Human v. Religious Rights?: German and U.S. Exchanges and their Global Implications [1 ed.] 9783666301995, 9783525301999

Citation preview

A. G. Roeber (ed.)

Human v. Religious Rights? German and U.S. Exchanges and their Global Implications

Human v. Religious Rights? German and U. S. Exchanges and their Global Implications

Edited by A. G. Roeber

Vandenhoeck & Ruprecht

Bibliographic information published by the Deutsche Nationalbibliothek: The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data available online: https://dnb.de © 2020, Vandenhoeck & Ruprecht GmbH & Co. KG, Theaterstraße 13, D-37073 Göttingen All rights reserved. No part of this work may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage and retrieval system, without prior written permission from the publisher. Cover image: Parallel texts of the US Bill of Rights and the German Fundamental Law. Penn State College of the Liberal Arts Typesetting: textformart, Göttingen | www.text-form-art.de Vandenhoeck & Ruprecht Verlage | www.vandenhoeck-ruprecht-verlage.com ISBN 978-3-666-30199-5

Contents

A. G. Roeber Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 A. G. Roeber Interview with Dieter Grimm . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Christof Breitsameter The Right to Die. Normative Patterns and Their Bioethical Implications . . . . . . . . . . . 29 Gayle E. Woloschak Human Subjects and Human Rights . . . . . . . . . . . . . . . . . . . . . 47 Michael J. Broyde Human Rights in Judaism Reviewed and Renewed. Education as a Prototypical Positive Human Right in Judaism . . . . . . . 59 Carl J. Bon Tempo Refugees and Human Rights in the Post-World War II United States . . . 77 Michael Reder The (Global) Sphere of the Political. Critical Views on Habermas’ and Rorty’s Concepts of Religion and Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Hans-Georg Ziebertz Human rights and the concept of dignity: an empirical perspective . . . . 103 Roger Finke and Dane R. Mataic Recent Findings on Religious Freedoms: A Global Assessment and American Update . . . . . . . . . . . . . . . . . 127 Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

A. G. Roeber

Introduction This volume explores  a trans-Atlantic dialogue on the origins and shifting meaning of human rights. Understanding the historical development of this term directly impacts a question taken up from different disciplines by the contributors: are individual human rights to be understood primarily as “affirmative” (the overall German tradition and understanding) or “negative” i. e. protective against abuse by state power (the American legal and constitutional tradition)? The contributors examine the question of where  a commitment to human rights now exists in both the United States and Germany. Both of these nationstates represent on-going experiments in liberal representative democracy. It has become increasingly obvious during the first years of the Trump administration that the post-World War II world order to which both of these countries have long been committed appears to be in serious jeopardy. Various forms of populist nationalism, irredentist myths of racial and ethnic identity, and a growing dissatisfaction with global trade, late capitalism, and the on-going imbalance of consumption of resources by First World peoples all have cast doubts on liberalism’s future. With regard to Germany and the U. S., strains in the Post-War relationship have re-enforced the commitments on the part of many Germans to defending what has been built up in the aftermath of Germany’s national catastrophe. Two statements have appeared that signal the determination of German leaders to maintain a world order threatened by the rise of various authoritarian regimes. Some have emphasized the importance of Europe’s collective defense of that world order, a defense in which Germany will have to take a leading role.1 Despite the dismay felt by the majority of Germans (and an increasing number of Americans) at the lack of leadership shown by the American president,  a group of leading intellectuals and political figures insisted that Germany had no choice but to continue finding ways of maintaining its alliance with Americans committed to the vision of human dignity, rights, and responsibilities crafted over the past 70 years.2 As is always the case when scholars attempt to grapple with contemporary issues, events in Germany, the U. S. and globally move with such rapidity that 1 Nienaber, Michael: “Europe must do more to defend liberal world order—Germany’s Schaeuble,” in: Reuters¸ 20. Juni 2017. https://www.reuters.com/article/us-germany-europe-​ schaeuble-idUSKBN19B30C, accessed 21.03.2018. 2 Berger, Deidre / Bindenagel, James D. / Fücks, Ralf / et al.: “In Spite of It All, America: A Trans-Atlantic Manifesto in Times of Donald Trump—a German Perspective,” in: The New York Times, 11. October 2017. https://www/nytimes.com/2017/10/11/world/europe/ germany-united-states-trump-manifesto.html, accessed 21.03.2018.

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even a timely appearance of these essays can hardly keep abreast of the debates over what is meant by human rights. Moreover, contributions and insights into how human and religious rights complement or are in tension with one another continue to appear, and sometimes, from surprising and unexpected sources. The interest in those tensions, seen from  a German perspective, has turned toward Eastern Europe and especially Russia in recent years. The essays produced from a 2010 conference held in Erfurt addressed the difficulty Christians from both Protestant and Catholic perspectives have encountered as criticism of individual human rights continues to emerge from Russian Orthodox, and other “eastern” Christian sources.3 Yet the Orthodox bishops of Germany have more recently issued a letter addressed to German youth on issues of love, sexuality and marriage that opens with statements that can only be interpreted as forceful endorsements of human rights claims. In that address, the German Orthodox hierarchs praise the fact that “we live in a country in which the individual has the opportunity to develop in freedom and dignity … the fact that we live in Germany, where peace, freedom, democracy and human rights are taken for granted, can be considered as God’s blessing.” In the face of growing intolerance and “religious extremism,” the bishops call upon the German Christian youth they are addressing “to do all in our power to defend those values … man was made in the image of God (Gen 1:27). In the ability of human beings to decide for themselves, we see one of the characteristics of this divine image.”4 Similarly, in response to the violence that erupted in Charlottesville, Virginia in August, 2017, Orthodox Christian bishops in the U. S. not only condemned racial bigotry and white supremacist ideology but identified claims of racial or national supremacy as heresy. That false teaching, in their choice of language, however, was not cast in terms of human “rights” but rather revealed that such persons “betray the core human values of love and solidarity.”5 Even to acknowledge the comments of religious leaders, however, leads us into an aspect of human rights discussions that reveal some substantial differences between the German and the American way of thinking about rights. As both Germany and the U. S. receive arrivals from parts of the world not identified with Judaism, Catholic, Protestant, or Orthodox Christianity, and as the number of 3 Makrides, Vasilios N. / Wasmuth, Jennifer / Kube, Stefan (eds.): Christentum und Menschen­ rechte in Europe. Perspektiven und Debatten in Ost und West, Frankfurt-am-Main 2016. For an English-language review, Roeber, A. G.: Review of Ders., in: Theologische Revue 112/6 (2016), 502–503. 4 Orthodoxe Bischofskonferenz In Deutschland: A Letter from the Bishops of the Orthodox Church in Germany to Young People concerning Love-Sexuality-Marriage, 12. December 2017, http://www.obkd.de/Texte/Brief%20OBKD%20an%20die%20Jugend-en.pdf, accessed 02.03.2018. 5 The Assembly of Canonical Orthodox Bishops of the United States of America: Response to Racist Violence in Charlottesville, VA , 18. August 2017, http://www.assemblyofbishops. org/news/2017/response-to-racist-violence-charlottesville-va, accessed 22.03.2018.

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both Germans and Americans increases that do not identify with any particular religious tradition, the integration of those voices into the debates over religious and human rights present the on-going challenge for both Germans and Americans, regardless of their religious commitments, or the absence of them. The creation in 2006 of the German Islam Conference, although intended to provide a point of contact between the German government and the growing Islamic communities, by 2014 fell into disrepute with some Muslims who claimed that only the most conservative voices of Islam were represented in the Conference. Attacks on the interpretation of Islam as compassion advanced by Mouhanad Khorchide, the director of the Centre for Islamic Theology at the University of Münster have provided sufficient evidence for some Muslims to conclude that anyone thought to be sympathetic to Jews, Christians, and the values of western liberal democracy will be attacked by Islamic voices hostile to all three. The German Constitutional Court’s 2015 decision to prohibit complete bans on the wearing of headscarves by Muslim women as well as rejecting a privileged standing for Christian symbols therefore has been interpreted as a victory for religious rights by some, and denounced by others as a capitulation to those in Islam hostile to discussions about the rights of women.6 Equally troubling, the renaissance of anti-Semitism in both Germany and the U. S. has given rise to a further discussion of whether in the German context this regression is home-grown, or stimulated by the anti-Jewish prejudices of immigrating Arab Muslims who do not understand how critical the rejection of anti-Semitism is for the integrity of Germany’s commitment to human rights and human dignity.7 In the U. S., the Anti-Defamation League has documented for 2017 the largest single-year increase in anti-Semitic incidents on record, the only consolation in the report being the support of both Christians and Muslims to help repair vandalized Jewish cemeteries.8 And this troubling evidence has now been dwarfed by the appalling attack on the Tree of Life Synagogue in Pittsburgh, Pennsylvania in October, 2018. Much has changed in how people understand human rights since the appearance in 1948 of the United Nations Universal Declaration of Human Rights. One 6 Topcu, Canan: Dispute About Prof. Mouhanad Khorchide: a Conflict of Many Layers, in: Qantara.de, 3. February 2014, http://en.qantara.de/content/dispute-about-prof-mouhanadkhorchide, accessed 22.03.2018. 7 For the Court’s decision, see Jones, Timothy: Constitutional Court Strikes Down Absolute Headscarf Ban, in: DW.com, 13. March 2015, http://www.dw.com/en/constitutional-courtstrikes-down-absolute-headscarf-ban/a-18313377, accessed 22.03.2018. On the concerns over resurgent anti-Semitism, Heneghan, Tom: Germany Worried About ‘Imported AntiSemitism’ After Immigrant Protests, in: National Catholic Reporter, 10. January 2018, https://www.ncronline.org/news/world/germany-worried-about-imported-anti-semitismafter-immigrant-protests, accessed 23.03.2018. 8 Sullivan, Emily: Anti-Semitic Incidents See Largest Single-Year Increase on Record, Audit Finds, in National Public Radio (NPR), 27. February 2018, https://www.npr.org/org/ sections/thetwo-way/2018/02/27/589119452/anti-semitic-incidents-see-largest-single-yearincrease-on-record-audit-finds, accessed 23.03.2018.

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might argue that the initial purpose and origin of the modern focus on human rights sprang from the determination to prevent the abuse of individual and collective rights by state authority, and that a primary but not exclusive target of that document was the National Socialist regime of Germany. Although dominated by European and North American participants, the architects of the document who worked on the preliminary commission did include developing world members.9 Since the 1940s, what has changed is the understanding and focus of human rights that is not confined merely to a vastly expanded number of nation-states and peoples who were not present during the debates that swirled around the fashioning of that document. What has changed, instead, is how scholars from the predominantly European and North American nations who did contribute to the document read the remote as well as the more recent history of human rights. On both counts, a comparison of how German scholars and those in the United States interpret those histories provides the focus for this volume of essays. One can observe in the essays that follow questions such as: what distinguishes the German understanding of human rights and can that understanding inform both trans-Atlantic and global discussions of rights? What relationship exists between American and German understandings of rights? What can Americans learn from the German development of human rights understanding? Is it possible that where once American traditions and understandings of rights helped to inform post-1945 German focus on rights, that now, a reversal has taken place and Germany’s focus on a positive endorsement of individual rights has influenced not only American, but more global engagement with rights? And finally, does agreement exist that religiously based committments to individual human rights and dignity operate quite differently in the German as opposed to the American context—and if so, which understanding now reverberates most strongly beyond the borders of both of these liberal democracies? Readers will observe how these questions of whether and how the articulation and defense of human rights does or does not relate to the predominantly Catholic, Protestant, and Jewish influences on religious rights, influences that shaped the histories of both Germany and the United States and appear to be moving in different directions. Many recent assessments of the “origins” question of human rights have moved rather too quickly to dismiss the role of religious beliefs or values. With regard to the U. S., for example, some argue that the concern for protecting the sovereign rights of the individual states quickly led to an abandonment of a “universal” agenda for pursuing human rights. Instead, the emergence of the “individual” is the subject of “rights” but paradoxically, there “emerged a par9 For general surveys of human rights in the European and specifically German context, see Hunt, Lynn: Inventing Human Rights: A History, New York, 2008; Hoffmann, Stefan Ludwig: Introduction: Genealogies of Human Rights, in: Hoffmann, Stefan Ludwig (ed.): Human Rights in the Twentieth Century, Cambridge / New York 2010, 1—26; Wildenthal, Lora: The Language of Human Rights in West Germany, Philadelphia 2012.

