28 Human Rights and Duties: A Religious Perspective

Nizamuddin Ahmad Siddiqui

AIMS OF THE CHAPTER:

• To understand the concept of religion as a basis of rights and duties.
• To understand the concept of human rights and duties from a religious perspective.
• To understand the similarities between religious basis of rights and modern day international law.

1. UNDERSTANDING RELIGION IN INTERNATIONAL LAW

It has been the most challenging task for philosophers to arrive at a common definition of religion that has been accepted by all. Commonly, people relate religion with belief or faith in a particular god.1 Sir Williams, a professor of Sanskrit at Oxford had said that “ a religion, in proper sense of word, must postulate the existence of one living and true God of infinite power, wisdom and love, the creator and preserver and designer of all things, visible and invisible” and “it must take for granted the immortality of human soul.” One of the broadest definitions of religion was given by Tylor where he said that religion is a belief in “spiritual beings.” Religion can be defined in two ways, one by the content of the teachings that the religion spreads, and second, the manner in which the beliefs are held.4 The former gives an abstract definition to the super power and the latter indicates the methods of achieving oneness with the supreme power. Apart from our everyday encounters with religion, like in our morning prayers or a civic strife in the city, religious codes, like Islamic Sharia, Jewish Halakha, and Hindu law have codified such norms which it believes to govern the perfect life of a human beings, governing their rights and duties.

Such norms that tend to bring us near to a perfect human life always have an emphasis on duties than on rights of individuals. These duties that emanate from religion have been based on the moral grounds that religions lay down to guard relationship among communities. In order to ensure that these duties are enforced, religions introduced punishment that has the sanction of God to instill fear among people. This fear led to the development of social norms having the force of law in early human civilization. Throughout this chapter, we will see how religion contributed to the concept of human rights and duties.

2. RELIGIOUS BASIS OF RIGHTS AND DUTIES

It cannot be denied that some important legal principles have found their origin in religion. For example, the word ‘sin’ in religion developed into the concept of acriminal offense in law.8The seven commandments of the church, one of which says,“you shall not kill, you shall not steal”, overlap with the normative law. In place of punishments, Christianity has the concept of canons. Although priests claim that canons cannot be synonymous to punishments, yet the origin of punishment can be traced from there. Other religions have similar concepts of improving and easing the soul. Apart from the concept of crime and punishment, some rights also see their emanation from religion. For example, Islam’s inheritance rights have been among the first ones to recognize women’s share in inheritance.

So, the concept of rights and duties in contemporary period can be traced to the religious teachings. It can be said that morality forms the basis of religion and religion and morality together form the basis of law. The contribution of religion in developing law would be looked in the following sections.

2.1 Judeo Christian Tradition

The central idea of the beliefs of Judeo Christian tradition is that God is the creator of all things. This supports the idea of rights that all enjoy by virtue of their common humanity. Therefore the human being has absolute and inviolable worth.

The Christian understanding of human rights is also centered on the belief that human life is entirely a function of the value divinely granted to humans through Christ. It negates the presence of any social difference and imposes the idea of universal equality, which is the basis of modern international Human rights principle. The fact that the Judeo-Christian tradition recognizes the idea of the creation of man in the image of God, strengthens the principle of absolute freedom and grace which are the universal principles of human rights.

As an example, the idea of inherent rights and dignity as explained in religious terms can be seen to have implications for the law of euthanasia. The European Court of Human Rights states that the right to life under Article 2 of the European Convention on Human Rights (ECHR), does not include the right to die.18 Christianity condemns suicide and regards it as self-murder. However, this does not mean that religion can provide for a theory of human rights in all aspects. For example, the Bible claims that all have dignity, including the fetus, the law, however,has not recognized so. The fact that this Biblical viewpoint is not represented in law (i.e. abortion is allowed), means that not all aspects of human rights can be explained by a Biblical (or religious) theory.

2.2 Hinduism

Known throughout the world for its spirituality, Hinduism, like Judaism has no word for ‘rights’. The closest word to ‘rights’ is Adhikar, which relates to the idea of ‘just claim’. However, Adhikar can be claimed only when a complementary duty is performed. In Sanskrit, this understanding relates to the central concept of Dharma, the central doctrine of Hindu thought. The word finds its root in which means ‘to uphold, sustain and nourish’.23 This comprehensive term encompasses the meaning of duty, morality, law, order, and justice. For example, it can be used in a ritualistic context to mean the religious duties, or it can be used to mean the duties of the different castes (varna-dharma), or it can refer to those duties that are common to all irrespective of class.

