Human Rights are all the rage. They have become, currently, a very popular arena for both political activism and rampant discourse. Human rights, as we all know, are the rights humans are due simply by virtue of being human. But there is nothing simple here, since both “human” and “rights” are concepts in need of investigation.
One deep philosophical issue that invigorates debates in human rights is the question of their foundation and justification, the question “where do human rights come from, and what grounds them?” There are two essentially different approaches to answering that question — the religious way and the secular, or philosophical, way. Writing in The New York Times Magazine in 1993 (“Life Is Sacred: That’s the Easy Part”) Ronald Dworkin put this very succinctly: “We almost all accept … that human life in all its forms is sacred—that it has intrinsic and objective value quite apart from any value it might have to the person whose life it is. For some of us, this is a matter of religious faith; for others, of secular but deep philosophical belief.” A good representative of the first camp is the religious historian and educator R. H. Tawney: “The essence of all morality is this: to believe that every human being is of infinite importance, and therefore that no consideration of expediency can justify the oppression of one by another. But to believe this it is necessary to believe in God.”
The second, non-religious grounding of human rights, is harder to give voice to by a single representative since there is a multiplicity of distinct, non-religious groundings of human rights. But think again of Dworkin’s words. We all accept, he says, that human life is sacred. By using that word — sacred — he seems to have already put the ball in the religious field. And that field, the field of the sacred as opposed to the mundane, plays a straightforward game, claiming that the only possible answer to the question of the foundations of human rights is the religious answer. Only by positing a divine creator of everything (including human beings) can we give a satisfactory account of the sacredness of human beings, of why we “deserve” or “are entitled” to something that derives from our being just that — sacred human beings.
On this view, any highfaluting philosophical concept that is called upon to be a comparable base for human rights is no more than a religious foundation clothed in secular garb; it is really just God by any other name. Thus, in a recent book, The Idea of Human Rights, Michael Perry is unequivocal about the worthlessness of the secular bunch: “[T]here is, finally, no intelligible (much less persuasive) secular version of the conviction that every human being is sacred; the only intelligible versions are religious.” Think of conspicuous elements in the vocabulary of human rights, the notions of “dignity,” “inviolable,” “end in himself” and the like. Although we try to give them meaning and standing without a turn to religious essence, these terms hold no secular water according to thinkers like Perry. There can be no human dignity, no inviolable person, no end in herself, without the supposition of the human as sacred, and therefore as a godly creation.
There is, however, no philosophically robust reason to accept this claim. True, the religious answer is straightforward and clear-cut. True, philosophical theorizing on the foundations of human rights in particular, and morality in general, may be complex, or nuanced, or even convoluted. True, the word “sacred” carries religious connotations. But that could just be a manner of speaking — and dignity and inviolability certainly do not need to be tied down to the sacred.
Aristotelian virtue and natural justice or the Kantian categorical imperative (arising from reason, of course) offer philosophical bases for morality at large. Theories of human needs, human interests and human agency provide analytical foundations for the idea of human rights. And then there is Hart’s one natural right — the equal right to be free; Gewirth’s turn to human action and logic; Sen and Nussbaum’s talk of basic human capabilities, and oh-so-many others, all affording humanistic starting points for the human dignity at the base of human rights that need nary a wink at religion. There is also a legitimate and, to my mind, strong critique of the individualism guiding the liberal idea of human rights that enjoins us to rethink our mantras regarding the autonomous self who is the “human.” That these are intricate and sometimes problematic, that they might be in tension with, even contradict, each other, that we must do considerable analytic and philosophical work in their explication does not cancel out their equal profundity — equal to religion, that is — in justifying human rights.
What difference does it make? Beyond the theoretical discussions on human rights, — What grounds them theoretically? What justifies them theoretically? What legal implications do they carry theoretically? — there is the “so what?” question. Why do we care, or why should we care, if the practice of human rights is born of religious or secular motivation?
Take a look at how we work on the ground, so to speak; look at how we do human rights, for example, in Israel–Palestine. When Rabbi Arik Ascherman, the leader of Rabbis for Human Rights in Israel, squats in the mud trying to stop soldiers who have come to set a blockade around a village or fights settlers who have come to uproot olive trees (as he has done so often, in villages like Yanoun and Jamain and Biddu, in the last decade) along with me (from B’Tselem — the Information Center for Human Rights in the Occupied Territories), or a group of secular kids from Anarchists Against the Wall, or people from the Israeli Committee Against House Demolitions — and he does this on a Friday afternoon, knowing full well that he might be courting religious transgression should the Sabbath arrive — does it matter that his reasons for doing so spring from his faith while the anarchists’ derive from their secular political worldview and B’Tselem’s and ICAHD’s from secular international human rights law? The end-product, the human rights activity, is similar, even identical; but the reason, the intention, the motivation for it are distinctly different. Does that matter?