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ticular American, individualistic and dualistic conception of human rights and the individual that was opposed to communistic and socialistic moralities and universalities.”10 But it was not an American, but rather a Lebanese philosopher and diplomat who in the preparatory work of the commission that produced the eventual United Nations document articulated this point of view, but insisted that it was not peculiarly American, but had global implications. The Lebanese Orthodox Christian Charles Malik had intended to pursue his doctoral studies in philosophy in Germany with Martin Heidegger but was forced to abandon those plans when he was attacked by Brownshirt thugs for his “semitic” looks. Later a faculty member in both in native Lebanon and the United States, Malik remained in contact with Heidegger until the latter’s death. Never doubting that Germany could be brought back into the company of nations who would defend human rights, Malik was nonetheless not certain that this could be the case with the communist bloc, nor was he optimistic that in the case of Islamic nations, the rights of conscience and freedom of religion would be defended as fundamental human rights.11 While acknowledging such geo-political contexts, German and U. S. scholars present very different assessments of human rights history, from the question of origins to present-day applications and implications. In his own striking reconstruction of the history of human rights, one that reflects the understandable focus especially of his own country, the German sociologist Hans Joas took up political science expert Susan Waltz’s identification of “four persistent myths that dominate popular understanding of the Universal Declaration of Human Rights … that the declaration was entirely a reaction to the Holocaust; that most of the work was done by the major powers of the United States, Great Britain, and the Soviet Union; that the text of the declaration was composed by a clearly identifiable individual; and that the success of the declaration is owed chiefly to the United States.”12 Other scholars have joined the chorus of those insisting that what emerged in 1948 represented the contributions of participants from the Global South as well, and therefore cannot be dismissed as “Eurocentric” or lacking in applicability to twenty-first century emergence of new nation states grappling with human and religious rights issues.13 10 Barsalou, Oliver: The Cold War and the Rise of an American Conception of Human Rights, 1945—48, in: Slotte, Pamela / Halme-Tuomisaari, Miia (eds.): Revisiting the Origins of Human Rights, Cambridge 2015, 362—380, 379. 11 For details, Roeber, A. G.: Orthodox Christians, Human Rights, and the Dignity of the Person: Reflections on Charles Malik (1907—1987), in: Journal of Eastern Christian Studies 70/3—4 (2018), 285—306. 12 Joas, Hans: The Sacredness of the Person: A New Genealogy of Human Rights, Washington, D. C. 2013, 182; Waltz, Susan: Reclaiming and Rebuilding the History of the Universal Declaration of Human Rights, in: Third World Quarterly 23 (2002), 437—448. 13 Sikkink, Kathryn: Evidence for Hope: Making Human Rights Work in the 21st Century, Princeton / Oxford 2017.

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Beyond the documented reality that a “diverse range of intellectual and cultural traditions” informed the Declaration’s language, Joas pointed out what he deemed to be even more significant. The members of the commission tasked to come up with a draft declaration made “the more or less conscious decision … to agree on an internally logical text but not on its derivation and justification.”14 That deliberate omission—one that bypasses a discussion of how religious norms, values, and doubts about human rights have shaped the history of the term—began to emerge as a key to understanding how differently German and U. S. scholars view the history of human rights. This apparent difference nonetheless exists within a shared set of values, those held by a constitutional and legal democratic republic whose experiment is more than two centuries’ old, as well as those articulated a year after the appearance of the Declaration for the newly-constituted Federal Republic of Germany in its “Basic Law” that has functioned as the constitution of the country ever since. One could argue that other European nation-states might appear to have had a longer and closer relationship to the United States and thus could be the focus of comparisons as well. In the case of France, however, the commitment to a policy of laïcité in negotiating the treacherous waters that surround that country’s history of an established church and a violently anti-religious Revolution make comparisons with the United States tradition especially difficult.15 In the intervening 70 years since the UN Declaration, the German experiment in democratic self- determination has emerged as an exemplary nation-state ally of the United States; the most successful economic leader in Europe, and at the same time, a country dedicated to a European—not a uniquely German—defense of human rights. That determination arose despite—or perhaps because—of Germany’s descent into inhumane deliberate rejection of the rights of “other” humans in the first half of the twentieth century. The United States has, in its own reflection on the issue of human rights also had to confront the violation of the rights of the First Peoples of North America, the enslavement of Africans, and repeated outbreaks of prejudice and violence against ethnic and religious minorities as well as a delayed discussion of how a commitment to human rights should inform questions of privacy that have become especially associated with debates surrounding human sexuality and gender. The United States and the Federal Republic remain quite different societies despite their respective commitments to versions of constitutional representative democracy and their endorsement of human rights. They bring to the question of what we mean by human rights somewhat shared, but distinctly different histories and perspectives. Studies of Germany’s own grappling with its past and the issue of human rights have created a burgeoning literature from a number of

14 Joas: Sacredness, 186. 15 For the French example, see Souillac, Genevieve: Human Rights in Crisis: The Sacred and the Secular in Contemporary French Thought, Lanham / New York / Oxford 2005.

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disciplinary perspectives on the history of human rights in Europe.16 The explosion of the “rights revolution” in the United States since the 1960s has created its own prolix literature that continues to expand as well, increasingly one that has focused on the issue of the right to privacy.17 But explicitly comparative studies looking at both of these nation states since the 1940s have been rare, even as the global discussion of human rights has shifted now to a focus on individual identity, with accompanying disputes that have emerged when calls for expanded rights claims for sexual minorities have clashed with religious understandings of the dignity of the human person perceived to be threatened by this continued expansion of rights claims. Despite the absence of an extensive comparative literature on human rights in Germany and the U. S., the study of the constitutional frameworks and approaches to questions of rights provides a useful starting point. No one has played a more significant role in making those comparisons than the former justice of the German Federal Constitutional Court, Dieter Grimm. The essays that follow begin with an interview in English Grimm suggested as the most profitable format for summarizing his own career as a constitutional expert on both sides of the Atlantic. Those who read German will already know of the published and extensive interview of Grimm conducted by the constitutional scholars Oliver Lepsius, Christian Waldhoff and Matthias Roßbach that document Grimm’s reflections on his long career that has included academic training and teaching at both German and U. S. law schools, as well as a seat on the German Constitutional Court.18 Two legal scholars—one German, one American—have contributed to the comparisons Grimm makes in his interviews. The core arguments of the arguments on religious and human rights advanced by Fabian Wittreck and John Witte, Jr. can be summarized in brief. The contrast between the two legal scholars highlights both some commonalities of approach on the part of an American legal-constitutional scholar, and those of his German counterpart. For his part, Wittreck presented a synopsis of his views on the relationship between Christianity and Human Rights in a lecture first given in Essen in 2011. Those remarks appeared in 2013 in print as Christentum und Menschenrechte.19 In that expanded lecture, Wittreck confronted two debates that as he explained, lie hidden in the conjunction linking Christianity “and” human rights. One debate has arisen if one asks about human rights “in” Christianity and is thus compelled to confront the possibility that 16 See the extensive and insightful review of some of this literature by Eichenberg, Julia: Sammelrezension: Geschichte der Menchenrechte, in: Hsozkult.de, 23. Dezember 2016, http://hsozkult.geschichte.hu-berlin.de/rezensionen/2016-4-201, accessed 23.12.2016. 17 Ziegler, Mary: Beyond Abortion: Roe v. Wade and the Battle for Privacy, Cambridge, MA  / ​ London 2018. 18 Grimm, Dieter: “Ich bin ein Freund der Verfassung”: Wissenschaftsbiographisches Interview von Oliver Lepsius, Christian Waldhoff und Matthias Roßbach, Tübingen 2017. 19 Wittreck, Fabian: Christentum und Menschenrechte, Tübingen 2013.

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Christianity has been historically “against” what eventually emerged in the twentieth century as “human rights.” But second, Wittreck argued, debate has continued to swirl about the question of the origins of human rights and whether Christianity contributed to their emergence. Although much of Wittreck’s concern focuses on the historically deep connection between throne and altar in both Protestant and Catholic contexts of the Holy Roman Empire and the sub­ sequent Austro-Hungarian and German Empires, his analysis of the relationship of Christianity and human rights comes to a blunt conclusion. On the whole, the historical record demands that Christians admit that “official Christianity fought bitterly against modern human rights and recognized only very late, that its own Holy Scripture did indeed provide a basis for a uniquely Christian theology of human rights.” It remained for more “worldly thinkers” to develop the emphasis upon individual human rights, the consequences of which the churches have only recently begun to engage.20 How would Fabian Wittreck’s analysis of the evolution of human, civil, and religious rights in Germany compare with John Witte’s argument? Wittreck’s lectures on Christianity and Human Rights that he delivered first in 2011 in Essen acknowledged as does Witte, the undisputed existence of at least tentative endorsements of individual human rights in both ancient Roman law and medieval western Christian debates. But Wittreck—like most of his German colleagues—remains more skeptical than Witte about the actual willingness on the part of Christian churches to engage with human rights claims. ­­Wittreck emphasizes that from the 18th century onward, Christians of the major confessions had to endure a rather painful learning curve as they confronted what they considered the excessive individualism of rights claims on the part of their opponents and critics, a criticism that scholars have traced to the French revolutionary tradition and the Declaration of the Rights of Man. Nonetheless, as W ­ ittreck turns to the Fundamental Law of Germany he sees in Article 2 on the protection of personal freedoms and the right to life and physical integrity a fairly easy connection to the Catholic Church’s teaching on the sanctity of life. ­Wittreck went on in his lecture to show that Catholic moral and social teaching, based in Roman law precedents, inform a good number of the protections set forth in Germany’s Fundamental law, including the protection of property, (Art 14) among several others. ­Wittreck recapitulated a survey of the constitutional tradition in Germany since 1848, explored the renaissance of natural law and then turned to the framework and development of the Fundamental Law in which he explored civil and human rights and religious rights as “equal “rights. By raising the question of whether we should describe religious freedom as a “hypertrophic” right, ­Wittreck touches upon the problem of expanding religious rights claims that conceivably could, whether intentionally or not, lead to a potential conflict with other rights that in the Basic Law proceed from its declaration of the inviolability 20 Wittreck: Christentum, 39.

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of human dignity and of “inalienable human rights as the basis of every human community….” Since much has changed not only in the German socio-political context since 1945, but in the global engagement with human rights, discussion continues in Germany to assess where religious rights fit into the “multi-level” manner in which the European community at large has developed its protection of various human rights. John Witte’s argument, which sets out to show the ancient and medieval roots of a commitment to rights talk including in embryonic form, individual rights, has been written largely in response to the conventional narrative he has outlined in several of his many publications.21 Witte wishes to argue that contrary to that narrative, religious teachings, and in his case, specifically, Christian teaching, has not been inimical to the growth in understanding what we mean by human rights. Thus, the conventional wisdom that has either located human rights in ancient pre-Christian Stoicism or regarded the gradual emergence of Renaissance insights and texts, and finally the French revolutionary assertions. The misrepresentation of Pico della Mirandola’s “Oration on the Dignity of Man” as a courageous act of rebellion against medieval Christian repression (when it is in fact a highly mystical treatise that combines Kabbalistic, Neo-Platonic, and explicitly Christian insights) could stand as a representative example of the narrative Witte wishes to challenge. In the last section of a forthcoming essay, Witte lays out the “Mapping of the Challenges” that face contemporary Christian scholars who are either themselves skeptical of the way in which secular notions of rights undermine Christian values—or who are faced with a dismissive attitude on the part of their non-religious colleagues who remain convinced that Christianity did nothing to advance, and a great deal to impede, the commitment to human rights. I can only endorse Witte’ assertion that “Christians should remain part of the broader public debates about human rights and public advocacy for their more expansive protection and implementation.” He speaks for many when he shares the concerns of Christian scholars in both the western and eastern version of Christianity who are rightly uneasy about “the reduction of rights claims to groundless and self-interested wish lists, the monopoly of rights language in public debates about morality and law, and the dominant liberalism of much contemporary rights talk…“ and that “some rights recognized today are more congenial to Scripture, tradition, and Christian experience than others.” It is therefore vital “to unpack the various types of claims and relationships that are typically herded under the category of ‘rights’ today, some of which rankle Christians, some of which are taken for granted.” The difference in tone and approach that marks Witte’s perspective as opposed to that of W ­ ittreck may stem from the former’s engagement with the American scholar Samuel Moyn who, although known in German academic 21 Witte, John, Jr.: The Contributions of Christianity to the Development of Western Rights, in: Witte, John, Jr. (ed.): Church, State, and Freedom: Toward a New Reformation of Rights (forthcoming), typescript in editor’s possession cited with permission.

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circles, has advanced an argument that one suspects W ­ ittreck might also find problematic.22 Samuel Moyn’s Christian Human Rights23 argued much along the lines W ­ ittreck sketched, that the Christian churches East and West came late to the project of human rights, having fought against the notion historically. But Moyn’s more controversial claim lies in his insistence that the late endorsement of a Christian notion of human rights came into being as a useful tool to prop up regressive, conservative regimes in the face of the threat posed by the Soviet Union and the spread of communism. In this, Moyn follows the conventional views of the origins of human rights against which Joas and others have entered their dissent. Both Witte, and the Armenian Orthodox legal scholar Mark Movsesian reviewed Moyn’s monograph, and while conceding some of his argument, rejected both his claim of a neo-conservative agenda behind Christian endorsement of human rights as well as his reduction of Christianity to a system of public and private morals. Moyn’s German collaborator Jan Eckel has analyzed the change in human rights thinking and claims during the 1970s with a more generous acknowledgement than Moyn’s about the important contributions made because of what he labels the “transformation of the Churches.” Eckel credits both Catholic and Protestant commitments to human rights, identifying the Second Vatican Council (1962–65) as “the starting point for much of what transformed the churches’ activism ….” But not only Catholics, but Protestant participants in the World Council of Churches “devoted increasing attention to issues such as economic inequalities and world hunger … this spiritual upheaval provided a fertile breeding ground for the adoption of human rights claims, and a vigorous drive for international justice more generally.”24 Both German and American scholars aware of Witte’s perspective would want first to ask whether, despite the undoubted presence of medieval and early modern textual arguments that do appear to advance some concept of individual human rights, we might nonetheless be justified in noting that most of these texts reflect the dominant clerical and secular hierarchy of those societies with very little thought being given to extending those rights to the lower or the marginal members of society. Witte is right to point to the famous debates at Valladolid over the enslavement of the First Peoples of the Americas, just as many would argue that the eventual decision of late Byzantine emperors to insist that slaves were not the exclusive property of their owners but in fact enjoyed some degree of the right of imperial protection. Nonetheless, neither development 22 Moyn collaborated with Jan Eckel of the University of Tübingen in publishing Moyn, ­Samuel / Eckel, Jan (eds.): The Breakthrough: Human Rights in the 1970s, Philadelphia 2013. 23 Moyn, Samuel: Christian Human Rights, Philadelphia 2015. For the reviews, see Movsesian, Mark: Religious Rights, in: First Things, Januar 2016, http://www.firstthings.com/ article/2016/01/religious-rights, accessed 21.03.2018; and Witte, John: Review of Samuel Moyn, Christian Human Rights (2015), in: Books and Culture 22/2 (2016), 22–24. 24 Eckel, Jan: The Rebirth of Politics from the Spirit of Morality: Explaining the Human Rights Revolution of the 1970s, in: Eckel / Moyn (eds.): Breakthrough, 226–259, 251.