In the Mahabharata, a Hindu religious text, it has been written down that if the king does not perform his rights, then the subjects can overthrow him. This is a prominent example that explains the concept of rights in a reverse manner, i.e. the fact that not fulfilling the duties gives a right to rebel itself establishes the existence of a right.26 Through this example, human rights can be interpreted in thecontext of human duties.27 Therefore, Hindu thought places Article 29 of the UDHR prior to any other Article.28Mahatma Gandhi expressed that ‘…all rights to be deserved and preserved came from duty well done. Thus, the very right to live accrues to us only when we do the duty of citizenship of the world’.

2.3 Islam and Human Rights

Islam provides an amalgamation of rights and obligations in an express form that focuses on social responsibility. The principle of Islam incorporates that every person shall be seen as equal and without being marginalized shall be included as a part of the whole.30 The key terms used by the Qur’an and the Sunnah in this regard are huquq Allah and huquq al-‘ibad, the rights due towards the Creator and the Sustainer and the rights of Allah’s servants, i.e., human beings.

While the western idea of rights is conferred by the crown or barons, Islam focuses on the idea that rights are not conferred by some authority but is a matter of one’s own fulfillment. It shuns the idea of class struggle, thereby bringing human rights in its purview in a subtle manner. These rights are not determined in view of the social status or the politics of majority and minority; nor are they linked to any racial or gender considerations. The Qur’an and the Sunnah declare all human beings as the progeny of Adam. Therefore, all humans, irrespective of their gender and color, are declared essentially equal.

Islam identifies with seven principles of universal ethics and recognizes them for the whole humanity. They are not exclusive to Islam.35 The universal Islamic call for the unity of mankind is also based on these non-variables. The rights and obligations of an individual help in the social construction of reality on the principles of justice and equity. Man’s social interaction and the evolution of society and culture are directly linked, in a gestation manner, with these principles. These principle-based values are meant to be translated into the socio-political, economic, cultural and international behavior and rights of man. This philosophy identifies the principles of human rights that are embedded Islamic doctrines.

3. MODERN EMERGENCE OF RIGHTS AND DUTIES

For 1,000 years, philosophy in Europe had been dominated by medieval Christian theologians, and since about the twelfth century, by the Scholastic tradition in particular. The first diversion from it was the Magna Carta issued in 1215. Beginning at around 1400 in Italy, Europe experienced a dramatic intellectual movement called the Renaissance, which emphasized the resurgence of science and culture through classical influences. The term “Renaissance” literally means “rebirth” and was first used in the 19th century to refer to this extraordinary period of time. It set a new direction for art, architecture, music, literature, scientific discovery, and world exploration. Philosophy was also a beneficiary to this period of renewal. In philosophy, the stage that follows on the heels of the Renaissance is called the modern period.

For Grotius, natural law is a rational principle of morality and social justice which “is so unalterable, that it cannot be changed even by God himself”41. In fact, he goes so far as to say that natural law would still have some validity even if “we conceded that there is no God”. In this way, natural law is a secular phenomenon, not a divinely-created one. Reason itself, he argues, contains a clear standard of moral rightness, and certain actions are unquestionably evil when “compared with the nature of a reasonable being”. According to Grotius, there is a highest moral principle of natural law which is embedded in our rational nature, namely, that we should be sociable—we should live in peace with one another and uphold the social order.

A second great contributor to a new conception of morality and natural law was Thomas Hobbes (1588–1679), who took a more skeptical approach to the subject of thereligious basis for rights and duties than Grotius. The backdrop of Hobbes’s political philosophy is his materialist view of the physical world and human nature.44 The standard view of the subject since the middle ages was the dualist position that the universe contains both material things like rocks and non- physical spirits such as God and human souls. Hobbes denied this view, holding that the universe is comprised entirely of material stuff. He developed the concept of ‘contract theory’ that gave rights and obligations to people. According to him, the state of nature is a miserable moral condition that we should escape from if we hope to have a long and happy life. But how can we do that? The solution, for Hobbes, is to devise an agreement with others; that is, we form a social contract by which we agree to set aside our hostilities to create a peaceful society in which we can have long and fruitful lives. In his words,

“Whatever therefore is consequent to a time of war, where every man is anenemy to every man, the same is consequent to the time wherein men live without other security, than what their own strength and their own invention shall furnish them withal. In such condition, there is no place for industry, because the fruit thereof is uncertain; and consequently no culture of the earth, no navigation, nor use of the commodities that may be imported by sea; no commodious building, no instruments of moving and removing such things as require much force; no knowledge of the face of the earth, no account of time, no arts, no letters, no society; and which is worst of all, continual fear and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.”

