To find the origin of modern universal human rights, scholars often turn – once again - to the writings of Kant (1797/1996). Kant was the first to write comprehensively on the inherent dignity and worth of all human beings. His ideas had a powerful influence on later
conceptions of human rights. All human rights derive from the concept of inherent dignity and worth: the rights one has simply by virtue of being human (Donnelly, 2013:10). Human dignity is therefore the moral source of human rights (Habermas, 2010:464), which ultimately stipulate what may or may not be done to any given person (Perry, 1998:12-13). Human rights are inherent, equal and universal - not given to people by God – and take precedence over religious and other concerns.
According to modern secularist thinking, religion and politics have to be separated in order for democracy to thrive. For many secularists, such a separation entails not only the classic separation of church and state, but also the separation of religion and politics in civil society (Elshtain, 2009:8). In the words of Harkness (1978:11): “Secularism is the organisation of life as if God did not exist.” The democracies of Western Europe are good examples of secular societies. In these mature democracies, religion has all but disappeared from the public sphere and has even faded away in private life (Elshtain, 2009:8). According to this perspective, human rights (and modernity in general) represent the triumph of reason over religion (Malachuk, 2010:128). It is a triumph that has been predicted by great thinkers since the Enlightenment. Secularisation theory – that the importance of religion declines in well-off,
protest, but it is viewed as threatening and institutions are often too weak to channel it without resorting to violence (Sobek et al., 2006:521).
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secure, industrial societies – has therefore been taken for granted in the social sciences for most of the 20th century (Norris & Inglehart, 2004:3-4).
Many of the values protected by the Western human rights doctrine can be protected by other means: for example, religious or traditional frameworks. However, Donnelly (1989:109-124) argues that such frameworks are less effective as they are not based on the relatively new concept of equal and inalienable individual rights: “entitlements of all individuals that may be exercised against the state and society” (Donnelly, 2007: 284). The idea that all human beings – citizens, foreigners, slaves, men, women, rich and poor – have inherent, equal rights that should be institutionalised did not exist in any previous human society:
“In the ‘pre-modern’ world, both Western and non-Western alike, the duty of rulers to further the common good arose not from the rights (entitlements) of all human beings, or even all subjects, but from divine commandments, natural law, tradition, or contingent political
arrangement. The people could legitimately expect to benefit from the obligations of their rulers to rule justly. Neither in theory, nor in practice, though, did they have human rights that could be exercised against unjust rulers” (Donnelly, 2007:286).
Although religious or traditional procedures of conflict resolution and protection of human dignity may work in small, traditional communities, it is unlikely to suffice in modernised societies with large, diverse urban populations (Leistner, 2014:7-8). In most contemporary societies the human rights doctrine is needed to adequately protect people against violations by the economic, social and political institutions of modernity (Donnelly, 2013:86-87). Traditional societies and older communal support systems have been greatly changed and in many cases destroyed by the impact of capitalist markets and increasingly powerful
bureaucracies. In developing countries there is thus often to be found, not idealistic traditional societies, but rather “a disruptive and incomplete Westernisation, cultural confusion, or the enthusiastic embrace of „modern‟ practices and values” (Donnelly, 1984:411).
Seen in the above light, human rights are thus not so much a Western doctrine to be imposed on others, but rather a necessary response to the forces of modernity. Human rights are “designed for an effective implementation of the core moral values of an egalitarian universalism in terms of coercive law” (Habermas, 2010:464). The majority of the world‟s states have signed the numerous human rights declarations that have emerged since 1948 (Benhabib, 2009:696). There is thus widespread theoretical agreement on the usefulness of
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human rights and Donnelly (2007:286-291) claims that, in practice, no other framework has proven more successful in protecting human dignity. Donnelly (1989: 109-124) also argues that the quality of democracy may be undermined if an alternative value system challenges the secular human rights doctrine. If societal values are rooted in religious or spiritual beliefs as opposed to the secular framework, rights may not be perceived as inherent, unconditional or universal. Conflict may thus emerge between groups, individuals and/or the state. In fact, social scientists have often identified religion as a cause of such conflict (Sandal, 2012:66).
In response to the perceived anti-religious perspective of secularists, many attempts have been made to illustrate the compatibility of religion with human rights. Historically, the development of human rights has been closely associated with Christianity (Joppke, 2013:603-604). The events, challenges and personages that shaped the development of
human rights in the West are undeniably rooted in religious as well as liberal thinking.19 Only later did rights become secularised (Freeman, 2004:386; Little, 1990:59-103). In fact, the very idea of humans as sacred beings who are inherently valuable, seems inescapably
religious (Perry, 1998:13). It is therefore not surprising that the constitutions of almost all the European democracies contain references to God and Christianity (Joppke, 2013:603).
Scholars have therefore attempted to defend Christianity‟s compatibility with human rights. The same is true of Islam, especially in light of the well-known democratic deficit in the Muslim world (Elshtain, 2009:8-14).20 Joppke (2013) not only argues for the recognition of Christianity‟s importance in shaping European culture and politics (including secularism), but also states that a Christian identity for the liberal (Western) state might better enable the implementation of liberal values such as freedom of religion and expression. In openly recognising the religious heritage of the state and the majority of the population (Christianity in the case of the West), a liberal state would also have to recognise the religions of
minorities (such as Islam). Such recognition would not entail the implementation of a state religion or religious education, but would acknowledge religion as an historical and cultural heritage and thereby allow religious expression in general.