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led to an end of slavery nor to recognition of human dignity and rights of the enslaved. If one thinks of the manner in which the Russian Orthodox Church came to be a defender and even at times a champion of serfdom, and in the West how notions of rights and liberty are integrally connected to the concept of property, it becomes easy to see why critics have suggested that Christianity in its institutionalized forms appears to have come very late in the game to seeing itself as the defender of the rights of the marginalized.25 That argument has been made eloquently by John Noonan’s A Church that Can and Cannot Change.26 But Witte does correctly point out that from time to time it was the institutionalized Church that could emerge as a challenger to claims of untrammeled royal or aristocratic power. That point has been made most eloquently in Ulrich Lehner’s most recent book that traces the ironic path of Catholic engagement with nearly all the contemporary streams of discovery in the areas of natural philosophy, political theory, and social and economic betterment proposals. Those engagements were arrested by the papacy’s clash with Napoleon, and although the papacy emerged as a quasi-heroic institution challenging the overweening power of an emperor, in the aftermath of Napoleon’s fall, Catholicism in the 19th century retreated into a reactionary posture symbolized by Pius IX’s “Syllabus of Errors” and repudiation of his youthful enthusiasm for liberal European reform movements.27 On the American side of the coin, it would seem fair to ask for a more direct confrontation with what many scholars have already noted: that until the postCivil War decades, discussion of rights in the American context hardly ever failed to couple rights claims to duties—to the nation, to fellow citizens, to God. The de-coupling of this crucial connection came about, in the opinion of many, not because of a religious failure to insist on this mutuality, but because of an increasingly secular dismissal by elite voices in politics, culture, and the law of norms of accountability on the part of the aggressively acquisitive leaders of economic liberalism.28 25 This is the main point advanced by Brett, Annabel: “Human Rights and the Thomist Tradition,” in: Slotte, Pamela / Halme-Tuomisaari, Miia (eds.): Revisiting the Origins of Human Rights, Cambridge 2015, 82–101, 101: “We have nothing to gain, and everything to lose, in translating the thought either of Aquinas, or of early modern Thomists, or of early modern natural rights theorists more generally, into the idiom of human rights. It is not only a historical mistake, but a philosophical dead end: for in closing the gap, we lose precisely what may be most suggestive for our own thinking on the subject.” 26 Noonan, John T., Jr.: A Church That Can and Cannot Change: The Development of Catholic Moral Teaching, Notre Dame 2005. 27 Lehner, Ulrich: The Catholic Enlightenment: The Forgotten History of a Global Movement, Oxford / New York: 2016. 28 For details, see Roeber, A. G.: Das Problem der Zwei-Reiche-Lehre in den USA , in: Otte, Hans / Kampmann, J. (eds.): Angewandtes Luthertum? Die Zwei-Reiche-Lehre als theologische Konstruktion in politischen Kontexten des 20. Jahrhunderts, Gütersloh 2017, 348–364.

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Finally, it would be important to see in more detail how Witte engages the Jewish ethicist whom he cites with approval in his work. Lenn Goodman’s pleas that we recognize what he calls “the profit of pluralism” in creating a forum where identity and commitments are both honored and real differences discussed. For any discussion of the tensions that have arisen between advocates of a secular human rights and those who wonder if religious rights can be reconciled to the expansion of secular demands, one can compare Goodman’s approach with that of the Washington University legal scholar John Inazu. Inazu also insists that Christianity has played and continues to play a crucial role in the discussion of rights. But Inazu is also realistic in pointing out that pluralism in the discussion of rights will continue to reveal tensions and conflicts in which the various proponents will have to find ways to respect profound disagreements on just such fundamental notions as human dignity, rights, and ethical behavior.29 In his reflections on how American scholars such as Witte have presented their arguments, Dieter Grimm has also observed that he wishes to see more differentiation on six points: a) between rights and fundamental rights; b)  between rights and privileges—the latter understood as exemptions from duties); c) intellectual roots of rights versus positive law; d) institutions versus individuals when we speak of rights; e) rights versus competencies or powers; f) legal systems and how they treat rights versus duties. One striking difference remains, as one surveys the published works on human and religious rights in Germany and the U. S.—the relative lack of emphasis German commentators have given to the role of religion—Christianity, both Roman Catholic and Protestant, but also Judaism—in assessing both the history of human rights as well as its possible future trajectory. American scholars, by contrast, assume a much larger role for religious norms and expectations in shaping the history of human rights since the 1940s. That difference in approach extends beyond the exchanges of the legal scholars and as readers will notice, appears again in the other disciplinary presentations that follow. Although the legal-constitutional presentations provide a framework for understanding how German and U. S. laws and institutions deal with human rights questions at a general level, the set of essays that comprise this volume focus first on bioethical, medical issues that have arisen most recently in the discussion of human rights. Here, both the essays and the discussions that have followed as this volume proceeded to publication revealed a genuinely surprising difference between U. S. and German topics of concern. On the one hand, Christof Breitsameter’s analysis of the “Right to Die” and the long-standing German revulsion at the thought of state-endorsed (or imposed)  euthanasia could easily find its counterpart in the debates on this topic among American ethicists. Nonetheless, Breitsameter recalls what has long been clear to legal and 29 Goodman, Lenn E.: Religious Pluralism and Values in the Public Sphere, New York 2014, 1; Inazu, John D.: Confident Pluralism: Surviving and Thriving through Deep Difference, Chicago 2016.

Introduction

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political scholars, namely, that the “cultural sphere” of continental as opposed to American thought has always been strikingly different since the continental tradition seeks to “find” law versus the Anglo-American tradition of “establishing” laws. In the American legal and constitutional context a “right” to die would appear to be an issue where the rights of individual privacy have long been balanced against the state’s determination to prevent undue influence from being exercised on patients that might end in their becoming subjects of involuntary euthanasia. As Breitsameter points out, however, the renaissance of natural law thinking in post-World War II Europe had no parallel in American law and debates about the “right to die” have progressed along very different lines, including the question of whether physician-assisted suicide is or is not protected by the Due Process clause of the U. S. Constitution. The rights of humans at the beginning of life—the rights of children to education—provides the focus of Rabbi Michael J. Broyde’s explication of why this concern for education of the young is of such critical importance among Jewish discussions of rights. But as Broyde explains in an extended note to his argument, rights are nested in duties that must be fulfilled not only at the level of the individual person but with a concern for how such balancing affects others. Although Jewish law is on the whole content to allow a state authority to oversee the protection of rights, that tradition also insists that sufficient means be made available to all in order that this balancing can be carried out in practice, and not merely in theory. Gayle Woloschak’s analysis of experimentation on human subjects, especially the new CRISPR technology, reveals just how difficult such questions of balance can become, especially as in this case, when a lack of attention paid to this issue has until quite recently been the case on the part of the German academy and press. Given the rejection of human rights violations in the form of euthanasia and medical experiments upon prisoners committed under Nazi Germany’s rule, the lack of focus on this latest and most dramatic area of experimentation and its human rights implications laid bare a surprising absence of shared attention between German and American ethicists. To the extent that the CRISPR technology has been the topic of comment among German academics and the press, this has been confined largely to reproducing or reporting on the issue that has surfaced first in American media and scholarship. An explicitly comparative analysis of German and American philosophers provides the basis for Michael Reder’s essay. By focusing attention on the works of Jürgen Habermas and Richard Rorty, Reder enables readers to gain additional insight into the sometimes stark differences of approach that have influenced German and American philosophers who have grappled with the evolving understanding of what is meant by human rights. A focused example taken from an issue of current concern on both sides of the Atlantic characterizes Carl Bon Tempo’s analysis of the origins of the human right to asylum. Bon Tempo’s analysis focuses our attention on the issue of refugees and the issue of asylum by emphasizing that both the political right and left seized upon the issue in the

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1970s in the U. S. context.30 Questions arise because of Bon Tempo’s as well as Michael Reder’s essays about whether the role of churches in both the U. S. and in Germany in the sanctuary and asylum movements need to be included in an analysis of how the discussion of the rights of asylum has developed in both countries. Reder speculates on whether Habermas’ later willingness to at least concede some role for religion in the “post-secular” world of rights discussions ever acknowledged the sanctuary movement since it is not clear in published writings that Habermas’ insistence upon religion adjusting itself to an “idiom” understandable to secular fellow-citizens is either necessary or perhaps even desirable in discussions surrounding the universalization of human rights, and the right of asylum in particular. Nonetheless, Habermas appears to have expanded his willingness to see some positive contribution of religious convictions in the realization of human rights where the late Richard Rorty seems to have remained convinced that the “selfcreation” notion of “religion” he was famous for cannot be adjusted to a role in the public sphere since religion blocks discussions in a secular society. If Rorty’s perspective is the dominant one in American philosophical circles, then once again it perhaps is important to ask whether Germany’s Basic Law sees a broader role for religion in discussing the nature of rights than did Rorty’s understanding of American pragmatism that remained focused on individual liberty and autonomy to a degree the German constitutional system and discussion of rights still finds alien? The explicit question of how and whether human rights and religious rights have emerged in tandem or in tension with one another provided the basis for analysis from the perspective of political scientists and sociologists. The essays by Hans-Georg Ziebertz and Roger Finke and Dane Mataic take up this challenging and complex question. Hans-Georg Ziebertz provides the most empirically detailed analysis of how a serious gap has emerged between the professed belief in the value of human dignity and what young Germans in particular actually demonstrate when “inherent” dignity is distinguished from dignity defined purely on the basis of “merit” or moral standing. Moreover, it is not clear that religious identification does not necessarily emerge as a reliable indicator of whether people support human dignity and political rights. Roger Finke and Dane Mataic, writing from a U. S. perspective, provide empirical data on the fate of religious freedoms in a global context. Perhaps most important among their findings is the documentation of the use of religious registration in both authoritarian and democratic regimes as a means of restricting and curtailing the rights of religious freedom. Religious freedom rights can be deployed to curtail other understandings of human rights, but it is the nature of how societies respond to religious pluralism that may emerge as the best predictor of 30 For a German analysis of the developments in international rights politics during the 1960s, see Werneke, Thomas: Die Stimme der Vernunft? Menschenrechtssprache als Teil des Politischen während des Ost-West-Konflikts, 1961–1973, Brüssel 2016.

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whether increased conflict, or an appropriate balance of human rights (including that of the right of religious freedom) will emerge in twenty-first century nation states. The essays presented here provide a context and background by which readers on both sides of the Atlantic and around the world can appreciate both the importance, and the complexity of these on-going challenges and debates about the nature of human and religious rights in the American, the German, and the global contexts, and their sometimes tense relationships to one another. I am grateful to the authors of the essays as well as to Professor Dr. Thomas Bremer of the University of Münster, to my colleague and long-time Co-Director of the Max Kade German-American Research Institute Daniel Purdy. Earlier versions of these essays were presented at an international conference “Rights—Human, Civil, Religious—in the Federal Republic of Germany and the U. S. Since 1948” sponsored and supported from funds provided by the Max Kade German-American Research Institute and the College of the Liberal Arts, Penn State University, March 23–25, 2017. I thank the College for permission to use the conference poster artwork as the basis for the cover of the book. I owe a debt of gratitude to Prof. Dr. em. Hermann Wellenreuther, Göttingen University, for facilitating contact with Vandenhoeck & Ruprecht, and to Prof. Dr.em. Knud Krakau, John F. Kennedy Institute, Free University of Berlin for suggesting Prof. Dr. Dieter Grimm as the keynote speaker for the conference. Dr. Jason Strandquist and Mr. Nicholas Capri both provided expert editorial assistance in preparing the final version of the volume. I also wish to thank Ingeborg Lüdtke, Daniel Sander and Kai Pätzke for their diligence and care in bringing the volume to publication with Vandenhoeck & Ruprecht. St. Louis, Missouri and Yonkers, New York