Modern philosophers have justified the basis of human rights through high reason and not religion. So, the basis of religion in theformation of rights and duties are not as strong now, as it was during ancient times. This could be seen in the development of international law as well. Modern international law developed out of Renaissance Europe and is strongly entwined with the development of western political organization at that time. The development of European notions of sovereignty and nation states would necessitate the development of methods for interstate relations and standards of behavior, and these would lay the foundations of international law. However, while the origins of the modern system of international law can be traced back to the treaty of Westphalia that brought an end to the Dutch- Spain war in 1648, the development of the concepts and practices that would underpin that system can be traced back to ancient historical politics and relationships thousands of years old. As international customs and trade became more important as the source of rights and duties, the role of religion started getting diminished.

The Hanseatic League of the more than 150 entities in what is now Germany, Scandinavia, and the Baltic States developed many useful international customs, which facilitated trade and communication among other things.50 The Italian city-states developed diplomatic rules, as they began sending ambassadors to foreign capitals. Treaties—agreements between governments intended to be binding—became a useful tool to protect commerce.

Earlier, the relation between states was based on canons of Catholic Church. But the idea of detaching international relations on the basis of religion was propounded by Hugo Grotius, who believed that the natural law Grotius believed that natural law came from an essential universal reason, common to all men, unlike others who believed religion to be the basis of international law.

4. IMPACT OF RELIGION ON HUMAN RIGHTS

Voices against intolerance and respect for religious Human Rights can be traced back to even ancient times. The basic feature of religious human right respects the religious belief of others. In the ancient teachings of Hinduism for example, denigration of beliefs of other religions is itself condemned. The religious texts not only condemn such an approach but also accept that tolerance towards other religion would bring good to the society. Similarly, Buddhism is rooted in the concept of religious freedom and respect for religious human rights. The ultimate ground for respect for all religions is also found in the Talmudic writings of Judaism. Judaism teaches the infinite worth of every individual life. In Christianity, the manner of God’s dealing with human beings can be awitness of the value given to rights of individuals. In Islam, Qur’an categorically mentions that “there should be no compulsion in religion.” The existence of God in every soul has been the teachings of Sikhism which form the basis of equality among individuals. Therefore, the basic human right of freedom of religion can be found in the teachings of every religion.

“Fifty years after its proclamation,” writes Michael Ignatieff, “the Universal Declaration of Human Rights has become the sacred text of what Elie Wiesel had called a ‘worldwide secular religion.’ The growth of the human rights movement has given it the confidence to take on controversial issues and extend the promise of the Universal Declaration of Human Rights (UDHR) in areas that it had previously neglected.

Religion indeed plays a pervasive and often powerful role in global affairs. Problems of a religious nature often implicate international security as much as they do human rights. In a trend reminiscent of King Louis XIV’s 1649 proclamation declaring French protection of the Maronite community in Lebanon, or of the 19th century European powers’ “humanitarian interventions” against the Ottoman Empire to “protect persecuted Christians,” religious freedom and the fate of religious minorities have assumed an increasingly prominent place in international diplomacy. In 1998, under pressure from Christian groups and representatives of a number of other faiths, the U.S. Congress passed the International Religious Freedom Act. The law established an Office of International Religious Freedom in the State Department and an independent, bipartisan Commission on International Religious Freedom, and tasked them with monitoring and reporting on the incidence of religious persecution around the world. Based on the annual reporting of these bodies, the U.S. president can take diplomatic and economic measures against “countries of particular concern,” making one particular right—freedom of religion—a unique yardstick of foreign relations. The religious/human rights equation and its role in global politics are made still more complex due to major differences among democracies concerning the place of religion in public life. The gap between a “post-religious Europe” and the United States is particularly significant and not without consequences for the priorities and approaches of the international human rights movement.

In the 1970s and 1980s, religious and human rights groups shared many objectives, reflecting a common conviction of the universality of the human rights message and its grounding in the traditions of most religions, philosophies, and civilizations. Religion based traditionalism seemed on the wane and “culturalism,” the black-boxing of cultures as exclusivist identity-referents, was not allowed to tyrannize human rights. Conferences sponsored by UNESCO in the early 1990s on the theme of inter-religious dialogue and, to a great extent, the 1993 U.N. sponsored World Conference on Human Rights in Vienna—its recognition of the universal character of human rights—were high points of this convergence between the human rights movement and mainstream religious communities. Most in the secular human rights movement agreed that there was indeed a faith-based commitment to human rights.61 This convergence was also helped by the priorities imposed on the human rights movement by the brutality of government repression. In particular, the conference organized by UNESCO on the contribution of religions to the “culture of peace,” held in Barcelona in December 1994. Civil and political rights were an immediate question of life and death while issues more likely to separate rights and religious communities were confined to the sidelines: most opted for a “coexistence of differences” on flash points like sexuality or abortion. In Mexico, for instance, the bishop of the state of62 Chiapas, Mgr. Samuel Ruiz could join with secular human rights activists on civil and political rights issues, and even on social justice concerns implicating rights to health and housing, while retaining his more traditionalist positions on issues like sexuality and reproductive rights.

