Grote & Roder, “Constitutionalism, Human Rights, and Islam after the Arab Spring”

This month, the Oxford University Press releases “Constitutionalism, Human Rights, and Islam after the Arab Spring,” by Rainer Grote (University of Heidelberg) and Tilmann J. Röder (Max Planck Foundation for International Peace and the Rule of Law).  The publisher’s description follows:

Constitutionalism, Human Rights, and Islam after the Arab Spring offers a comprehensive analysis of the impact that new and draft constitutions and amendments – such as 9780190627645those in Jordan, Morocco, Syria, Egypt, and Tunisia – have had on the transformative processes that drive constitutionalism in Arab countries.

This book aims to identify and analyze the key issues facing constitutional law and democratic development in Islamic states, and offers an in-depth examination of the relevance of the transformation processes for the development and future of constitutionalism in Arab countries. Using an encompassing and multi-faceted approach, this book explores underlying trends and currents that have been pivotal to the Arab Spring, while identifying and providing a forward looking view of constitution making in the Arab world.

Divine Rights and Human Rights

That’s the title of a short piece I have over at Law and Liberty, concerning the transformation of the concept of religious freedom from a hybrid divine/human right to an entirely human right. From the beginning (and do see the Mansfield essay, which is about a good deal more than my own):

The eminent political theorist Harvey Mansfield once wrote that the “religious question” is the crucial one for the modern age, because it concerns the ultimate repository of authority and control. Is it human or is it divine?

“All pre-modern regimes,” said Mansfield, “are more or less based on divine right, on appeal to a principle that says men do not control themselves, that they are controlled by a higher power.”

The modern project, by contrast, is centrally concerned with liberation from that higher power:

“For if men cannot act effectively on their own, they will have to return to divine right, notwithstanding the objections that philosophers might propose. Liberation leads to reform. Liberation is not merely skeptical or negative; it is positive and progressive.”

One of the ways that modernity has answered this challenge is by appropriating “religion” and transforming it from a duty that one owes a creator to a duty that one owes to oneself. In law, one sees this transformation clearly in the standard that is conventionally applied by American courts to requests for religious exemptions from general laws, in which sincerity, individual commitment, or personal conviction are alone sufficient to bring a claim (though they are not sufficient to prevail).

That way of perceiving and understanding religion certainly mitigates certain dangers. It locates authority when it comes to religion solely in the individual, thereby removing all authority from the state. The state is disabled from judging in matters of religion both for epistemic and non-establishment reasons.

Furthermore, religion, as a legal category, becomes accessible to more and more Americans, irrespective of what they may believe. That is precisely what happened in the mid-20th century, as the “duty to the Creator” conception of religion was relaxed in favor of a conception locating all authority over religious questions in the individual conscience.

But this revision may also lead to problems, as religion steadily becomes dissociated from any power external to the individual believer. Law, of course, is responsive to and reflective of more general cultural movements, understandings, and programs, and a short post of this kind is no place to document those changes. But the transformation of religion from a divine phenomenon to a human one was brought home to me in reading the “Religion” section of the New York Times Book Review a few weeks ago. Four books about “religion” were reviewed—all favorably. Every one of them reflected this transformation.

Human Rights and the Pan-Orthodox Council

Last week, the Eastern Orthodox Church, a communion of 14 autocephalous, national churches with roots in the Byzantine Christian tradition, concluded an historic synod on the island of Crete. Decades in the planning, the Pan-Orthodox Council, known officially as the Holy and Great Council, was meant to gather patriarchs from all 14 churches for deliberation on a series of issues in contemporary church life, including marriage, fasting, the Orthodox “Diaspora,” and relations with non-Orthodox Christians. At the last minute, four national churches, including the largest, the Russian Orthodox Church, declined to attend—a fact which, notwithstanding the protests of the Council’s supporters, seems as a practical matter to undercut the Council’s significance. Nonetheless, the Council is noteworthy for what it had to say on several topics, including the persecution of Mideast Christians and human rights in general. On the latter, the Council’s documents reveal, once again, important differences with the consensus understanding in the West.

First, though, a word about the churches that stayed away. From what I can tell, most (but not all) of these churches demurred in part because of concerns about what the Council might say about relations with other Christians. Ecumenism occasions much dispute within the Eastern Orthodox Church. Some, especially in monastic communities, believe that ecumenism implies that Orthodoxy has abandoned its claim to represent the one true church. Even referring to non-Orthodox Christians as “churches” can cause controversy.