July, 2019

A. G. Roeber

Interview with Dieter Grimm Editor’s Note: This interview summarizes a keynote address and comments made by Professor Grimm for the international conference at The Pennsylvania State University “Rights—Human, Civil, Religious—in the Federal Republic of Germany and the U. S. Since 1948,” March 23–25, 2017. At his request, Professor Grimm summarized his address in the form of this interview and approved the following transcription before the present volume was published. 1. Professor Grimm, you have often observed in your writings for both German and American audiences that several distinctions needed to be made about how we use the term “rights.” You asked that we distinguish between rights and fundamental rights; on rights versus privileges (the latter understood as exceptions from duties); between intellectual roots of rights versus positive laws protecting rights; between institutions and individuals; between rights and competencies or powers; and finally between a legal system’s approach to rights versus that system’s approach to duties. Could you elaborate more fully on what you meant by raising these six issues? It is my observation from many interdisciplinary discourses with historians, social scientist and philosophers that the notion of rights, and, associated with it, the notion of freedom are used in an undifferentiated way, thereby obscuring major differences in time, meaning and effect and asserting continuity and identity where in fact discontinuities and differences exist. Thus, it is a fundamental difference whether “rights” are moral or natural rights or whether they are positive legal rights. Moral rights without legal recognition are philosophical findings or political postulates, but not law. They give the individual a moral, but not a legal claim. The legal order may be and often is the opposite of an order based on rights. Moral rights may then serve as a legitimacy test of political and legal systems or as justification for reform postulates or revolution, like in the American and the French Revolution. Every legally recognized right implies a certain freedom for its bearer. The bearer has a choice whether and how to use the right. But it makes a fundamental difference whether a legal order is based on rights or on duties. If a legal system is primarily based on duties, rights are either exemptions from duties—we may call them privileges, or they serve duties—we may call this functional rights. This is why the existence of certain liberties is not an indicator of general freedom. It was only the French Revolution that transformed the legal order of the Western world from a duty-based to a rights-based order. In such an order where rights

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take the first place, duties have to be justified in the light of the general claim to freedom. But duty-based systems have not disappeared. They persist in various parts of the world. If rights of individuals are recognized by law it makes a difference whether they are part of ordinary (statutory or common) law or whether some of the multitude of rights are guaranteed in the constitution. If they are part of ordinary law they bind public administration, but not the supreme power of the state, in particular not the legislative power. If they are recognized by constitutional law and thereby turned into fundamental rights they are also binding for the legislature (provided that the supremacy of constitutional law is fully acknowledged). There were no fundamental rights in this sense before the Virginia Declaration of 1776. It is true that, different from the Continent, England had a long tradition of rights, partly based on constitution-like documents, partly developed in common law. But they were not constitutionalized and thus not fundamental before the Civil Rights Act of 1998. But even now their fundamentality has not been fully recognized as the UK tried to reconcile fundamental rights with parliamentary sovereignty. The British Parliament retains the power to override a judgment of the Supreme Court which declares a legislative act in violation of a fundamental right. If fundamental rights exist, it makes a difference whether they are regarded as human rights or merely as citizens’ rights. Likewise, it makes a difference whether the bearers of fundamental rights are only individuals or also collectives. If collectives such as corporations or institutions have fundamental rights, this may (but not necessarily will) go hand in hand with non-freedom of the members. If rights are regarded as fundamental and thus binding also for the legislature, it makes a difference whether or not they can be enforced against the state organs. If there is no enforcement mechanism in form of constitutional adjudication or judicial review they are of little value. For a long time, fundamental rights were enforceable only in the United States. From a practical point of view, fundamental rights gained wide efficacy only with the establishment of constitutional courts or supreme courts with constitutional adjudication, i. e. in the second half of the 20th century. This is particularly important for human rights protection on the international level. The UN Declaration is not law. The various UN pacts are law for those states that signed them. But they lack an enforcement mechanism. They content themselves with a monitoring system. Different from the global level, enforcement mechanisms exist in stronger or weaker form in regional human rights pacts. But by far not all states are signatories of such pacts or don't submit themselves to the jurisdiction of the corresponding courts. And international organizations, even those promoting the protection of human rights, do not yet submit themselves to human rights. Finally there is a fundamental difference between rights and competences. A competence conveys discretion on its bearer. But it is a discretion serving a

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certain purpose and limited by that purpose. In a constitutional democracy, state actors have competences but not rights. 2. It appeared to many of us familiar with both your own work and that of other German legal-constitutional scholars such as ­Wittreck that you take  a more conservative position with regard to the role that ancient and medieval thinkers about “rights” have played in shaping what we today call human rights. John Witte’s arguments, by contrast, offers a reply or riposte to Samuel Moyn’s contention that Christianity has paid scant attention to human rights, and in the post-World War II context, did so only to employ the term as critique of Soviet-style communism. Would you comment on why German scholars appear to be less willing than their American counterpart to see a role for religion in having created a concept of human rights? I am unable to confirm or reject the contention that there is a difference between German and American scholars on the role of religion and of ancient and medieval thinkers in the emergence of the concept of rights. In Germany and even more so in France there was an intensive debate on the emergence of the concept of “subjective rights”. Was it already rooted in Roman law, did it come up in the medieval world or is it a modern phenomenon (Coing, Luhmann in Germany, Dabin, Roubier, Villey in France)? I myself do not doubt that the idea of rights has roots in Christian religion. But I cannot leave aside that the Catholic Church distanced itself from and even fought against the idea of fundamental rights for quite some time. Although Christian-democratic political parties participated in the formulation of bills of rights in postwar constitutions, the Church’s rejection ended only with the second Vatican Council. 3. Would you comment on the possibility that the German experience with a close linkage between a state or monarchical power and Catholic or Protestant Christianity has led contemporary German legal and constitutional scholars to be especially wary of claims that religion has played a significant role in the development of human rights thinking, in the German context? Would it be accurate to extend that same skepticism to European constitutional scholars in general, or is this a peculiar characteristic of German views on human rights? Again, I don’t know whether German legal and constitutional scholars are “especially wary” of claims that religion has played a significant role in the development of fundamental rights thinking. What can be said, however, is that the connection between “throne and altar” in Germany was an impediment to the recognition of fundamental rights. When they were recognized in the German constitutions of the 19th century (“constitutional monarchy”) they were not regarded as human rights. The German constitutions, even the democratic

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Paulskirchen-Constitution of 1848/49, which did not enter into force, rejected the natural law background of fundamental rights because natural law thinking was held responsible for the excesses of the French Revolution. Hence, this was less a reaction against the Church than against enlightenment and liberalism. The “historical school” that dominated the Paulskirchen-Assembly relied more on tradition (“Volksgeist”) than on philosophy. The exceptional role of “human dignity” in Germany’s postwar constitution, the Basic Law of 1949, had certainly Christian roots for the Christian-democratic members of the Parliamentary Council (“imago Dei”), but it was also embraced by the social democrats and the liberal members who may have been more inspired by Kant’s philosophy than by religion. The overwhelming support for elevating dignity to the highest rank in the Basic Law among politicians of various ideological traditions finds its main explanation in the atrocities committed during the Nazi-rule. Dignity, understood as absolute right, was the strongest response to the historical experience. 4. You have observed that there exists and that we need to acknowledge a phenomenon called “empty rights.” Some scholars have dismissed any notion of human rights that are not specifically guaranteed by law as “phony” rights. What, in your estimation, is the value of these “empty rights” when we approach the contemporary discussion of universal human rights? For me, “empty rights” are legal rights that are not enforced. The lack of enforcement may have different reasons. There are some rights that resist enforcement by their very nature. Until recently, the German Civil Code contained a right of spouses to “marital relations” (meaning sexual intercourse). It is difficult to imagine how such a right could be enforced against an unwilling spouse. Many constitutions contain social and economic rights. These rights are usually not directly enforceable because they depend on prior concretization as to who is entitled to what, and they depend in addition on the availability of the necessary means. Finally, there are rights that can be enforced and whose enforcement does not depend on the availability of material means (rights that oblige government to refrain from certain actions). Here it is lacking willingness if they are not enforced. Nevertheless, all these rights are recognized as positive rights, not only as moral claims. As such, they have an appellative value that exceeds a moral claim because of the legal recognition. He who relies on those rights enjoys a legally justified position, he who ignores them is in an unjustifiable position. This is not much, but it is more than nothing. Often empty rights were the starting point for gradual transition to enforceable rights. 5. Some disagreement exists between those who believed that as late as the eighteenth century, those who spoke of “rights” implicitly understood that “duties” always accompanied such rights. Others (such as yourself) argued that all western

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societies are driven by “rights” claims, and are not duty-driven since the latter notion appears to be grounded in religious convictions. Would you comment at more length on your position with regard to this issue? My position in this respect has no religion-skeptical reason and is not motivated by a duty aversion. It rather reacts to a frequent demand in German constitutional debate that the Bill of Rights of the constitution should be supplemented by a Bill of Duties. I think that this demand shows a misunderstanding of constitutions. Every polity is based on the subjection of the individual to state power. The state may command, the citizen must obey. This is inevitable, but dangerous for individual liberty. In order to mitigate the danger, the constitution grants individuals a number of fundamental rights which are distinguished from the multitude of rights that individuals have in a liberal society in that they limit state power including legislative power. They balance so to say the inferior position of the individual in whose interest public power has been established. Fundamental duties of the individual would undo this balance. Fundamental rights are counterweights against the state’s power to impose all sorts of duties on individuals. The state does not need an additional protection of its dutyimposing power, but the individual needs an additional protection against the superior power of the state. 6. In comparing German and U. S. constitutional traditions, which, in your opinion is more or less indebted to the “rights of man” articulated in the French Revolutionary tradition? The Fundamental Law of Germany appears to be more explicitly connected to an affirmation of the existence of God whereas the United States Constitution does not ground its discussion of rights in any religious conviction. Does the actual experience of the two countries in applying legal and constitutional principles suggest that in practice, they are quite similar—or do you see significant differences that can be explained by the respective origins of each country’s understanding of “rights”? It is true that the Basic Law in its preamble contains an invocation of God. But I cannot see that this invocation has had a direct influence on the formulation and impact of fundamental rights. However, in adopting the articles of the Weimar Constitution on the relationship between church and state, the Basic Law does not follow the laic French tradition. It is true that the state is obliged to respect religious freedom and to take a neutral attitude regarding religious beliefs and religious communities. But in the German understanding, this does not prevent the state from protecting religion and cooperating with religious groups and especially the churches. Apart from this, the understanding of fundamental rights in Germany as it finds expression in the jurisprudence of the Constitutional Court is much less individualistic and much more communitarian than the American understand-

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ing. Rights are not conceived as guaranteeing formal freedoms, but as substantive freedoms. They include the preconditions necessary for individuals to make use of their freedom. Furthermore, they are not only regarded as negative rights. They are also positive rights. As such they do not oblige the state to refrain from certain actions but to take action in order to protect fundamental rights when they are menaced by private actors. In certain cases, they may oblige the state to provide opportunities or material means to individuals who otherwise would be unable to enjoy a liberty granted by the constitution. In the same vein, they protect the function and specific logic of the various social systems like the economy, the media, scientific research, the art etc. against submission to the logic of other systems, be it the political or the economic system.

Christof Breitsameter

The Right to Die Normative Patterns and Their Bioethical Implications *

In this essay, I address human rights in the context of bioethics, from a theological, and a philosophical perspective. The context is limited to issues raised in both the United States and Germany since 1948, but the issues are of global significance that transcend the relationships between these two liberal democratic states. Systematic and comprehensive reflection on this issue remains challenging not the least from the fact that a mere 70 years have passed since the issue under examination first compelled the attention of those committed to the values of human rights. In terms of methodology, I first suggest we need to begin our inquiry by expanding the time frame in order to understand more long-standing normative patterns in both continental and Anglo-American scholarship on this question.1 We need first to establish a distinction between the continental and the Anglo-American, and then between the English and the American cultural sphere. I then turn to the examination of how and to what extent these cultural differences or normative patterns established throughout centuries can still be observed in bioethical debates. Given the restraints of an essay rather than an entire book, I therefore focus the debate on the “right to die,” i. e. physicianassisted suicide, active voluntary euthanasia, since this issue provides enough material for an analysis in terms of the history of thought. Finally, I attempt to draw systematic conclusions from those observations. First, it is necessary to specify what it means to speak of cultural spheres. In what follows I argue that, culture is established as a comparative term: speaking of culture is equivalent to an implicit or explicit comparison between cultures. In the case I intend to discuss, this comparison is applied to normative patterns, so that cultural spheres may be distinguished in a normative sense. As previously stated, I reconstruct three such normative patterns evident in the history of law: the continental, the English and the American cultural sphere.

* I would like to thank Richard Mathieu, Christoph Wagner and Lorenz Denks for helpful advice. 1 The term “normative patterns” encompasses the legal as well as the (philosophically and theologically shaped) ethical discourse.

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1. Continental and Anglo-American legal thought Continental legal thought is typically focused on a complete, consistent ordering of all aspects of society through applicably designed legal norms. This importance of norms that are designed for implementation is anything but trivial. This will become apparent once we turn to American legal thought, which proceeds in a less deductive, and rather inductive fashion. In continental legal thought, establishing law—the dominant approach in the Anglo-American cultural sphere, is subordinated to the natural law ideal of finding law. This preference for establishing law bears a scholastic imprint inherited from Roman and medieval European history and becomes clear in the notion that for every case, for every legal problem, there is an appropriate solution at hand, when the corresponding norm is applied (in case there is no such norm, it would have to be deduced from a general conception of justice).2 In modern times, this principle-bound legal thinking was maintained, insofar as there have been attempts to renew the Aristotelian-Thomistic theory of justice, even as the medieval natural-law background disappeared to a large extent. This applies to the period relevant for our topic, although one can discern periodic counter-tendencies (e. g. the USA , where the economic, social, and political convulsions of the 1930s and 1940s had led to a renaissance of natural law).3 West Germany experienced a shift towards another direction (comparable to American Neo-Positivism)4 in a trend opposing positions of natural law with legal positivism. In contrast, the English understanding of law is characterized by keeping the sphere of societal and social life as little obstructed by legal restrictions as possible. The law is viewed less as a guarantee and more as a threat to individual freedom. Therefore, the English tradition prefers avoiding legal generalizations, while thinking in specific cases and hence the method of establishing (rather than finding) law is paramount. This is why the model of natural law never gained a foothold in English legal thought.5 English scholasticism did not absorb the principles of continental scholasticism, which led to a criticism of natural law within the Anglo-American legal system, even if American legal thought, somewhat paradoxically, became more open to arguments established on natural law. The orientation of common law towards the method of establishing law, rather than finding law has entailed a certain turn towards positivism. In terms of quantity and significance, (statutory) law is inferior: In the United 2 Fikentscher, Wolfgang: Methoden des Rechts in vergleichender Darstellung, Bd. 2: Angloamerikanischer Rechtskreis, Tübingen 1975, 70 f. 3 See Koerner, Robert Lee: Modern Trends in Legal Theory, in: The Catholic Lawyer 3 (1957), 143–154; Patterson, Edwin W.: Jurisprudence: Men and Ideas of the Law, Brooklyn 1953. 4 See Hart, H. L. A.: The Concept of Law, Oxford 1961. Friedmann, Wolfgang: Law in a Changing Society, Berkeley 1959. 5 See Fikentscher, Methoden des Rechts, Bd. 2, 25.