The concept of religious freedom is acknowledged in Art 9(1) of ECHR which says that, ‘“Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice, and observance.”

There are inherent difficulties with protecting people’s beliefs. That is because some people will believe anything. The law, therefore,has to develop specific tools to weed out those beliefs that in contrast to some religious beliefs which are regarded as rational, are not seen as worthy of protection at all. The House of Lords has recently stressed the importance of giving the benefit of the doubt to the Claimant in this area to avoid the problem of subjective interpretation. In R (Williamson) v SS Education and Employment, Christian parents who accepted certain biblical prescriptions concerning corporal punishment of children challenging legislation banning the administration of corporal punishment in independent schools, as a violation of Article 9 rights. Lord Nicholls set out the requirements for a belief to come within article 9: a. The belief must not be trivial. b. The belief must be consistent with basic standards of human dignity or integrity. c. “The belief must also be coherent in the sense of being intelligible and capable of being understood. But, again, too much should not be demanded in this regard. Typically, religion involves belief in the supernatural. It is not always susceptible to lucid exposition or, still less, rational justification. The language used is often the language of allegory, symbol, and metaphor. Depending on the subject matter, individuals cannot always be expected to express themselves with cogency or precision.” This position is a clear reference to, and relaxation of, the Strasbourg view of what amounted to ‘beliefs’ in Campbell and Cosans v the United Kingdom, namely beliefs that “attain a certain level of cogency, seriousness, cohesion, and importance.”The belief does not have to be religious. “The atheist, the agnostic, and the skeptic are as much entitled to thefreedom to hold and manifest their beliefs as the theist.” But “for its manifestation to be protected by article 9 a non-religious belief must relate to an aspect of human life or behavior of comparable importance to that normally found with religious beliefs.” It is not immediately obvious what might be included in this category at all.

Some religious sanctions have been lately recognized to be of no legal basis. For example, in VishwaLochan v. The Union of India, it was held that Fatwas issued by the Shariat courts with the intent of providing justice specifically to the Muslims who fail to get justice in the prevalent justice delivery system owing to the expensive and protracted litigation, have no legal status and hence cannot be enforced by any process using thecoercive method. The existence of Shariat courts and the practice of issuing Fatwas is not illegal although it has no legal and Constitutional scheme.

Also, certain basic rights have been adopted through legal precedents even when they conflict with religious principles.73 For Example, The Supreme Court of India held that “Persons of any faith can adopt a child under the Juvenile Justice (Care and Protection of Children) Act. The Act will prevail till uniform civil code is achieved, and the Muslim personal law will not stand in the way of such adoption,” a bench led by Chief Justice P Sathasivam observed on a petition filed by Shabnam Hashmi.

5. DUTIES IN INTERNATIONAL LAW

As seen before human rights that emerge from religion, usually have a complimentary duty attached to it. Obligations have been divided into two categories by some organizations like the European Court of Human Rights. They can be (a) negative obligations and (b) positive obligations. The negative obligations require states not to interfere in the exercise of rights. The same is not true of the positive obligations. So, in Human Rights, people have a right to non- interference in the rights that have been granted to them.

However, these rights and obligations differ from treaty to treaty and have been fragmented to be laid down in different international instruments. But, the essence of these rights and obligations are universally the same. For e.g. The obligations of States in relation to economic, social and cultural rights are expressed differently from treaty to treaty. For example, in its Article 2 (1) the International Covenant on Economic, Social and Cultural Rights requires States “to take steps” to the maximum of their available resources to achieve progressively the full realization of economic, social and cultural rights. The Covenant also requires states to guarantee the enjoyment of economic, social and cultural rights without discrimination and to ensure the equal right of men and women to the enjoyment of these rights. Similar rights and obligations have been differently worded by other treaties and conventions.

Even though states may realize economic, social and cultural rights progressively, they must also take immediate action, irrespective of the resources they have, in five areas: elimination of discrimination; economic, social and cultural rights not subject to progressive realization; obligation to “take steps”; non-retrogressive measures; and minimum core obligations.77Furthermore, in order to clarify the meaning of states’ obligations, they are sometimes put under three headings: to respect (refrain from interfering with the enjoyment of the right), to protect (prevent others from interfering with the enjoyment of the right) and to fulfil (adopt appropriate measures towards the full realization of) economic, social and cultural rights.

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