LAW AND RELIGION (PART 5)

Edited by
Gad Barzilai
University of Washington, USA

Religions and Human Rights: Conflicts

Part III focuses on conflicts between liberalism as culture, political and legal ideology and political power, on the one hand, and religion and communalism, on the other hand. The challenge for liberal jurisprudence has been to reconcile the state’s veiled religious identities with its asserted egalitarian commitments to freedom of, and from, religion. Liberalism has responded to that challenge by means of two arguments. First, individual rights precede any other concrete and distinct defnition of the ‘common good’. Second, the state is neutral and can provide impartial procedural justice (Rawls, 1973, 1993; Barry, 1995). Accordingly, it is constructed as if the state’s religious identities do not exist and cannot obstruct the preference given to individuals’ freedoms over any republican, religious, good. These two fundamental liberal claims are problematical. First, nation-states do have a certain religious republican good. Hence, giving absolute and exclusive preference to individual rights, invariably under all possible contexts, would repress non-ruling religious communities (Barzilai, 2003), which have a different, but not indispensably contradictory, ontological conception of the ‘good’ (MacIntyre, 1984, 1988; Sandel, 1982, 1996). Second, if individual rights are being exclusively underscored, any liberal de-ontological justice might regretfully be disengaged from complex human experiences. Members of nonruling religious communities may not beneft and may even be damaged from the liberal discourse unless they are being stripped of their embedded identities. These types of conflict between liberalism, religion and non-ruling religious communities are the topics of Part III. The frenzied contention over female circumcision as a prevalent custom in some Muslim communities – primarily in Africa – has been an ostensible example of a confrontation between non-liberal religious practices and human rights. Jessica A. Platt returning from a research journey in Africa argues, in Chapter 14, for the prerequisite of cultural relativism when seriously debating the practice of circumcision. She claims that there are possibilities for education and clinical medicine to mitigate between this religious custom and the international community’s imperative to preserve human rights.

Platt analyses important efforts made by international law and some domestic legislation, driven by liberal aspirations and intended to prohibit women’s circumcision since 1948. However, international law also empowers freedom of religion. Hence, the essay raises two points of critical review of the conflict between liberalism and non-liberal religions. First, the legal prohibitions have infringed upon non-liberal communities’ freedom of religion. Second, the legalistic prohibitions have not eradicated the problem, but have instead resulted in more circumcision being performed clandestinely, evading state supervision. Consequently, the legislation has increased the likelihood of health risks and even death among young girls  undergoing this practice. Platt offers an alternative solution – a balance between human rights and the religious custom of circumcision through allowing only spiritual or very light types of circumcision under clinical supervision. Instead of intrusive criminalization of a religious custom, however problematic, she calls for women to be educated and informed about the severe damage that circumcision inflicts upon them. Criminalization in law should be very specifc and only enforced upon severe violent types of circumcision that endanger the sexuality or health of the female and her children, while allowing for spiritual and light undamaging types of circumcision that reflect religious freedom.

In the face of mounting discussions in the West concerning the rights of Muslim women, Nayer Honarvar (Chapter 15) explores women rights in Islamic societies based on a genealogical analysis of Shari’a formal law. She delineates a severe conflict between the formal Shari’a law and human rights. Comparing Muslim women’s socioeconomic legal status with that of Arabian and Persian women before Islam, women’s conditions deteriorated after the seventh century ad, once Shari’a law was imposed. Islam is a male-dominated setting,

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