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States, and more so in England, the focus lies on case law, and not on statutory law. In simple terms, statutory law infringes upon the prerogative of case law.6 English case-based law’s ability to adapt more readily to societal requirements than continental, principle-based law may be perceived as an advantage. However, with regard to the discussion I am addressing, law in England and Wales prohibited suicide until 1961.7 This conservative position can be ascribed to the peculiarity of common law, which is to develop slowly and on the foundation of often contradicting court rulings, which are usually not controlled by superior courts. The criminalization of suicide has a long history in the English legal tradition and until the 1960s had been perceived as an offense against God and the King.8 The tradition of English law for basing contemporary decisions on precedent could not be adopted entirely into the legal system of the United States, in part due to the vast plurality of jurisdictions. This is why a more general theory of law eventually developed in American legal thought by the early 20th century, with Benjamin Cardozo being a prominent example.9 Two levels of thought, one deriving specific norms from case law, general principles providing the other, characterize this theory of law. When there is no preceding ruling for a specific case, a rule is established on the grounds of one or a number of ruled cases, which then becomes pivotal for the unprecedented case. This rule, not the ruled case itself, is then identified as precedent. Above these relatively concrete case-bound rules stand the relatively general principles. A principle is the norm established on a number of precedents and is eligible to fill in gaps between rules. Principles are gained by generalizing rules. If there is no applicable rule for a specific case, such a rule can be deduced from principles. This procedure is not as equivalent 6 See ibid., 73–75. 7 This decriminalization of suicide in 1961 strongly affected the subsequent legislation on (physician)-assisted suicide and active euthanasia (not only in England and Wales, but other commonwealth-nations as well. In Ireland, both suicide and attempted suicide were prohibited by law until 1993, which may be attributed to religious influence). 8 The king was perceived as the sovereign over life and whose power would thus be partially detracted through a suicide, much like losing an asset. It could be argued that the monarchal reservation prevailed longer in English law, which would be rather speculative. More importantly, law established on the ruling of specific cases may better emulate the realities of life, but it also develops slower. One could cite the skepticism in English legal thought towards laws that invade the sphere of individual freedom. However, this would lack plausibility, as there actually was a law prohibiting suicide. See Neeleman, J: Suicide as a Crime in the UK : Legal History, International Comparisons and Present Implications, in: Acta Psychiatrica Scandinavica 94/4 (1996), 252–257, 254: “This information, obtained from the World Health Organization, is not available for all countries, and only applies to the situation up until 1975. The pattern is not entirely consistent, but it does appear that in countries influenced by English common law (e. g. England and Wales, Ireland, Hong Kong, and some US states), decriminalization was delayed. Moreover, legal and coroners’ involvement in suicide certification tends to be greater in those countries than in continental Europe and Scandinavia.” 9 See Fikentscher, Methoden des Rechts, Vol. 2, 9.

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to finding (pre-existing) law, but as to establishing law. By means of induction, precedents lead to the establishing of new principles. The American theory of law may be thought of therefore as English to some extent, but its thinking in the category of principles modifies the contrast between case law to statutory law in a rather continental fashion10—which also has ramifications for the 20th century debate in medical ethics.11 Despite a widespread and deep-rooted distrust towards the generalizations of natural law in American legal thought, the latter has been influenced by European natural law thought, especially since the 1940s. Interestingly, this influence raised a comprehensive discussion of positivism, which attempted to determine the relationship between legal positivism and natural law.12 As 10 The distinction American legal thought draws between statutory law, which confines common law and is therefore subject to narrow interpretation, and statutory law which fills gaps in common law and is therefore subject to a broad interpretation, cannot be attributed to English legal thought (with minor exceptions). Statutory laws are binding due to their parliamentary enactment, but they are only binding in in the way courts interpret them. American legal thought is influenced by case law, but also by the distinction between statutory law on the grounds of rules or principles. 11 For the relationship between case law and statutory law as well as between rule and principle within the medical ethical context, see Luce, John M. / A lpers, Ann: Legal Aspects of Withholding and Withdrawing Life Support from Critically Ill Patients in the United States and Providing Palliative Care to Them, in: American Journal of Respiratory and Critical Care Medicine 162/6 (2000), 2029–2032, 2029: “In the United States, the withholding and withdrawal of life support is legally justified primarily by the principles of informed consent and informed refusal, both of which have strong roots in the common law. The principles hold that treatment may not be initiated without the approval of patients or their surrogates excepting in emergency situations, and that patients or surrogates may refuse any or all therapies. The application of these principles to the care of the critically ill began in the Quinlan case, in which the New Jersey Supreme court held that a patient had the right to refuse mechanical ventilation, and that, because she was vegetative and could not exercise that right directly, her parents could act as surrogates for her. The California Court of Appeals took a similar approach in the Barber case, in which it held that physicians charged with murder hat not committed an unlawful act when, with permission from a patient’s family, the removed nutrition and hydration from a comatose patient. Although the principles presented in Quinlan and Barber are widely accepted, statutory and case law regarding the limitations of life-sustaining treatment vary from state to state. The issue of withholding and withdrawal of life support was first addressed by the U. S. Supreme Court in the Cruzan case, which involved a parental request to have a feeding tube removed from their vegetative daughter. The Cruzan lived in Missouri, which required specific evidence that an incompetent patient would want treatment withdrawn. In its decision, the Court allowed Missouri and other states to require ‘clear and convincing evidence’ of patients’ wishes and thereby potentially limited the role of surrogates in making decisions for incompetent patients without advance directives. Nevertheless, the Court accepted the principle that a competent person’s right to forgo treatment, including nutrition and hydration, is a liberty interest protected under the Fourteenth Amendment to the Constitution.” 12 Positivism and conceptions of natural law were not always perceived as opposites, as an application of law dealing with natural law positivistically is by all means conceiv-

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indicated previously, these developments are not exclusive. Even in England, one can find proponents arguing for the rules and principles approach. The influence of case-oriented legal thought, i. e. inductively establishing law on rulings, can be observed in Germany as well. Despite the rise of a 20th century endorsement of legal positivism in the U. S. between the two World Wars, one must not fail to see that the American legal tradition has been accompanied by a discussion of natural law as a superstructure of jurisprudence. This accessory phenomenon is founded in the Constitutional tradition of the United States, which adopted selected ideas from the natural law traditions found in various forms of the European Enlightenment as well as from Christian natural law conceptions, a discourse that enjoyed a renaissance in the United States after 1940 and in Germany after 1945.13 Probably, the specifically Christian components and those of the Enlightenment cannot be entirely distinguished from one another. On the other hand, there are certain tensions between them, because the ethics of autonomy, which the Founding Fathers had in mind, are better supported by the Protestant-Reformed version of natural law than that of Catholicism. However, the discussion in the second half of the 20th century avoided falling back into religiously defined natural law.14 Obviously, we need to be cautious about oversimplifications that describe continental law merely as deductive in principle and Anglo-American law as able. Rather, it is the critical stance on legal positivism that contrasted itself against positivism. This critical stance is not convinced of the justness of justice and thus needs persuasion. However, a positivist can be critical as well, when he questions given law, or when he applies or establishes law. Vice versa, a stance critical of given law can turn into an uncritical positivization of an ideal of justice, and thus evolve into a deductive procedure insensitive to context and disregardful of societal shifts requiring new laws. The advantage of critical positivism is the fact that it takes things as they are. The weakness of positivism consists in the fact that in the case of conflict, it is not clear if the facts perceived as relevant or the norm perceived as relevant is to be prioritized, because a fact can become norm and a norm can become a fact, the distinction between fact and norm thus dissolves. 13 For a German perspective, see Kaufmann, Erich: Grundtatsachen und Grundbegriffe der Demokratie, München 1951; Schüle, Adolf: Demokratie als politische Form und als Lebensform, in: o.A.: Rechtsprobleme in Staat und Kirche: Festschrift für Rudolf Smend zum 70. Geburtstag, 15. Januar 1952, Göttingen 1952, 321–344; Funk, Josef: Der Primat des Naturrechts: Die Transzendenz des Naturrechts gegenüber dem positiven Recht, Mödling bei Wien 1952; Kaufmann, Arthur: Die Ontologische Begründung des Rechts, Darmstadt 1965; Maihofer, Werner: Naturrecht oder Rechtspositivismus, Bad Homburg 1962. In Germany, a positivist counter-discussion arose as well, see Krawietz, Werner: Das positive Recht und seine Funktion, kategoriale und methodologische Überlegungen zu einer funktionalen Rechtstheorie, Berlin / Munich 1967; Krüger, Uwe: Der Adressat des Rechtsgesetzes—Ein Beitrag zur Gesetzgebungslehre, Berlin / Munich 1969; Noll, Peter: Gesetzgebungslehre, Bd. 37: Rororo Studium: Rechtswissenschaften, Reinbek: Rowohlt 1973. 14 For natural law-based legal approaches to the right to die, see Levy, Ken: Gonzales v. Oregon and Physician-Assisted Suicide: Ethical and Policy Issues, in: Tulsa Law Review 42 (2007), 699–729, 705.

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pragmatic and inductive. Anglo-American law also knows of broad legal rules. Where a methodically motivated abstention from general statements allows itself to be convinced, general rules are established. However, the principles of common law are always generalizations of rules, are thus more applicable to individual cases and are therefore closer to facts and circumstances than most prescriptions in the continental tradition of a legal code. We must bear in mind this summary of the different legal traditions when we begin to see how they have come to be applied to the question of suicide, when conceived of as a “right” to die. We should begin with the arguments formulated in the Anglo-American and continental cultural spheres after 1948. We should note that the notion of a “right” to die does not begin with the normative evaluation of physician-assisted suicide or active euthanasia, but with the evaluation of suicide itself although the “right to die” claim necessarily requires us to examine statements on the legal and ethical legitimacy of physician-assisted suicide.15 Our primary concern is not be on the outcome, i. e. the ethical verdict, but rather on the argumentative patterns in these debates. Our approach does not consist in reviewing the outcomes of the discussion of the right to die in different legal systems, nor in the determination of whether the arguments brought forth are legitimate or not. Rather, we are interested in analyzing the argumentative structure, which implies that outcomes can be identical even if the arguments on which they are based differ. By keeping our focus on the argumentative structure, we are then in a better position to see how and to what extent these whether the argumentative patterns correlate to the previously mentioned characteristics of continental and Anglo-American legal thought. At the same time, we need to analyze what relationship is being assumed between questions of justice and those of morality.

2. Is there a “right to die”?—A view on the American debate As one might expect, Anglo-American legal thought has informed the American debate, where one can expect individual freedom to be protected from unjust violations.16 An argument based on natural law (Leon Kass and Antonin Scalia) 15 See Dworkin, Gerald / Frey, Raymond G. / Bok, Sissela: Euthanasia and Physician-Assisted Suicide: For and Against, Cambridge 1998, 3: “We intend to argue that, under certain circumstances, it is morally permissible, and ought to be legally permissible, for physicians to provide the knowledge and / or means by which a patient can take her own life.” 16 For the purpose of our debate, see Harris, John: Consent and End-of-Life Decisions, in: Journal of Medical Ethics, 29/1 (2003), 10–15, 10: “The centrality of consent in health care is a function of the importance accorded to autonomy; and autonomy itself is part of our concept of the person because it is autonomy that enables the individual to ‘make her life her own.’ Choices are self-defining but also, they are self-creating. Although the importance of consent derives from our concept of the person, it’s procedural primacy in health care in the United Kingdom and the United States and some other jurisdictions is

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and another based on autonomy (Raymond Frey) will serve to exemplify this debate. Kass views the discussion on the right to die as a special case of the more general deliberation on whether it is permissible for a person to kill another upon their explicit request.17 Kass cites two arguments: (1) the autonomy of the patient to opt not only for the termination of treatment, but also for the intentional killing by a physician must be respected more than life itself, even if the physician recommends against this choice. According to this argument, there is a right to freedom to end one’s own life.18 (2) This approach does not imply that one views the life of a patient as not worth living anymore. This argument does not aim at the autonomy of the patient, but at the physical and psychological state allegedly justifying the killing. In this argument, autonomy, i. e. the motive of the patient, is replaced by compassion, i. e. the physician’s motive, which makes it appear justified to kill a patient as an act of benevolence.19 In Kass’ opinion, both arguments are opposed to the claim of medicine intrinsically bearing moral principles limiting the actions of a physician. Neither the motive of the patient, nor that of the physician is therefore relevant. According to Kass, the first argument is based on the notion of a contractual relationship: the physician is to provide the treatment of choice. In this argument, the physician’s actions are only limited by the patient’s will. The second argument is not based on the patient’s will, but the assumption that “the humane and compassionate motive of the physician—not as physician but as a human being—makes the doctor’s actions ethical.” Kass repudiates both models, stating that if they were legitimate, it could also be considered legitimate for a physician to have sexual intercourse with a patient, either on the basis of the explicit request of a patient (Model 1) or on the basis of the motive of the physician himself, who might argue intercourse to be an act of benevolence (Model 2). It is not only the argument that an objective value judgment (and not a subjective one, either on the side of the physician or that of owed to the common law tradition which protects individuals from assaults—unlawful touchings. … When considering the ethics of decisions to withhold or withdraw treatment we part company with the common law because the common law tradition, unlike, for example, many continental legal systems (notably that of France) which embody the civil law tradition, do not recognise a binding obligation to rescue or sustain life except where the law has specifically made such provision.” However, Harris emphasizes that—in contrast to American legal thought—a case can establish precedent ( 14). 17 See Dworkin / Frey / Bok: Euthanasia, 7: “Kass begins by considering‚ the question about physicians killing (as) a special case of—but not thereby identical to—this general question: May or ought one kill people who ask to be killed.” 18 Therefore, physicians are morally obliged (at this point, Kass unexpectedly focuses on “ought” although “may” would be an alternative) to fulfill the request of ending one’s own life. Whether a legal “must” can be established on the grounds of a moral “ought” is being omitted suggestively and not specifically addressed. 19 Whether this is an act of extended autonomy (e. g. in the case of severely demented patients) is not addressed. In the case of extended autonomy, the patient would be the one judging by means of an oral or written directive provided to the physician. In the case discussed by Kass, the physician is the one doing the judging of the patient’s life.