I think it does. I dare say that religion, even when indirectly in the service of human rights, is not really working for human rights. Although there is recognition of the human as sacred, it is not the concept of rights that propels the religious person. For him, the human status of sacredness draws from divine creation and directive, from man (and woman) having been created in God’s image, and therefore has nothing to do with a human right. As Jack Donnelly says in “Universal Human Rights in Theory and Practice,” “ ‘Traditional’ societies…typically have had elaborate systems of duties…conceptions of justice, political legitimacy, and human flourishing that sought to realize human dignity, flourishing, or well-being entirely independent of human rights. These institutions and practices are alternative to, rather than different formulations of, human rights”.
The question, we have seen, is what functions as the source of moral authority, assuming that “human rights” are morally based. Hilary Putnam, in “Jewish Philosophy as a Guide to Life,” says it beautifully: “Every human being should experience him/herself as commanded to be available to the neediness, the suffering, the vulnerability of the other person.” But notice Putnam’s terminology: “commanded.” Who commands us? The question boils down to who or what is the source of moral authority, God or the human being, religion or ethics? I want to say that that makes a great difference. And I want to ask: If we — the religious person and the secular person — end up engaging in the same activity and also, more so, do it by thinking of ourselves as available to another’s neediness, why does it make a difference?
The problem arises not when we act together, but rather when we don’t. Or put differently, when we act together, the problem stays in the realm of theory, providing fodder for the philosophical game of human rights. It is when we disagree — about abortion, about capital punishment, about settling occupied lands — that the religious authority must vacate the arena of human rights. This is not to say that all religious people hold the same views on these issues or that secular persons are always in agreement (although opinion polls, for whatever they are worth, point to far more unity of thought on the religious side). It is rather that an internal, secular debate on issues that pertain to human rights is structurally and essentially different from the debate between the two camps. In the latter, the authority that is conscripted to “command” us on the religious side is God, while on the secular side it is the human, with her claim to reason, her proclivity to emotion, and her capacity for compassion. In a sense, that is no commandment at all. It is a turn to the human, and a (perhaps axiomatic, perhaps even dogmatic) posit of human dignity, that turns the engine of human rights, leaving us open to discussion, disagreement, and questioning without ever deserting that first posit. The parallel turn to God puts our actions under his command; if he commands a violation of human rights, then so be it. There is no meaning to human rights under divine commandment. A deep acceptance of divine authority — and that is what true religion demands — entails a renunciation of human rights if God so wills. Had God’s angel failed to call out — “Abraham! Abraham!” — Abraham would have slain Isaac.
There might seem to be a dogmatic anti-religiosity arising from my reluctance to admit religion as a legitimate player in the human rights game. I have been using “religion” all along in, you might say, a very conservative, traditional way. Philosophers of religion and anthropologists have opened up the study of religion to recognize a variety of religious experience, religion as a form of life, religion as a cultural framework, religion as a system of symbols, a religious phenomenology, etc. Adopting a certain view on religion or a specific definition of religion is hugely pertinent to how one sees human rights functioning in a religious context. Let me, then, make explicit the definition of religion at the root of my unrest: Religion is a system of myth and ritual; it is a communal system of propositional attitudes — beliefs, hopes, fears, desires — that are related to superhuman agents. This very common definition (recently recognized in academic circles as that of “The Dartmouth School”), along with several essential terms (“myth,” “ritual,” “communal,” “propositional”), asserts the unconditional “superhuman agents,” i.e., God(s), that are necessary for the divorce I espouse between religion and human rights. Other perceptions of religion that are “God-less,” would not, perhaps, suffer the same fate.
And, you may say, what about the wonder of religion, the majestic awe that encompasses the religious person when confronted by a spiritual revelation that motivates and “regulates for in all his life”? (This was Ludwig Wittgenstein’s “definition” of religion.) Can secular morals live up to that type of enchantment? Is there not something about secular rationalism that conduces rather to skepticism, fallibility and indifference than to the kind of awesome respect for the sacred human being that comes with religion? Here I have no choice than to turn to dogmatism — call it Kantian dogmatism: “Two things fill the mind with ever new and increasing admiration and awe, the more often and steadily we reflect upon them: the starry heavens above me and the moral law within me.” For some, the physics that runs the natural world and the ethics that provide for our moral sense are seen to be more ordinary than religious experience. I, on the other hand, can think of nothing more awe inspiring than humanity and its fragility and its resilience.