In its declaration, “Relations of the Orthodox Church with the Rest of the Christian World,” the Council adopted (with all respect) a rather lawyerly solution. Yes, the document indicates, there is only one true church, and that is the Eastern Orthodox Church. But “the Orthodox Church accepts the historical name of other non-Orthodox Christian Churches and Confessions that are not in communion with her and believes that her relations with them should be based on the most speedy and objective clarification possible of the whole ecclesiological question.” In other words, the Council accepts that, historically, other Christian communions have been called “churches” (some of them, even, have been called “Orthodox Churches”!) and will work to clarify the situation. It’s an irenic statement. We’ll see how it is received, especially by those within the Orthodox fold who do not think clarification necessary.

Notwithstanding this hedging on the “ecclesiological question,” the Council did go out of its way to decry the persecution of Christians, Orthodox and non-Orthodox, in the Mideast today. In fact, it condemned the persecution of other religious minorities in the Mideast as well. The encyclical issued at the conclusion of the Council states, “The Orthodox Church is particularly concerned about the situation facing Christians, and other persecuted ethnic and religious minorities in the Middle East. In particular, she addresses an appeal to governments in that region to protect the Christian populations – Orthodox, Ancient Eastern and other Christians – who have survived in the cradle of Christianity. The indigenous Christian and other populations enjoy the inalienable right to remain in their countries as citizens with equal rights.” The Council refers to two Christian bishops, one Eastern and the other Oriental Orthodox, who were abducted two years in Syria and whose whereabouts are still unknown.

The Council’s official documents also speak about human rights generally, demonstrating, once again, how important the idiom is in contemporary debate. Today, everyone from secular lawyers to church patriarchs declares a commitment to the ideal of “human rights,” based in the concept of “human dignity.” It is the price of admission to polite discussion. But the Council’s documents reveal, once again, how differently people understand those terms. In today’s human rights discourse, people use the same words, but mean very different things.

The Council’s official documents are not always so easy to follow, but, taken together, they stand for these propositions: human dignity derives from the fact of divine creation; human freedom, correctly understood, is the freedom to progress toward spiritual perfection in Christ; and a secular understanding of human rights, which promotes Continue reading

Roundtable on “Christian Human Rights”

For readers who are interested, the H-Diplo Roundtable Review has published my essay 1716on Harvard Law Professor Samuel Moyn’s provocative recent monograph, Christian Human Rights (2015), as part of a roundtable discussion of the book. Along with Moyn, the other participants include Martin Conway (Balliol College Oxford) and David A. Hollinger (Berkeley).

Here’s snippet of my essay:

Similarly, Moyn’s reflections about whether contemporary human rights can improve upon Christianity as a moral movement, with which he ends the book, are misguided. Christianity offers human rights important lessons, he says. Institutionally, the religion has been a great success. But spiritually it has been a failure: it has not improved the souls of people who call themselves Christians. As a result of this failure, he says, Christianity has been forced to retreat into “opacity and mysticism” (180). Human rights must do better. It must, according to Moyn, actually change things in this world, or else it will be just another futile faith.

These remarks are rather dismissive of Christianity. More important, they reflect a fundamental misunderstanding – a category error. Christianity is not a moral movement in the way human rights is. It does not promise people a more perfect world; it offers them salvation. That has been the essence of its appeal across millennia and its appeal today – no longer in Europe, perhaps, but across the global South, where Christianity is experiencing explosive growth. Human rights, which is a political program, can never expect to have Christianity’s place in people’s lives. I am reminded of Talleyrand’s famous answer to an earnest revolutionary who asked him for advice on how to start a new, enlightened religion to replace Christianity: ‘I recommend that you be crucified and rise again on the third day.’

And Moyn’s response:

From a Christian perspective, Mark Movsesian goes very far in welcoming this project, and not at all selfservingly — since he is ready to agree that many Christians embraced human rights more recently than some would today like to believe. I would only comment that he may have misread my epilogue, which is not at all intended to be critical of Christianity as a faith, though I recognize that temptation as an outsider. Rather, my point was that the deepest Christians have always known that Christianity itself demands constant public reflection on its own failure — a practice in which even the best human rights activists may have learned to engage far too slowly. Further, it is out of respect for Christianity as ultimately a faith movement – a faith, as Movsesian points out, based on belief in Jesus Christ’s resurrection to begin with – that I distinguish human rights as a movement that has to be held to different standards. Unlike Christians, that is, these believers have to face failures and limitations without relying on the expectation that human rights work in mysterious ways. Yet these differences hardly imply that Christianity and human rights are entirely disanalogous either. Whatever else Christianity was and is, it is a moral vision, and – as both Barnett and Hollinger agree — the methods of its partisans in inculcating that vision seem to me profoundly relevant to any other moral agenda. Beyond whatever strictly historical contributions to rethinking the 1930 and 1940s birth of human rights it makes, my book, I hope, reminds secular progressives that Christianity remains the social movement to beat.