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the patient) forces a limitation on the physician’s actions that is quite remarkable. The method Kass employs to attain this position is equally striking. The first step of this reasoning consists in an enumeration of different actions of a physician: “If a patient wants to fix her nose or change his gender, determine the sex of his unborn children or take euphoriant drugs just for kicks, the physician can and will go to work.”20 This enumeration is intended to serve as a demonstration of the first model. Even at this stage, it is suggested that it makes a difference if a patient wants to fix her nose, change his gender or interferes in the sexual identity of his unborn child, let alone the request for a prescription of euphoriant drugs, although there is no medical indication. The will of the patient cannot make the difference, neither can the will of the physician, or at the very least this assumption appears to require such a conclusion. Kass does not provide further information, but resorts to an objective value judgment, which imposes restrictions befitting the medical profession. Here, the proximity to reasoning on the grounds of natural law is manifest. This becomes apparent in the example of a physician who would act from a motive of compassion and benevolence when his judgment concludes that a life is no longer worth living. For Kass, it is not about the subjective motives of the physician, but about an objective evaluation. In the case of sexual intercourse, it is about a subjective stance of the physician that is supposed to justify his actions. One might be inclined to refute that claim on the grounds that a physician can be mistaken regarding the well-being of a patient as can a patient with regard to his own, seemingly autonomous request, that instead has been induced from the authority of the physician. At any rate, Kass emphasizes the physician’s subjective point of view with this example, while he refers to an objective point of view in regard to the right to die. In his view, medical practice is “an inherently ethical activity, in which technique and conduct are both ordered in relation to an overarching good, the naturally given end of health.”21 It is stated explicitly, that alleviating pain and suffering are not the end or part of the end of medicine but can be viewed merely as by-products of medical practice.22 To speak of an overarching good or a naturally given end, namely the patient’s health, as a norm which governs the physician’s actions where he is urged to do 20 Both citations are taken from Kass, Leon: Neither for Love nor Money: Why Doctors Must Not Kill,” The Public Interest 94 (1989), 25–46, 28. 21 See Dworkin / Frey / Bok: Euthanasia, 12. He goes on to say that “[e]very profession, in Kass’s view, has a goal, and from the goal of medicine, which is health, we can ‘arguably … infer the importance of certain negative duties, formable as absolute and unexceptionable rules. Among these, I submit, is this rule: Doctors must not kill.’” 22 Dworkin himself appears to be unable to dismiss entirely this understanding, when he stresses that both aspects, namely choice and condition, legitimize a physician killing a patient. We can see how the presented cases are discussed between Kass and Dworkin, and it its Dworkin’s argument, that the distinctions drawn by Kass are methodically not correct. Also, the aforementioned switching from “may” to “ought” is carried out on the quiet, as Dworkin rightly comments.

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everything conducive to the patient’s health, indicates a normative background based on natural law.23 The motives named by Kass are loosely based on the Hippocratic oath. This way, specific motives are being contoured in contrast to unspecified motives. At this point, reasoning becomes speculation: a physician may be tempted to have sexual intercourse with a patient, but he is unlikely to be tempted to kill the patient. Should he feel this temptation nevertheless, there are justifiable rules protecting a patient from being killed against his will. Should the temptation to kill a patient coincide with the patients will to be killed, no ethical problem arises in regard to the fact that the physician is acting upon his temptation, given it is perceived as legitimate for a patient to be killed upon request. In this sense, the ethical core question is, whether a physician may, or maybe even must, kill a patient upon the patient’s request. Let us now turn to an argument in contrast to one influenced by any aspect of natural law thinking. Raymond Frey argues that different cases of physicianassisted suicide are conceivable, making it difficult to find a general ethical verdict. Nevertheless, a specific sort of case has been influential in the discussion: A competent, autonomous and informed patient who is terminally ill, asks his physician to provide him with a substance to terminate his life, and the physician has every reason to believe that that his patient is very likely to make use of the provided substance.24 A core aspect of this example lies in the question of whether the physician’s assistance, which provides the lethal substance, can be distinguished from active voluntary euthanasia. Clearly, the physician does not kill the patient directly as is the case in assisted suicide. But couldn’t it be possible, that he kills the patient indirectly? Therefore, the issue is, if there is a significant difference between a physician providing a lethal substance knowing that the patient is very likely to make use of it and cases in which the physician is unaware of this likelihood, possibly because he assumes that the lethal substance merely gives the patient the certainty to be able to end his own life in case of 23 The argument presented by Kass transitions from the general question whether a person may kill another person under certain conditions to the question whether a physician is permitted to do what the patient requests from him, and here requests typical for medicine are distinguished from unspecific requests. Presenting unspecific motives contributes nothing to the argument and could hence be omitted. The fact that unspecific motives are being yielded, illustrates that natural law reasoning is being imposed above the level of case-to-case reasoning. To evaluate specific motives, natural law reasoning needs to be introduced. 24 We are thus not dealing with a patient who has not been informed of possible alternatives, nor with a patient who is not terminally ill, nor a patient who has been coerced to commit suicide by his environment. At the core of the discussion stands the question if a physician is allowed to assist in the suicide of a competent, informed and terminally ill patient, who is requesting this assistance voluntarily, and who cannot be dissuaded by, e. g. a medicinal treatment of his depression. The pointed emphasis of this case consists in showing that if the action of the physician in this specific case cannot be considered legitimate, then no other case of a physician-assisted suicide is conceivable in which the action of the phy­sician can be called legitimate.

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emergency, or because the patient might in fact be psychologically incapacitated to actually commit suicide. Frey asks whether it can be argued that by intending the suicide of his patient, the physician indirectly becomes (a contributory) cause of his patient’s suicide? A physician providing the lethal substance for a suicide may intend his death (not if he is not convinced the patient will actually make use of the substance), but he doesn’t cause the death of his patient. To meaningfully constitute accountability, causation and intention both need to be present. Even if the patient is unable to terminate his life without the help of a physician, he himself causes his death. One can take into account the following cases: A dose of painkiller, administered to a patient to alleviate his pain, causes the death of that patient. To be more precise, it would be necessary to split this case into two aspects: If the body is debilitated to an extent where death occurs as a consequence of this dose, while the same dose would not have this effect on a healthy person, partial causation is to be assumed. If the patient’s body is still that of a healthy person, undivided causation is to be assumed. We will see that both the alleviation of pain as well as shortening lifespan need to be incorporated into the physician’s intention, so that there is no significant distinction between voluntary, active euthanasia, and indirect assistance. If this medical procedure is viewed as ethically justified, then being killed upon request or active voluntary euthanasia must be viewed as equally ethically legitimate, regarding both aspects, because the administration of a painkiller poses the cause which—possibly coactive with the weakening illness itself—ultimately causes death (without the painkiller, death would occur at a later stage). In physician-assisted suicide the patient is the final cause, whereas in active voluntary euthanasia the physician is the final cause of death, just as is the case in the life shortening administration of painkillers. Intention, one could argue, is the necessary, causation the sufficient condition for a moral attribution and accountability. If suicide is not viewed as ethically justifiable, likewise physicianassisted suicide is to be considered as ethically unjustifiable. If withholding or withdrawing medically indicated measures is considered appropriate, active voluntary euthanasia, physician-assisted suicide and especially so-called indirect euthanasia must likewise be considered appropriate.25 It becomes clear, that it is not the category of intention, but the category of causality that emerges as is a qualified tool for the distinction between the cases presented. With regard to the notion of causation, one might also speak of a rule that helps in drawing a comparison. The insight, that a notion is in fact a rule was first articulated by Immanuel Kant.26 If we wanted to compare all of the presented cases, the question arises whether an admissible point of reference can be found in the

25 See Emanuel, Ezekiel J.: Euthanasia: Historical, Ethical, and Empiric Perspectives, in: Archives of Internal Medicine 154/17 (1994), 1890–1901, 1893. 26 See Immanuel Kant, Kritik der reinen Vernunft, B 171 f.

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principle of autonomy. This being the case, an argument devoid of natural law, one might say, an argument based on the law of reason, can be developed. For Frey, the decisive question that precedes the questions of intention and causation, is whether killing on request is legitimized by the free decision of the patient.27 Natural law reasoning stands in opposition to this position. The natural law contrasting model actually being present in the background of the debate, its presence emerging in wordings like the “right to die a natural death.”28 We are now in the situation that on the one hand individual freedom has arisen as the focal point, the case-by-case perspective being present. We face the situation that, on the other hand, individual freedom is being limited with the argumentative reference to the state’s authority extending over individual freedom. English philosophers might argue that it is conceivable that the state constitutes individual freedom (the position of Thomas Hobbes), because it does not exist pre-positively (the claim of John Locke).29 If one were to follow the second approach, it could be said that prepositively subsisting freedom is to be shielded from the grasp of the state. This corresponds to the American legalconstitutional tradition which has been at least partially, influenced by Locke. Concerning for example the argument of Antonin Scalia (and similar positions) in the Right-to-Die-Debate, it is unclear how the protection of human life by the state (possibly also as a shield of man against himself) is to be justified. On the one hand, it can be argued that the state protects the individual from unjustified violations (by others), if the one concerned is unable to articulate her will (which is tantamount to not being capable to autonomy) and has left no clear declaration of his will. Scalia emphasizes, “a state has an undeniable interest in the protection of human life—even the life of a person in a persistent vegetative state.” On the other hand, he equates the cessation of life-support “with ‘ordinary’ suicide”.30 This observation refers to withholding or withdrawal of medically indicated

27 See Brock, Dan W.: Voluntary Active Euthanasia, in: Hastings Center Report 22/2 (1992), 10–22, 22: “If self-determination is a fundamental value, then the great variability among people on this question makes it especially important that individuals control the manner, circumstances, and timing of their dying and death.” 28 See also Kamisar, Yale: Are Laws Against Assisted Suicide Unconstitutional?, Hastings Center Report 23/3 (1993), 32–41, 33: “Many proponents of the ‘right to die’ are quick to point out that the ‘sanctity of life’ is not an absolute or unqualified value (and they are right), but they are slow to realize that the same is true of the ‘right to die.’ There is no absolute or general ‘right to die.’ The only right or liberty that the Karen Ann Quinlan case and subsequent so-called ‘right to die’ rulings have established is the right under certain circumstances to be disconnected from artificial life support systems or, as many have called it, the right to die a natural death.” 29 As a variation of this argument, it is possible to defend individual freedom against itself, namely in cases in which it is conjectural that they are decreased or temporarily or permanently extinct. Indeed, it is also conceivable that the state is entitled to overrule individual autonomy in principle. Different variations of substantiation are possible here. 30 Both citations are taken from Kamisar: Laws against Assisted Suicide, 34.

