Human Rights Has Got Religion

Or so says secular Neo-Marxist philosopher Jürgen Habermas. In an article by Richard Wolin in this week’s issue of the Chronicle of Higher Education, discussed here, Habermas had this to say about the role of religion in the development of human rights:

… Habermas asserts that modern notions of equality and fairness are secular distillations of time-honored Judeo-Christian precepts. The “contract theory” of politics, from which our modern conception of “government by consent of the governed” derives, would be difficult to conceive apart from the Old Testament covenants. Similarly, our idea of the intrinsic worth of all persons, which underlies human rights, stems directly from the Christian ideal of the equality of all men and women in the eyes of God. Were these invaluable religious sources of morality and justice to atrophy entirely, it is doubtful whether modern societies would be able to sustain this ideal on their own.

In a recent interview Habermas aptly summarized those insights: “For the normative self-understanding of modernity, Christianity has functioned as more than just a precursor or a catalyst. Universalistic egalitarianism, from which sprang the ideals of freedom and a collective life in solidarity, the autonomous conduct of life and emancipation, the individual morality of conscience, human rights, and democracy, is the direct legacy of the Judaic ethic of justice and the Christian ethic of love.”

One of the great jurisprudential issues in international law concerns the moral basis for universal norms (slavery, piracy, genocide, etc.). I have often found it odd that international lawyers and academics maintain non-consensual international human rights obligations (i.e., preemptory norms or jus cogens) without conceding the non-positivist aspect of their position. Article 53 of the Vienna Convention on the Law of Treaties pointedly avoids this deeper question, simply defining such an obligation as “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted.”

Which is another way of saying that we the international community require you the individual state to obey this obligation even if you would otherwise choose not to. Which begs the question of on what basis does the international community rank a particular norm (but not others) so high that a non-consenting state must conform to it.

Whereas the Dutch theologian Hugo Grotius would happily contend that international law is derived from immutable natural laws of God, the positivist tradition of Lassa Oppenheim would argue that “only a positive law of nations can be a branch of the science of law.” Today it would seem we unwittingly are witnessing in international human rights law a synthesis between the Grotian thesis of natural law international obligations and the antithesis of the international positivists. Consensual international obligations follow in the positivist tradition, while non-consensual universal preemptory norms hearken back to the natural law roots of international law.

Perhaps this deeper point is avoided because, as Habermas suggests (echoing John Rawls), to gain a reasonable chance of public acceptance, “religious reasons must ultimately be capable of being translated into secular forms of argumentation.” The secular version of universal human rights norms has succeeded in garnering widespread (near global) public acceptance, whereas it might have had much greater difficulty if it were clothed in religious justification. The roots may be religious, but it is the secular tree and branch that we see and nurture.