Edited by
Gad Barzilai
University of Washington, USA
Religions as Sources of Human Rights
The essays in Part I of this volume address the religious origins of modern human rights and explicate interactions between religious origins and contemporary modern law. In Chapter 1 Michael J. Perry argues that, and explains why, the concept of human dignity and human rights is inescapably religious. Furthermore, he demonstrates how alternative arguments for atheistic foundations of modern human rights collapse unless they acknowledge the religious origins of modern human dignity. Modern human dignity is based on the notion of the (religious) sacredness of every human being. The embedded affnities between law and religion are not singularly historically ontological but metaphorical as well. Paul Lehmann (Chapter 2) shows how religion is embedded in modern law through framing its epistemology and language. Law with no religion causes legalistic formulations to prevail over justice. Hence, responsibility for power may triumph over power of responsibility. The function of religious metaphors in law is crucial since they contribute to the virtues that might generate justice as the marker of the essence of law.
Whereas Perry and Lehmann have deconstructed the rigid boundary between modernity and religion, and between religious law and modern law, the remainder of the essays in Part I analyse specifc historical developments of religious law from antiquity to modernity in several civilizations. In Chapter 3 Daniel Friedmann excavates the logic in the Halachik law of trials. Through analysing biblical narratives Friedmann demonstrates how Jewish law has allowed the evolution of judicial discretion within the meta-narrative of the Torah as a divine constitution. Accordingly, biblical stories constructed a belief in God and in its dicta to constitutionally engineer social mechanisms of communal disciplinary powers. A similar process is traced in ancient Greek mythologies. Once religion and law are understood as part of sociopolitical power, legal developments in rules of evidence, trial procedures, judicial discretion, criminal investigation and executive mechanisms are better understood. Giovanni Ambrosetti (Chapter 4) conceives natural religious law as a junction of reason, theology and history. His essay turns the focus on to Christian natural law that originated in religious scriptures and was only later – especially after the seventeenth century – conceptualized as a rationalistic enterprise. Natural law is not a dogmatic myth; rather, it is constantly and dynamically unveiled through a faith in Christian revelation. The practice of revealed natural law is shaped through obedience, rights and duties of daily legality that have practical meaning in the light of social contexts in which obedience to religious law is being cultivated.
More generally, Harold Berman argues in Chapter 5 that Western legal tradition was founded on religious Christian–Judaic fundamentals. He traces its history from 1050 ad when the Roman Catholic Church was established. Canonical law and the frst legal books and universities in Europe were established in the eleventh century around the corpus of law which was created by the Church in order to control its property, personnel and knowledge and to enforce its religious faith. Hence, religious law was the main source of modern European law. The secularization of Western law since the sixteenth century was advanced through the Reformist Lutheran, English, French, American and Russian revolutions. These revolutions have altered the structure of Western law through greater institutional separation of law from the Church, but have not drastically diminished the importance of religion in law. Calvin and Luther had resisted the Roman Catholic Church’s political domination and religious monopoly, but had recognized and reinforced the intimate relations between various usages of law and religious faith. Thus, Calvinism preached the usage of law as a method of reform, which in turn led to the emergence of John Locke’s seventeenth-century liberalism. Berman argues that liberalism was the frst secular religion to disengage itself from some religious fundamentals although it has nevertheless relied on quite a few religious elements. Those elements, excavated by Berman, may be the basic elements that will constitute the future of international law of human rights.
In Chapter 6 Noel J. Coulson explores law and religion in Islam. Islamic religious law is composed of different, but reconcilable, elements of (traditional) Shari’a and judge-made law in the Muslim state. Shari’a has conceived its law as entirely comprehensive, concerning all aspects of human life and exclusively reflecting the divine will. Since the nineteenth century, Islam has been divided between Shari’a legal ideology that is aimed to be totalistic and judicial practices in various Muslim countries. While Shari’a has been vigorously applied in family law, state law that has been mainly constructed by judges has been dominant in criminal and commercial law and has in practice reformed Shari’a to be more receptive to modern human rights. Even in family law habitual Shari’a-based practices such as polygamy and talaq (a man’s right to unilaterally dissolve his marriage) have been signifcantly reformed and restrained. Coulson explains how, in order to mitigate possible severe crises of legitimacy, these legal reforms in various Muslim states, such as Egypt, Iran and Tunisia, have rhetorically been constructed through Shari’a as if guided by divine Muslim dicta. Other aspects of Islamic law are excavated by Mahdi Zahraa in Chapter 7. His perspective focuses on the internal logic of Islamic law. Two major dimensions in Islamic law are the methodology of developing the law (usul al-fqh) and the set of practical solutions to daily problems to be offered in the realm of Islamic law (al-masa’el wa al-furu’). However, within that seemingly ordered paradigm, meaningful struggles over hermeneutics have prevailed, while the common denominator is obedience to the basic fundamentals of the Shari’a. Hence, Mahdi claims, Islamic law can be adaptable to various contexts through diverse hermeneutics as long as the interpretations are based on common Islamic methodology and rules of interpretations .