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measures, provided they are viewed as appropriate, as well as to “the refusal of (natural) food.”31 Scalia arrives at the conclusion that there is no right to commit suicide. This conclusion can be interpreted in two ways: On the one hand, it might refer to an extralegal sphere within which every person can act as she chooses, given that no other agent (including the person herself, given she is currently unable to exercise her autonomy) is being harmed. The Supreme Court ruling doesn’t actually mention a “right to suicide”.32 This reinforces the impression of a view according to which individual freedom is to be protected from unjustified paternalistic interventions and infringements by the state. There is no need for an explicit right to commit suicide, if the view is held that the choice to commit suicide is inherent in the freedom of every individual. The law would only have to intervene if there is doubt whether the intention of committing suicide is rooted in free and deliberate choice. However, Scalia assumes the state has authority over the life of an individual in this regard. He holds the view that the state has the right—indeed an obligation—to prevent suicide, if necessary, even by force and views the cessation of artificial nourishment and hydration as suicide.33 Scalia refers to one of the major commentators on English common law, William Blackstone: “At common law in England, a suicide, defined as one who ‘deliberately puts an end to his own existence, or commits any unlawful malicious act, the consequence of which is his own death,’ was criminally liable. Although the States abolished the penalties imposed by common law (i. e. forfeiture and ignominious burial), they did so to spare the innocent family, and not to legitimize the act. Case law at the time of the Fourteenth Amendment generally held that assisting suicide was a criminal offense.”34 Since suicide is a crime (in 31 Kamisar: Laws against Assisted Suicide, 34: “Justice Scalia maintained that for constitutional purposes‚ there is nothing distinctive about accepting death through the refusal of ‘medical treatment,’ as opposed to accepting it through the refusal of (natural) food, or through the failure of shut off the engine and get out of the car after parking in one’s garage after work.’” 32 Kamisar: Laws against Assisted Suicide, 34: “In fact, the other justices did not say anything about a ‘right to suicide.’ None of them disputed Scalia’s point‚ that American law has always accorded the State the power to prevent, by force if necessary, suicide.’ Nor did any of them disagree that‚ there is no significant support for the claim that a right to suicide is so rooted in our tradition that it may be deemed‚ fundamental’ or‚ implicit in the concept of ordered liberty.’ As Louis Seidman remarks, the Cruzan dissenters‚ carefully avoid any claim that state suicide statutes are unconstitutional—a reticence that Justice Scalia powerfully exploits in his concurring opinion.’ This is a reticence, I might add, that does not bode well for proponents of a constitutional right to assisted suicide.” 33 See Kamisar: Laws against Assisted Suicide, 34: “Although none of Justice Scalia’s colleagues responded in so many words to his argument that the termination of lifesaving medical treatment constitutes suicide, they responded nevertheless. The all framed the question in terms of a right to refuse or to be free from ‘unwanted treatment’ or, more specifically, ‘unwanted artificial nutrition and hydration.’” 34 Cruzan v. Director, MDH, 497 U. S. 261 (1990), 293, quoting Blackstone Commentaries no. 189.

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which the person who turns on herself also turns against God and the King), assisted suicide is likewise considered a criminal offense, even if requested by a competent individual capable of autonomous decisions. Scalia’s reference to Blackstone is significant as it ignores the dispute between natural law and legal positivism. Blackstone would not have questioned positive law on the grounds of the principles of natural law. Instead, he equated the development of positive law with a materialization of natural law. The identification of legal development and the materialization of natural law, which leads at least logically to a form of natural law positivism, did not become the dominant legal tradition in England.35 In the legal discourse of the United States, which has been infused with the reasoning of natural law, it isn’t quite as untypical, which is also why Scalia’s reference to tradition, i. e. the authority of legal development, is not remarkable. Two lines of development can be observed in the American Right-to-DieDebate: On the one hand the tradition of thinking of individual freedom as an ability which exists pre-positively suggests that it is inherent to an individual’s freedom or autonomy to refuse medical treatment regardless of objective and objectifying conditions, i. e. even against medical indication, and to request physician-assisted suicide or active voluntary euthanasia. (The supposed inherent right to active voluntary euthanasia is hard to reconcile with the common law tradition of England that defined suicide as a felo de se—and even if the common law tradition was not taken over completely, it certainly forms the core of the American legal-constitutional tradition—and this is what Scalia is pointing to. The right to die notion can’t be developed easily from the common law tradition in either country regardless of how odd Blackstone’s conflation of case law precedent and natural law may appear). On the other hand, one might seek an answer following the tradition of natural law. In the history of the United States the natural law of the English version of the Enlightenment is closely related to the natural law of reformed Protestantism. In this tradition, man has a prepositive right to live, but at the same time, his life is exempt from his own grasp. In this respect, there is hardly a material (although possibly formal) difference between this position and that of the Roman Catholic conception of natural law. In American legal thought, there is likely to be tension between the tradition of common law and the tradition of natural law, while there is a profound suspicion of the generalizations of natural law, one which still dominates legal and ethical discourse. The impact of the Reformation and John Locke contributed along with the common law prohibitions of suicide. John Locke opposed it with reference to being bound by natural law and the duty to self-preservation. Thomas Hobbes and Immanuel Kant—neither of whom has influenced American legalconstitutional thinking to any great extent—objected to it by pointing out the possible lack of autonomy. Apart from the reservation of natural law, a liberal 35 See Fikentscher: Methoden des Rechts, Bd. 2, 35 f.

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tradition dominates in the United States, which is rooted in the distrust towards the generalizations of natural law. This summary of the American discussion with regard to the right to die question has revealed that in the U. S. metaphysical, and in particular, specifically religious influences have remained somewhat limited. Patient autonomy provides the basis for the ethical evaluation as well as the legal regulation of physician-assisted suicide, whereby the category of causality gains paramount importance, while the category of intention is granted only a subordinate relevance in terms of a physician’s actions.36 Assuming that physician-assisted suicide or the termination of life upon (the patient’s) request is considered ethically legitimate, clarification is still required as to whether this right (which could be established as a right in legal terms) corresponds to an obligation of the physician to kill the patient upon her request or to provide appropriate means (for suicide). From an ethical perspective with a specific focus on the physician-patient relationship, we can observe that if we assume that a patient has the right to medical treatment (provided there is a medical indication), the physician is obligated to perform the procedure. He cannot arbitrarily decline treatment. The ethically relevant question then becomes, whether physician-assisted suicide or the termination of life upon request can be conceived of as medical treatment. The Hippocratic Oath would answer in the negative, since as it assumes (roughly speaking) an understanding based on a notion similar to what would later be called natural law, insofar as legitimate ends of actions can be determined materially: Assisting in suicide or terminating life upon request can never be legitimate ends of medical actions (which is a distinction the Hippocratic Oath does not make). However, this understanding is time-bound (and has the purpose of preventing malpractice). Preventing malpractice is still ethically expedient. However, we would take patient autonomy as formal subjective normative criterion, not the “nature” of medical treatment, which attempts to materially, and in this sense objectively determine the good of the patient. Accordingly, the ends of medical treatment could be expanded by physician-assisted suicide and the termination of life upon the patient’s request.37 If this is the case, a physician 36 Levy, Ken: Gonzales v. Oregon and Physician-Assisted Suicide: Ethical and Policy Issues, in: Tulsa Law Review 42 (2007), 699–729, 706: “Importantly, Chief Justice Rehnquist’s decision was not that physician-assisted suicide violates the Fourteenth Amendment Due Process Clause and therefore must be prohibited. It was only that physician-assisted suicide is not protected by the Due Process Clause and therefore may be prohibited. Naturally, this proposition is consistent with a State’s decision to permit physician-assisted suicide.” 37 Regarding the debate in the United States, see Levy: Gonzales v. Oregon, 711 f.: “But implicit in Justice Kennedy’s expression‚ one reasonable understanding of medical practice’ were the assumptions that, in addition to healing, medicine may serve another reasonable purpose, and physician-assisted suicide may be consistent with this other purpose. … Justice Scalia stated that ‚(v)irtually every relevant source of authoritative meaning,’ including‚ virtually every medical authority from Hippocrates to the current American Medical Association (AMA),’ suggests that the sole purpose of medicine is to heal.”

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would strictly speaking, have the obligation to assist in suicide or to kill a person upon her autonomous volition. In legal terms, we can specify certain exceptions (i. e. establish a kind of “emergency law”, preventing a physician from being coerced to conduct certain procedures). However, these legal exceptions would need to contain the expectation that the medical actions in question are generally provided by physicians, to ensure the accessibility for patients.

3. Is there a “right to die”?—A short view on the German debate If one were to then focus on the continental and specifically the German debate regarding the “right to die”, similar questions present themselves: Is there a right to die? Those arguing on the grounds of the individual’s right to decide on his or her own life view individual freedom as a phenomenon derived from law (which is a model correlating more with Thomas Hobbes, from whom Immanuel Kant learned, than with John Locke), while freedom of an individual is assumed as a pre-positive right in the United States. Those arguing against the individual’s right to decide on his or her own life derive this from foundations based on natural law. With the crafting of West Germany’s Basic Law in 1948, the prohibition of violating the life of another human being became so extensive, that the subject that intends to take its life turns into an object disposing of its dignity. It can hardly be claimed that the line of thought established on natural law has ever dominated the debate in Germany (at least not explicitly). However, it can neither be argued that the Basic Law of the Federal Republic of Germany (which is the equivalent of a constitution) is aware of a right to commit suicide (although suicide has been exempt from punishment in a legal position going back to 1871).38 The right to life and physical integrity as guaranteed in Article 2 of the Basic Law is a defensive right protecting the individual against outside attacks on her physical integrity. Therefore, some view suicide as a renunciation of this basic right. Alternatively, the freedom (not the right) to take one’s life is derived from the right to free development of personality, given the rights of others and the constitutional order remains uncompromised. The claim that autonomy can never be understood in and of itself, but—as previously mentioned—only in the context of law, may emerge as an advantage of the German debate, while it is a weakness of American legal thought to understand autonomy as a prepositive right. It is one of the fundamental concepts derived from the thought of Immanuel Kant that if we cannot determine whether a person is to be considered autonomous, (and we can never decide conclusively), then specific structures of freedom become the point of reference. More precisely, virtue’s commands and prohibitions in Kant’s moral philosophy 38 This stance also determines the legal regulation of physician-assisted suicide, provided that the suicide is in actual physical control.

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do not aim at actions, but at structures. Therefore, the subjective motive for suicide cannot be decisive for a moral verdict. What matters is whether the structures we make use of in our actions can or cannot be justified by the categorical imperative. For this reason, suicide itself cannot become the object of a prohibition within the Kantian framework. The value of self-preservation is not absolute to Kant but determined relatively to our capability to make autonomous decisions. In other words: The value of self-preservation is understood as the condition of our capability to act autonomously. If acts of self-preservation bear structures which oppose the demands of our capability to make autonomous decisions, a collision arises between the duty of self-preservation and the duty of preserving our freedom. If these two duties conflict, suicide is not morally demanded, but is permissible. This is the case, when self-preservation is associated with pain so unbearable, that the person concerned loses her capability of making autonomous decisions.39 The advantage of this approach, i.e. to understand freedom not as something antecedent to structures, consists in the fact that it allows for a distinction between cases of autonomous and cases of non-autonomous actions, and especially that structures can be designed in a way that promotes autonomy. Consequently, these specific structures of freedom need to be shaped by certain measures of palliative care in order to enable decisions which are likely to be autonomous. That point of reference is to be shaped by certain measures of palliative care, to enable decisions which are likely to be autonomous. Without further ado, this perspective of structure analysis can conjoin with empirically profound debates, as they have emerged in the United States. If, for example, patients suffer from unbearable pain, they might, in light of the loss of their freedom, choose physician-assisted suicide as a last resort, which cannot be ethically discredited. Rather, the ethical debate will address the specific structures that allow for the safeguarding of the individual’s freedom, e. g. methods of pain relief. As it cannot conclusively be determined whether a patient is capable of autonomy, the structures of freedom need to be reinforced by legal norms. The German (as well as the continental) discussion, however, is also being accompanied by late-scholastic argumentative patterns that differentiate the scholastic prohibition of suicide.40 The most fundamental terminology concerns the distinction between actively causing death and (passively) allowing someone to die, as well as the difference between direct and indirect causation of death, the latter being the case when pain alleviation is intended and its life shortening effect is only accepted.41 The active-passive-distinction ignores the fact that you 39 For this interpetation of Kant, see Esser, Andrea Marlen: Eine Ethik für Endliche. Kants Tugendlehre in der Gegenwart, Stuttgart / Bad Cannstatt 2004, 354 f. 40 See Wils, Sterben: Zur Ethik der Euthanasie, Paderborn / München / Wien / Zürich 1999, 105–112. 41 The 17th century moral theologian Leonardus Lessius argues, that knowingly acting or refraining from an action entailing an unintended, fatal outcome is admissible if justified

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can kill a person by omission (e. g. reanimation). The distinction between intending and accepting an action incorporates the scholastic principle of double effect and puts it into a specific medical context. Not merely the current theological and philosophical, but also the legal debate in Germany is shaped by this distinction. This gives rise to a number of problems: First of all, the attempt to ascribe causal efficacy to actions, but not to the refraining from actions, is doomed to failure, because refraining from an action initiates the absence of a sequence of consequences and thus becomes a causal constraint on a possible future event of moral relevance. An intentionalist theory of action making plausible the distinction between acting and refraining from acting cannot be explicated without regard to ethical aspects. As already stated, a neutral description of causal relations (which is provided especially by the Anglo-American debate) can be applied to physician-assisted suicide, but also to the termination of life on request, insofar the chain of causation can be traced back to the patient’s auto­ nomous decision.42 Opponents of physician-assisted suicide might respond that we should focus exclusively on the immediate cause of death because that will tell us whether the patient died from natural causes or from human intervention. In addition, the scholastic principle of double effect is rooted in the assumption of an omniscient God, to whom man feels committed by his conscience.43 Modern society is characterized by plurality and shaped as ideologically neutral. In an open society, compliance with the law cannot be guaranteed by the demand that every citizen feels committed to an obligation in the face to an omniscient God. The argumentative scheme of actions with double effects, i. e. the acceptance of unwanted incidental consequences for the accomplishment of desired effect, nonetheless cannot hide the fact that a physician is required to account for all consequences of his actions, given, that he can identify them on the basis of his medical expertise. In the German theological, philosophical or legal debate, the distinction between active and passive and its proposed normative consequences is partially only accepted under the limiting condition of an irreversibly fatal, underlying illness. If the patient’s condition is irreversibly fatal, this implies a correlation between the prospects of the success of a treatment and the duty to submit to that treatment is another late-scholastically influenced line of argument.44 Finally, even the contemporary debate is particularly shaped by the late-scholastic distinction between “ordinary” and “extraordinary” means.45 If a cure cannot be facilitated by ordinary medical means, there is no obligation to resort to extraordinary means. More precisely, the justification of bringing about one’s own death implies, that no extraordinary, but merely ordinary means can

42 43 44 45

on exceptional grounds. See Lessius, Leonardus: De Justitia et Jure ceterisque virtutibus cardinalibus, o. O. 1662, lib. 2, cap. 9, dub. 6. See Levy: Gonzales v. Oregon, 718. See Quante, Michael: Einführung in die Allgemeine Ethik, Darmstadt 2013, 113 f. See Zacchias, Paulus: Quaestionum medico-legalium opus absolutissimum, Roma 1737, tom. II, lib. VIII, tit. II, quaest. I, no. 14, f. 662. See Lessius, De Justitia et Jure ceterisque virtutibus cardinalibus, lib. 2, cap. 9, dub. 14.