19For example, Locke (1955:4) presupposed that the moral authority for rights sprang from God. 20
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By acknowledging all religions instead of banishing it from the public domain, the conflict between the secular state and religion may be resolved. According to this argument, the conflict is between religion and secularism and not between religion and liberal democracy or between religions. This would explain why many Muslims in France attend Catholic schools, where all religions may be expressed, and not public schools, where such expression is banned (Elshtain, 2009:9). It is estimated that more than 10% of the two million students at France‟s 8 847 Catholic schools are in fact Muslim (France only has four Muslim schools). In some of the schools Muslim students form the majority of the student body. They are often accommodated during Ramadan and female students are sometimes allowed to wear head scarves. The Catholic schools teach the national curriculum and participation in religious activities are voluntary (Bennhold, 2008:6).
Although the above-mentioned schools are not without conflict – including disagreements on politics, history and science - there exists the perception that the Catholic Church is more tolerant of Islam than the secular state. The perception is not limited to France: Muslims are also increasingly attending Catholic institutions in other countries, including Scotland (The Economist, 2006:53) and the US (Pethrez-PeOa, 2012:12). The US has seen an increase in foreign Muslims enrolling in Catholic Colleges where they report feeling more comfortable and accepted in a Catholic environment – where religious expression and discussion are permitted and encouraged – than in secular spaces. Comments from the students in the US – “Here, people are more religious, even if they‟re not Muslim” and “I don‟t have to leave my faith at home when I come to school” (Pethrez-PeOa, 2012:12) - echo the sentiments of
religious unity and tolerance in France where Christians and Muslims – “Share the same God” (Bennhold, 2008:6).
The shared interests of Christianity and Islam can also be seen with regards to the January 2015 terror attack on the French satirical newspaper Charlie Hebdo in which 12 people were killed. In the immediate aftermath of the attack, speculation was rife that it could have been carried out by either Muslim or Catholic extremists as both groups oppose unrestrained – and at times needlessly offensive – freedom of speech.21 Although the attack by Muslim
extremists was condemned by Bill Donohue, president of the Catholic League, he also went on to attack the secular intolerance of Charlie Hebdo. Donohue stated that Muslims were
21
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right to be angry over the “narcissistic” disrespect of their beliefs and that “Muhammed isn‟t sacred to me, either, but it would never occur to me to deliberately insult Muslims by trashing him” (Hallowell, 2015).
The shared interests and solidarity among Muslims and Christians support the argument that a religious cultural identity for the liberal state could lead to further interfaith understanding and tolerance. It could also provide better philosophical rationale for human rights and
resolve some of the contradictions often found in liberal ideology (Malachuk, 2010:128-129). In this post-secular perspective, it is “in the constitutional state‟s own interest to treat with care all cultural sources upon which the consciousness of norms and the solidarity of citizens draw” (Habermas, 2006:258). Indeed, the post-secular perspective may become increasingly important in light of the evidence against secularisation theory. The latter includes the continued importance of religion in the USA and Muslim countries, the persistence of indigenous beliefs around the world, the evangelical revivals in Latin America and Africa, the New Age spirituality that has appeared in the West and the ethno-religious conflicts still plaguing much of the world (Norris & Inglehart, 2004:4-5).
Despite its religious history and the ongoing relevance of religion in modern societies, human rights today are viewed as a “secular religion” (Landman, 2012:333) in terms of its
conceptualisation and implementation. Religious references are thus deliberately omitted in the proposed constitution of the European Union (EU) (Joppke, 2013:603). However, the practical implementation of human rights is not uniform. Donnelly (2007) admits that variations in its implementation are possible in order to make allowances for cultural practices so long as such practices do not fundamentally violate basic human rights such as security of person or the right to life. Yet Donnelly (1984:410-414) warns against human rights abuses cloaked in culture-based arguments and states that substantive limits apply to even well-established cultural practices.
There is nevertheless “a legitimate range of variation” (Benhabib, 2009:698) in how rights can be interpreted and implemented. Benhabib (2009:698) argues that such differences are not only legitimate but necessary: people must not only be considered subject to the law, but the law has to be contextualised to local situations. When human rights are contradicted by culture or religion, solutions must come from within society. Scholars like Freeman
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(2004:377-378-381) and Othman (1999:169-192) think this can be done by reinterpreting existing beliefs in order to ground universal human rights in non-Western cultures. Appealing to cultural or religious beliefs may be more successful than attempting to invalidate them in favour of the secular approach. Only in finding locally relevant solutions, can human rights attain democratic legitimacy (Benhabib, 2009:698).
History would seem to argue that religious beliefs can have either a positive or negative impact on people‟s wellbeing in general and human rights in particular. In the South African context, religious organisations played both a positive and a negative role in the struggle for human rights. Although some religious leaders and institutions supported Apartheid, many others were actively involved in human rights activism. It has been argued that the role of these faith-based organisations was vital in ending Apartheid (Palm, 2014:98-99). As with post-secular arguments, it might therefore be possible to view religion as a source from which human rights norms can draw (as it has in the past). This may be a risky enterprise, but perhaps a solution for societies in which secularism is challenged and human rights are disputed (Malachuk, 2010:128-130).
2.5 South Africa in context