You can read the entire roundtable here.

“Religion as Empowerment” (Topidi & Fielder, eds.)

In May, Routledge will release “Religion as Empowerment: Global Legal Perspectives,” edited by Kyriaki Topidi (University of Lucerne) and Lauren Fielder (University of Texas).  The publisher’s description follows:

This volume shows how and why legal empowerment is important for those exercising their religious rights under various jurisdictions, in conditions of legal pluralism. At routlogothe same time, it also questions the thesis that as societies become more modern, they also become less religious.

The authors look beyond the rule of law orthodoxy in their consideration of the freedom of religion as a human right and place this discussion in a more plurality-sensitive context. The book sheds more light on the informal and/or customary mechanisms that explain the limited impact of law on individuals and groups, especially in non-Western societies. The focus is on discussing how religion and the exercise of religious rights may or may not empower individuals and social groups and improve access to human rights in general.

This book is important reading for academics and practitioners of law and religion, religious rights, religious diversity and cultural difference, as well as NGOs, policy makers, lawyers and advocates at multicultural jurisdictions. It offers a contemporary take on comparative legal studies, with a distinct focus on religion as an identity marker.

Ostovar, “Vanguard of the Imam”

Next month, the Oxford University Press will release “Vanguard of the Imam: Religion, Politics, and Iran’s Revolutionary Guards,” by Afshon Ostovar (Johns Hopkins University).  The publisher’s description follows:

Iran’s Revolutionary Guards are one of the most important forces in the Middle East today. As the appointed defender of Iran’s revolution, the Guards have evolved into a book coverpillar of the Islamic Republic and the spearhead of its influence. Their sway has spread across the Middle East, where the Guards have overseen loyalist support to Bashar al-Assad in Syria and been a staunch backer in Iraq’s war against ISIS-bringing its own troops, Lebanon’s Hezbollah, and Shiite militias to the fight. Links to terrorism, human rights abuses, and the suppression of popular democracy have shrouded the Revolutionary Guards in controversy.

In spite of their prominence, the Guards remain poorly understood to outside observers. In Vanguard of the Imam, Afshon Ostovar has written the first comprehensive history of the organization. Situating the rise of the Guards in the larger contexts of Shiite Islam, modern Iranian history, and international affairs, Ostovar takes a multifaceted approach in demystifying the organization and detailing its evolution since 1979. Politics, power, and religion collide in this story, wherein the Revolutionary Guards transform from a rag-tag militia established in the midst of revolutionary upheaval into a military and covert force with a global reach.

The Guards have been fundamental to the success of the Islamic revolution. The symbiotic relationship between them and Iran’s clerical rulers underpins the regime’s nearly unshakeable system of power. The Guards have used their privileged position at home to export Iran’s revolution beyond its borders, establishing client armies in their image and extending Iran’s strategic footprint in the process. Ostovar tenaciously documents the Guards’ transformation into a power-player and explores why the group matters now more than ever to regional and global affairs. The book simultaneously serves as a history of modern Iran, and provides a crucial and engrossing entryway into the complex world of war, politics, and identity in the Middle East.

Jacoby, “Strange Gods”

In February, Pantheon published “Strange Gods: A Secular History of Conversion,” by Susan Jacoby. The publisher’s description follows:

In this original and riveting exploration, Susan Jacoby argues that conversion—especially in the free American “religious marketplace”—is too often viewed only51pkelrrjcl within the conventional and simplistic narrative of personal reinvention and divine grace. Instead, the author places conversions within a secular social context that has, at various times, included the force of a unified church and state, desire for upward economic mobility, and interreligious marriage—the latter as critical in the early Christian era as in the United States today, where half of Americans have switched faiths at least once in their adult lives. The sometimes tragic, sometimes inspiring story is shaped by the competing absolute truth claims of Catholicism, Protestantism, and Islam and their impact on Jews—the only monotheistic believers with an older historical stake. Moving through time, continents, and cultures—dealing with the often-ignored forced conversion of American slaves to Christianity as well as with the better-known story of the Spanish Inquisition and the persecution of both atheists and Christians in modern Islamic theocracies—the story also includes conversions to authoritarian secular ideologies, notably Stalinist Communism, that resemble traditional, unquestioning faith. Finally, the author examines true religious choice—a product of the Enlightenment pioneered by the U.S. Constitution. This history is punctuated by portraits of individual converts, including the Catholic Church father Augustine of Hippo; the German Jewish convert to Catholicism Edith Stein, murdered at Auschwitz and canonized by the church; boxing champion Muhammad Ali, who scandalized white Americans in the 1960s by becoming a Muslim, and even politicians such as George W. Bush and former British prime minister Tony Blair. In a forthright conclusion to this enthralling history, Strange Gods takes on the question of why the freedom to choose a religion—or to reject religion altogether—is a fundamental human rights issue that remains a breeding ground for violence in areas of the world that never experienced an Enlightenment.

Lyall, “Church and State in Scotland”

In April, Routledge will release “Church and State in Scotland: Developing Law,” by Francis Lyall (University of Aberdeen).  The publisher’s description follows:

The interaction of faith and the community is a fundamental of modern society. The first country to adopt Presbyterianism in its national church, Scotland routlogoadopted a system of church government, which is now in world-wide use. This book examines the development and current state of Scots law. Drawing on previous material as well as discussing current topical issues, this book makes some comparisons between Scotland and other legal and religious jurisdictions. The study first considers the Church of Scotland, its ‘Disruption’ and statutorily recognised reconstitution and then the position of other denominations before assessing the interaction of religion and law and the impact of Human Rights and various discrimination laws within this distinctive Presbyterian country. This unique book will be of interest to both students and lecturers in constitutional and civil law, as well as historians and ecclesiastics.

Bielefeldt et al, “Freedom of Religion or Belief”

In March, the Oxford University Press will release “Freedom of Religion or Belief: An International Law Commentary,” by Heiner Bielefeldt (United Nations Special Rapporteur on freedom of religion or belief), Nazila Ghanea (University of Oxford), and Michael Wiener (Office of the UN High Commissioner for Human Rights and University of Oxford).  The publisher’s description follows:

Violations of religious freedom and violence committed in the name of religion grab our attention on a daily basis. Freedom of Religion or Belief is a 9780198703983key human right, the International Covenant on Civil and Political Rights, numerous conventions, declarations and soft law standards include specific provisions on freedom of religion or belief. The 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief has been interpreted since 1986 by the mandate of the UN Special Rapporteur on freedom of religion or belief. Special Rapporteurs (for example those on racism, freedom of expression, minority issues and cultural rights) and Treaty Bodies (for example the Committee on the Elimination of Racial Discrimination and the Committee on the Rights of the Child) have also elaborated on freedom of religion or belief in the context of their respective mandates.

Freedom of Religion or Belief: An International Law Commentary is the first commentary to look comprehensively at the international provisions for the protection of freedom of religion or belief, considering how they are interpreted by various United Nations Special Procedures and Treaty Bodies. Structured around the thematic categories of the United Nations Special Rapporteur’s framework for communications, the commentary analyses the limitations on the wearing of religious symbols and vulnerable situations, including those of women, detainees, refugees, children, minorities and migrants, through a combination of scholarly expertise and practical experience.

“Christianity and Freedom: Historical Perspectives” (Shah & Hertzke eds.)

In March, Cambridge University Press will release “Christianity and Freedom: Volume 1. Historical Perspectives” edited by Timothy Samuel Shah (Georgetown University) and Allen D. Hertzke (University of Oklahoma). The publisher’s description follows:

In Volume 1 of Christianity and Freedom, leading historians uncover the unappreciated role of Christianity in the development of basic human rights and freedoms from antiquity through today. These include radical notions of dignity and equality, religious freedom, liberty of conscience, limited government, consent of the governed, economic liberty, autonomous civil society, and church-state separation, as well as more recent advances in democracy, human rights, and human development. Acknowledging that the record is mixed, scholars document how the seeds of freedom in Christianity antedate and ultimately undermine later Christian justifications and practices of persecution. Drawing from history, political science, and sociology, this volume will become a standard reference work for historians, political scientists, theologians, students, journalists, business leaders, opinion shapers, and policy makers.

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