Human Rights, Religion and International Law

Kerry O'Halloran

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351188333
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

In this book Kerry O'Halloran analyses a subject of international interest – religion – and examines related contemporary issues from a human rights perspective. The book takes the view that while the impact of Islamic State violence has dramatically demonstrated the destructive power of religious extremism for contemporary western societies, there are also good grounds for the latter to examine the extent to which their laws and policies – nationally and internationally – are contributing to religion's currently destabilizing social role. It makes the case for a fuller understanding of the role of religion or belief and argues for a rebalancing of the functional relationship between Church and State both nationally and internationally.

Beginning with an overview of religion, including an examination of key concepts and constructs, the chapters go on to outline the international framework of related human rights provisions and note the extent of their ratification. It proceeds by identifying a set of themes – such as the Constitutional positioning of religion; law and policy in relation to secularism; faith schools; equality legislation and the religious exemption; and the tension between free speech and religion – and undertakes a comparative evaluation of how these and other themes indicate significant differences in six leading common law jurisdictions as illustrated by their associated legislation and case law. It then considers why this should be and assesses any implications arising.

This book will be of great interest to students and scholars in the fields of law, religious studies, political science, human rights and social policy.

Part I

Background

1 Concepts, constructs and parameters

Introduction

In 1958, on the 10th anniversary of the Universal Declaration of Human Rights (UDHR), Mrs Eleanor Roosevelt gave a speech to the United Nations (UN) in which she was at pains to stress that human rights were not abstract principles but were to be found:¹

in small places, close to home … they are the world of the individual person; the neighbourhood he lives in; the school or college he attends; the factory, farm, or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination.

In the 60 years that have since elapsed, the foundations laid by the UDHR have come to support an ever-growing body of national and international human rights law, together with equality and non-discrimination legislation and voluminous associated jurisprudence. Despite the varying national recognition given to human rights, and the enormous social changes that have occurred in the intervening years, the above observation of Mrs. Roosevelt remains accurate. As will become evident in the jurisdiction-specific chapters of Part II, it remains the case that human rights issues continue to arise with most frequency in everyday settings such as the workplace, high street or classroom. What she could not have foreseen, is the sheer volume and variety of such issues now impacting upon courts and regulators in all those jurisdictions.

In order to give a sense of perspective, this book begins with a brief overview of the historical background: the cultural heritage uniting the common-law nations and a snapshot of human rights, religion and the relationship between them as this might have been perceived around the time when the above speech was given. Having established a common baseline for the five Part II jurisdictions, the chapter then considers the role now played by such shared characteristics in these modern pluralistic societies. This involves a consideration of related policy developments.

The common-law cultural heritage

The legacy of cultural assets, bequeathed by England to the common-law nations that once constituted the British Empire, includes language, customs and associated social mores; Christianity; the common law and accompanying judicial system; parliamentary democracy; and methods of administration and governance. Of particular significance for present purposes is the bequest of Christianity as the institutional religion and its evolving role with the State.

Christianity, theocratic rule and moral imperatives

Theocratic rule provided the environment in which the relationship between Church and State was first formulated in England. When this was transferred by colonialism, it established the presumptive dominance of Christianity, its institutions and moral imperatives; a proposed structure for Church/State relationships; and a model for the social role of religion. As the Part II chapters illustrate, the way these relationships have worked out has distanced those jurisdictions from that initial model and, to some extent, from each other.

Marriage and family

Moral imperatives were always prominent in the law relating to the family: generally as regards marriage and procreation but particularly so in relation to sexuality; their importance to both Church and State was underpinned by transgressions – such as blasphemy or heresy – being labelled as a ‘sin’ by one and punished as a criminal offence by the other. As Lord Finlay LC commented in Bowman v. Secular Society Ltd., when reflecting on previous centuries of case law:²

It has been repeatedly laid down by the Courts that Christianity is part of the law of the land, and it is the fact that our civil polity is to a large extent based upon the Christian religion. This is notably so with regard to the law of marriage and the law affecting the family.³

He was quite clear that up until then the courts would have considered themselves bound by such principles when called upon to interpret the meaning of ‘religion’.⁴ The distinctively Christian dimension to those principles included: monogamous, heterosexual marriage for life; the sanctity of marriage to the exclusion of non-marital sex, any children thereof, and unmarried partnerships; the criminalisation of abortion, homosexuality and suicide; and the rejection of a Darwinian approach to the meaning of ‘life’. These principles now provide the grounds for those traditional religious beliefs that challenge the changes being driven by equality and human rights legislation.

