Which Path to Religious Freedom?
A Catholic Perspective on International Affairs
Religious freedom is actually one of the best protected human rights in international law. Why then does it also remains as one of the most frequently and widely denied? Recent studies by The Pew Forum on Religion, as well as other evidence, clearly show that violations of religious freedom are not abating, but have rather increased over the last decade. More than 70% of the world population lives in areas where religious freedom is not fully guaranteed. The trend is worrying, to say the least. It seems that, despite all the legal instruments, the minimal protection of religious freedom has still not been achieved in most countries.
Why is this? A number of good reasons can be put forward. Yet one explanation, often discarded, concerns the shortcoming of our conception of the secular State and its relationship with religions, hence with religious freedom itself. Certainly, poor State legislation, political bad will, cultural prejudice, hatred and intolerance are very important fixtures of the violation of religious freedom. However there seems to be a recurring and basic question surrounding the way religious freedom seems to be equated with the liberal, secular rule of law of Western States.
Take for example the right to conversion, one of the hot button issues that regularly sneaks into the debate on religious freedom at the UN Human Rights Council. The right to change religion is explicitly recognised by the 1948 Human Rights Convention - and many other international instruments - as an intrinsic part of religious freedom. Nevertheless it fails to make it to much national legislation, especially, it must be said, in countries where Islam is prevalent and acknowledged as the official religion of the nation. But then, should we simply consider these countries as politically trapped in some sort of pre-modern conception of the State, unable to come to the clear recognition of the 'required' secularity of the State's law? In fact, if western countries argue that the recognition of the right to convert is a matter of justice, in the view of other countries it is precisely the State and its supposed need to show no preferences toward religions which is called into question. We might disagree, but must answer the question, do we? And finding the right answer might indeed prove more difficult than we are prepared to admit.
After all, it is claimed, the heated debate surrounding the relationship between the modern State and religion in the West during the last two centuries is thought to be now definitively settled (we don't want to revert to the past, social progress can't be stopped). Well, this argument may have been 'settled' in Europe for the past 80 years, but it did not occur peacefully and not without much violence against religions.
Moreover, the present relegation of faith out of the public square to the fascinatingly small pigeonhole of private hobby does not seem much of an achievement regarding freedom of religion. The recent cases seeking to banish religious symbols from public institutions and brought to the courts, may demonstrate that intransigence regarding religion is not an exclusive feature of 'pre-modern' States, but also—and rather worryingly—of the post-modern secular State.
All in all, in the West as elsewhere, there is an urgency to give religious freedom a second thought. In our view three overlapping issues make the top of the agenda:
- Religious freedom is not first and foremost a right. It is a limit set to the State; better said a limit determining what goes far beyond the State sovereignty. As much as we recognise human dignity as the basis of Human Rights—hence as a crucial limit of the State sovereignty—we should also recognise the freedom brought by religion as more than a civil freedom. It is a freedom that signals the upper limit of the State; a limit set by the transcendence of human beings, which cannot be reduced to our political dimension; a freedom, then, more fundamental than political freedoms; a freedom that sets us free for political freedoms. This is, in fact, already recognised in positive western law under in what is known as a 'conscience clause', but then mainly negatively, as a protection of the conscience from the power of the State (a receding recognition, though). As an upper limit of the State, religious freedom may be seen as one of the sources of the State's legitimacy.
- In order to ensure its neutrality toward religions, the secular State has retreated toward a thin consensus on the good (Rawls). However, by doing so it has also tended to virtually exclude from public institutions—and finally from the public square—any solid conception of the good. What if then, a community, a nation, a State does not wish to renounce the political and social dimension of its vision of the good ends? Since WWII, Western States have in fact been able to keep on 'consuming' the previous, strong, consensus over the good that was needed to draw up the 1948 Human Rights Convention. It remains to be seen if a politically thin notion of the good can resist adversity (and not only manage prosperity).
- Politically, religious freedom is not only a negative freedom—a protection—but also a positive freedom—that is to say the capability to participate to the pubic debate. As any right, religious freedom is also a duty. It leads to social and political responsibility. In secular societies the failure to recognise the responsibility stemming from religious freedom may bring about a polarisation. The State, by denying the political relevance of religions tends to create the very extremes it is supposed to counter: religious fundamentalism and aggressive secularism. It would seem that it creates the same danger that it wanted to avoid. Authentic democracy and social peace requires the full recognition of the capability and responsibility linked to religious freedom.
At the present time, these are three shifting tectonic plates interacting between the secular State and religion. To ignore them would be foolish, as foolish as thinking that the problem was solved once and for all by mere reference to European political history. However strong might be the appeal to preserve the 'Western consensus', time and international reality is shifting away from it. We must reconsider.
Read the full text of the Working Paper here