comes of age, yet this must allow flexibility. According to the theoretical model, the state does not have complete discretion but must recognise that children come of age at different times; in this the state must follow the approach of the theoretical model.
Fourthly, the state must not interfere with the right of the child through coercion, forced conversion, and persecution. The state is not allowed to forcibly convert the child through forced marriages, abduction and kidnappings. The child has a right that the state does not force them to undergo initiation rituals, attend services of worship or religious ceremonies. In addition, the state must not force the child to accomplish 'neutral' acts that the child considers to be in contradiction with their religious beliefs, and there is a burden on the state to justify any interference.
Fifthly, the child also has a right that the state does not affect their legal identity or status because of their religion. In countries where religion is recorded by law, the child has a right not to disclose it, and a procedural right to change their religion on the records. In addition, when the record of the child's religion depends on the parents' religion, the child has a right to change the records. The state may have a margin of appreciation in deciding when the child comes of age, but its discretion is not complete, and its approach must be informed by the theoretical model.
International law does not say anything about the right of the child to refuse medical treatment for religious reasons.
In addition, the child has positive rights against the state. It is worth remembering that whereas negative rights carry an obligation of result, positive rights only carry an obligation of means, which means that the state must only take all reasonable steps to protect the child's rights.
First, the child has a right that the state protects them against their parents in certain circumstances. This applies to both refusing religious education classes and joining a religious community. We saw that when the child comes of age, they have a right to decide for themselves whether to attend religious education classes, withdraw from them or choose an alternative, even if this is against parental wishes. This means that the state must protect the child's choice, but only when the child comes of age. This includes a procedural right for the child to decide at school. The state has a margin of appreciation, but not complete discretion, to decide. Its approach must be flexible and be informed by the theoretical model.
Similarly, this applies to positive membership of the child in a religious community. The state has a duty to protect the choice of the child to join the religious community of their choice, but only after the child has come of age. When the child is of age, they have the right to choose, even if this is against parental wishes, and the state must justify any intervention by reference to the right of the child.
The child also has a right to be protected by the state against other third parties. For example, the state must protect the child against persecution, coercion, and forced conversions, which are likely anyway to infringe other rights in addition to religious freedom. The right of the child includes a duty upon the state to require third parties to refrain from interfering with the child's right. The child also has a right that the state should protect them against harmful practices imposed by third parties, such as parents or religious community, which endanger the life or health of the child.
Secondly, the child also has procedural rights regarding custody, adoption, and care-matching practices. This is an area where the state is particularly active because of the cases that arise before the courts. We have seen before that the child has the right to be brought up in their parents' religion. As regards custody, the child must be able to carry on in the religion they have practised or been brought into. This means that the child has a right to be heard before coming of age, and a right that wishes be acted upon when coming of age. The state has a margin of appreciation in the matter but not complete discretion. It must provide a range of ages regarding the wishes of the child to be heard and to be acted upon, and its approach must be informed by the theoretical model. International law does not give an answer to adoption and care-matching practices. However, any answer must be informed by the theoretical model, and it is likely that international law adopts a similar approach as custody.
Thirdly, the child has rights to a number of substantive benefits from the state. This does not include the right of the child to receive religious instruction at school, general classes or classes in their own religion. International law does not give an answer to the right of the child to receive substantive benefits from the state, i.e. specific food or prayers rooms at school.
We have seen that the relevant parties have rights that are equally weighted and relevant, at least to start with. It will be necessary to adjudicate these rights through an analysis based on proportionality. These different weights need to be tested in order to arrive at a concrete outcome. In the end, any restriction of a right by the state will need to be proportionate, that is, it must be a measure capable of pursuing a legitimate aim, it must be the least intrusive measure, and it must be worth it. Through this analysis, we will end up making judgments, and the outcomes of these judgments will express the weight to be given to different rights. Perhaps more could have been said in terms of weighting different rights; however, this book has given the model to follow in international law, and the working out of specific situations, including in domestic law, is best left to future research.
In conclusion, we have seen that the right of the child to religious freedom in international law is a very complex issue. As we said in the introduction, it is controversial, it does matter to children, parents, religious communities and the state how cases are handled, and it involves theories of rights. In addition, the equation involves the child, the state, the parents and religious communities rather than just the child against the state. Finally, it is about religion, which forms the subject-matter of one of the most complex of human rights. However, the right of the child in international law as it has been interpreted by different bodies and courts is unsatisfactory. It reflects an impoverished understanding of the right of the child, and the right has not been taken seriously enough. The issue of when the child comes of age is complicated, and it is very difficult to draw lines. In some instances, the state has to justify any interference with the right of the child, and in other instances it has a margin of appreciation to provide a range of solutions. There are also questions that international law is silent about. However, in all these instances, the approach of the state must be informed by the theoretical model. The right of the child to religious freedom is very important, and it needs to be taken more seriously than it has been until now.
Law and the Sacred edited by Austin Sarat, Lawrence Douglas,
Martha Umphrey (The Amherst Series in Law, Jurisprudence, and Social
Thought: Stanford University Press) The specter of the
sacred always haunts the law, even in the most resolute of
contemporary secular democracies. Indeed, the more one considers the
question of the relation between law and the sacred, the more it
appears that endless debate over the proper relationship of
government to religion is only the most quotidian example of a
problematic that lies at the heart of law itself. And currently, as
some in the United States grapple with the seeming fragility of
secular democracy in the face of threatening religious
fundamentalisms, the question has gained a particular urgency.
This book explores questions about the fundamental role of the sacred in the constitution of law, historically and theoretically. It examines contemporary efforts to separate law from the sacred and asks: How did the division of law and sacred come to be, in what ways, and with what effects? In doing so, it highlights the ambivalent place of the sacred in the self-image of modern states and jurisprudence. For if it is the case that, particularly in the developed West, contemporary law posits a fundamental conceptual divide between sacred and secular, it nevertheless remains true that the assertion of that divide has its own history, one that defines Western modernity itself.