What remained largely unseen but constituted the bulk of that Christian heritage was: the body of values, ethics and principles, distilled from the gospels and scriptures, ingrained and passed on from one generation to the next, that shaped a communal sense of right and wrong; a felt duty to demonstrate Christianity not just in ritual acts of worship but also through public good works as embodied in the law of charity⁵, which governed charitable action on behalf of neighbours and community; perhaps also attitudes of acceptance toward the status quo; and the freedom to privately pray, to make personal commitments of faith and atonement. This common morality imprinted on the nations concerned, over the centuries, a shared understanding of marriage and family, of actions that are sinful or virtuous.

Christianity and culture

The English language and associated social customs have always been the primary recognisable features of the bonds that unify this most developed group of common-law jurisdictions. Among the other more conspicuous aspects of their shared culture is the mosaic of Catholic and Protestant churches that have spread much the same web of parishes, ministers/priests and parishioners across the common-law jurisdictions. These continue to be highly visible reminders of the Christian religion that forms the underpinning foundations of the common-law cultural legacy. The shared culture not only came to permeate archives of legislation, particularly family law, but was infused throughout the institutional infrastructure of schools, workplaces and health and social care systems and deeply affected all citizens – whether or not they were religious.⁶ The shared culture is clearly evident in centuries of cultural output – in literature, music, art and sculpture – and it developed to provide a shared cultural umbrella for the common-law jurisdictions presently being considered.

Governments in the common-law jurisdictions have traditionally sought to support and sustain their cultural legacy. Layers of statutes, accreted over the centuries, are saturated with assumptions specific to culture and religious heritage, invariably of a Christian nature. This was reinforced by legislating to: assert and protect emblems, icons, language and traditions; endorse related values and principles, and develop an aligned social policy; police boundaries; and safeguard that cultural identity from being swamped or eroded by unplanned immigration.

The ‘culture wars’

As the social cohesion provided by a shared Christian heritage has faded, there has been a tendency, at least in the developed nations, for this to be offset by groups forming to pursue their separate sets of morality-based interests. At best, relationships between these groups are tense, and at worst they can become confrontational – as in the current competition between the religious and the secularists, between fundamentalists and mainstream adherents, between the traditional organised religions, and between traditional religions and a proliferating and mutating range of new forms of belief. This reductionist tendency, responsible for proliferating ‘islands of exclusivity’,⁷ is now commonly referred to as ‘the culture wars’.

In its current phase, the phenomenon originated in the US, where it evolved from a number of morality-laden issues, including the death penalty, gun laws, abortion and homosexuality. These were often linked to ‘life’ and/or sexuality.⁸ The related moralising extended most recently to reach gay marriage, transgender matters, assisted death, genetic engineering, DNA patenting, cloning and stem cell research – issues which now constitute the heartland of the culture wars. There is little prospect of any retreat from these front-line issues and every likelihood of new fronts opening up; indeed, the indications in the US are that equality and anti-discrimination legislation is serving to drive a socially divisive pushback on areas such as gay marriage.

The culture wars matter, as the present writer has explained elsewhere,⁹ not only because of their social disruption but also because they seem to function as a proxy for clashes of religious beliefs. Religion in the jurisdictions being considered is becoming steadily more culturally sublimated: its characteristics are being nuanced and diffused throughout various public activities and forums – employment, education, health care and so on – rather than represented in institutional places of worship. The sublimation may then surface as in the form of an expedient artifice: religious discrimination, generated in fact by religion or belief, may be passed off as an objection to sexual orientation (e.g. the refusal of bakers with strong religious views to bake celebratory cakes for gay couples) or concern for animal welfare (e.g. an objection to the non-stunning of animals slaughtered for food). To a large extent, such ‘domestication’ of a traditionally polarising source of social unrest has served to defuse its potency: culture war sophistication gradually displacing overt religious discrimination and removing any excuse for sectarianism; a fluctuating agenda of moral imperatives substituting for blunt religious confrontation. However, because of this proxy role, the culture wars can intersect with human rights – mostly on issues where there is a fusion of sexuality and religion – when rights such as the freedom of expression may then be engaged.

The common law and the role of the judiciary

Prevailing in England since the 12th century, before being exported to its colonies, the common la...