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be demanded in order to preserve one’s life. The fact that this normative principle is addressed to the patient, not the physician, may be interpreted as an early stage of the concept of patient autonomy. At the same time, the distinction between “ordinary” and “extraordinary” remains undetermined. A weak variation of this distinction might be the claim that foregoing a basic supply of nutrition and liquid is never permissible, even if it is not applied curatively.46 Even though the American and Continental / German legal systems will certainly not converge, the methodological discourse between them may be a process of mutual learning and occasional harmonization. The core aspects of such a process are likely to be the unideological American discourse that relies far less on metaphysical presuppositions, as well as the analytical focus of Continental discourse on the structures of freedom.

46 Some of these distinctions have not been established quite as firmly in the United States, although it does appear there as well (this similarly applies to the term of indirect euthanasia). The focus here is not so much on intent as on causation. Overall, the principle of patient autonomy is leading in normative terms, as we saw with Raymond Frey.

Gayle E. Woloschak

Human Subjects and Human Rights The goal of this paper is to discuss human rights and experiments involving human beings from the declaration of human rights in 1948 until now, comparing and contrasting the situation in Germany and the US , with some examples from other countries. This essay will briefly touch on the historical development of the ethical guidelines that govern practice today; however, its primary focus will be on examples from contemporary practice, showcasing the limitations and considerations used in research with human subjects currently. The essay will focus on contemporary situations such as CRISPR technology. Prior to the proclamation of the Universal Declaration of Human Rights in 1948 medical research involving human beings frequently disregarded human rights, even to the extent of disregarding the Hippocratic Oath that a doctor should “first, do no harm”. At the bottom of each instance of such infraction was, one might guess, a justification that can be reduced to the notion that research subjects were “lesser human beings” due to their race, nationality, religion, poverty or simply lack of independence. For example, in the late 18th and early 19th centuries, vaccine trials for infections including small pox were done only on humans, often putting the health of the test subjects at risk. Many of these vaccines had unwanted side-effects including the onset of disease itself, yet, in many cases the subjects were not informed about such possibilities nor told that they were test subjects,1 The era before and during WWII included numerous and grievous violations of human rights. Nazi Germany carried out massive testing of various chemical and medical procedures on Jewish and other inmates of concentration camps in order to gain insight into human functioning and causes of disease. There is still controversy over the use of the data resulting from these “tests” because some of this information continues to be accessed by drug companies who might make profit from these studies.2 Similarly, during the Sino-Japanese war Japanese “Epidemic Prevention and Water Purification 1 A compilation of information on unethical use of vaccines in humans was described by Beecher, Henry K.: Ethics and Clinical Research, in: The New England Journal of Medicine 274 (1966), 1354–1360. This is available in: Harkness, J. / Lederer, S. E. / Wikler, D.: Laying Ethical Foundations for Clinical Research, in: Bulletin of the World Health Organization 79/4 (2001), 365–366. 2 This is documented in many sources. Most notable is the review by Lopez-Munoz, F. /  Garcia-Garcia, P. / A lamo, C.: The Pharmaceutical Industry and the German National Socialist Regime: I. G. Farben and Pharmacological research, in: Journal of Clinical Pharmacy and Therapeutics 34 (2009), 67–77.

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Department” conducted medical research on human subjects. Unit 731 was established on the territory of today’s China as a covert biological and chemical warfare test-site; some 3000 people including children were subjected to experimentation each year.3 Other sites such as Unit 100 existed as well; most of the victims in all instances were Chinese. While in these cases test subjects were considered as prisoners of war, military interests often led to use of soldiers who served the country responsible for the experiments. For example, a chemical warfare establishment from UK , Porton Down, tested mustard gas and nerve gas on soldiers from the Irish and Indian branches of the military, especially at sites in the colonies; e. g. in present-day Pakistan.4 With regard to peacetime research violating human rights, one of the most notorious studies in the US was the Tuskegee Syphilis study conducted from 1932–1972 by the US Public Health Service.5 Under the excuse that the test subjects would probably not receive any treatment due to lack of funds, 400 people infected with syphilis (and 200 healthy control subjects) were chosen to be followed and observed without receiving any medical care. During the 40 years of this study different treatments for syphilis were developed including effective and inexpensive penicillin, yet the study subjects were denied any of these treatments. Impoverished African-American share-croppers from rural Alabama were enrolled in the study. All were promised free medical care, meals and free burial for participation in the study. However—no medical care was given and the regional doctors were urged not to provide any care to these test subjects. This constituted “the longest non-therapeutic experiment on human beings in medical history”6 and led to the National Research Act law signed in 1974 and establishment of National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. Work of this commission, then, resulted in the Belmont Report in 1979—a document outlining the basic ethical principles that govern human subjects research in USA : respect for persons, beneficence and justice. Ethical treatment of patients today is considered as an inalienable “human right;” all studies involving humans need to demonstrate justice and respect for the human person and document a balance between benefit to the individual and

3 Gold, Hal: Unit 731 Testimony: Japan’s Wartime Human Experimentation Program, Tokyo 1996. 4 See the article and pictures in Evans, Robert: Military Scientists Tested Mustard Gas on Indians, in: The Guardian, 1. September 2007, https://www.theguardian.com/uk/2007/ sep/01/india.military, accessed 20.08.2018. 5 Archives for this study are extensive and can be found in part at: https://research.archives. gov/id/281640, accessed 10.04.2017. 6 This was noted by Heintzelman, Carol A.: The Tuskegee Syphilis Study and Its Implications for the 21st Century, in: The New Social Worker 10/4 (2003), http://www.socialworker.com/ feature-articles/ethics-articles/The_Tuskegee_Syphilis_Study_and_Its_Implications_for_​ the_21st_Century/, accessed 20.08.2018.

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to society. A series of guidelines have evolved over the years. The Nuremburg Code in 1947 established voluntary consent as an international norm for enrollment of human test subjects.7 The World Medical Association developed a further set of ethical recommendations regarding human experimentation into Helsinki Declaration in 1964; this document was reviewed and updated several times.8 The need to assure that the research plans conform to this document has led to development of Institutional Review Boards in USA for example. With respect to use of drugs, the Pure Food and Drug Act was legislated in the US in 1906, paving the way for the Food and Drug Administration in USA today. The idea of protection of human subjects has developed in recent years to include, for example, not only protection from bodily harm but also protection of privacy. Similarly, understanding of potentially vulnerable populations became more nuanced and the consent forms must satisfy all of these criteria: information, comprehension, and voluntariness. Finally, it is recognized that the respect for social justice requires a specific order of preference in the selection of classes of subjects, e. g., adults before children, and free independent individuals before those who are institutionalized. In the US , a “human subject” was defined by the Department of Human Health and Services as “a living individual about whom a research investigator (whether a professional or a student) obtains data through 1) intervention or interaction with the individual, or 2) identifiable private information.”9 Based on this then, a variety of different definitions have surrounded different types of human studies: – “Intervention”—physical procedures by which data is gathered and the manipulation of the subject and / or their environment for research purposes – “Interaction”—communication or interpersonal contact between investigator and subject – “Private Information”—information about behavior that occurs in a context in which an individual can reasonably expect that no observation or recording is taking place, and information which has been provided for specific purposes by an individual and which the individual can reasonably expect will not be made public – “Identifiable information”—specific information that can be used to identify an individual

7 A full text of the Nuremburg Code is available at the National Institutes of Health (NIH) website, https://history.nih.gov/about/timelines/nuremberg.html, accessed 04.04.2017. 8 Available at the NIH website, https://history.nih.gov/about/timelines/helsinki.html, accessed 04.04.2017. 9 Definitions of human subjects and other issues related to protection of human research subjects are available at the NIH website: https://humansubjects.nih.gov, accessed 20.08.2018.

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The focus of many of these definitions has been to anonymize data so that it can no longer be traced back to individual patients. This approach is common throughout the US and Germany (as well as most of the world). The case of the development of the HeLa cells provides an important example. Henrietta Lacks (born Loretta Pleasant; August 1, 1920–October 4, 1951) was an African-American woman with cervical cancer and the progenitor of one of the most important cell lines in medical research history, HeLa cells. Neither Henrietta Lacks nor her family gave her physicians at Johns Hopkins University permission to harvest her cells, although at the time when cell collection occurred, such permissions were neither required nor customarily sought. HeLa cells were (and are) widely used in cancer research and for commercial purposes. Although in 1975 Henrietta’s family finally learned about the existence of HeLa cell line, the complete genome sequence of HeLa cells was initially made publicly available without consent from the family.10 NIH reached an agreement with the family in 2013 regarding release use of the genome sequences. Under current guidelines in the US , the following rights are given to patients: – – – – – – – –

Voluntary, informed consent—given prior to the medical work Respect for persons: treated as autonomous agents The right to end participation in research at any time Right to safeguard integrity Benefits (to patient) should outweigh cost Protection from physical, mental and emotional harm Access to information regarding research Protection of privacy and well-being

Based on the same idea, there have also evolved a series of principles of human protection: – – – – – – –

Social value—studies must have social value Scientific value—studies must be capable of giving the result Fair subject selection Favorable risk-benefit ratio Independent review Informed consent Respect for the enrolled subject

The elements of informed consent for a patient include competence, disclosure (in advance, if possible), understanding, voluntariness (no coercion), and usually 10 The story of Henrietta Lacks is available in Skloot, Rebecca: The Immortal Life of Hen­ rietta Lacks, New York 2010. The story was also told in a 2017 movie of the same title, produced by HBO / Harpo.

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consent is obtained in writing. With regards to voluntariness, especial attention is given to vulnerable populations—individuals who may misinterpret the intent of the study or the investigators requesting their participation. If the data are to be re-used for a different purpose, consent must be acquired again. While this example summarizes mostly the current human research developments in the US , the situation in the rest of the world is similar. Germany has a long history of human subject work. Even as early as 1900, the Prussian Ministry for Religious, Educational and Medical Affairs established the first informed consent form that was used for patients11. Following the Helsinki Declaration, Germany developed its first research committee to evaluate the ethics of medical research. Like most other nations in the post WWII , in Germany the medical community led the charge for more ethical and fair work on human subjects. In 1972, Germany was among the first to begin consideration of ethical research with animals12. And here? Oversight for biomedical ethics usually takes place at several levels for German research. The German Ethics Council was established in 2007, with the goal to “pursue the questions of ethics, society, science medicine and law…”13 It was responsible for informing the public and encouraging discussion on topics related to ethics. The German Reference Centre for Ethics in the Life Sciences provides national documentation and serves as an information center on ethics in biomedicine; it is responsible for “collecting, presenting and providing information of the different scientific areas…” The Germany Bundestag “study commissions” prepared decisions on wide-ranging and significant issues (e. g., “Law and Ethics in Modern Medicine” 1999–2001 and 2004–2005).14 The Council of Science and the Humanities advises the government for specific science and education issues. Other agencies in Germany include the Technology Assessment Agencies: Office of Technology Assessment, Nano Action Plan; environmental and social impact assessment agencies: Ethics Commission “Secure Energy Supply;” Federal Environment Agency, and others, mostly for environmental assessment. Several watchdog agencies exist including the Robert Koch Institute (Public Health Institute for Germany), Paul Ehrlich Institute (vaccines and biomedicines), Federal Institute for Risk Assessment, Federal Office of Consumer Protection and Food Safety, and others.

11 Vollman, J. / Winau, R.: The Prussian Regulation of 1900: Early Ethical Standards for Human Experimentation in Germany, in: Ethics and Human Research 18/4 (1996), 9–11, published by The Hastings Center. 12 Deutsche Forschungsgemeinschaft: Animal Experiments in Research, Bonn 2007, available at https://www.neuro.mpg.de/23894/DFG_Animal_Experiments.pdf, accessed 20.08.2018. 13 The German Ethics Council: Our Mandate, in: Deutscher Ethikrat, http://www.ethikrat. org/about-us/our-mandate, 10.04.2017. See http://www.ethikrat.org for further documentation on the German Ethics Council. 14 Information about the decisions of the Bundestag (German federal parliament) is available at www.drze.de, accessed 10.04.2017.

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1. A Modern Example: CRISPR The most serious contemporary issue that is of great interest in the biomedical community is known as genome editing. In the past 40 years many approaches for editing genomic DNA (deoxyribonucleic acid) were developed, but in the past 8 years scientists have discovered and started to implement a new type of gene editing technology which we have discovered in bacteria. This new technology is highly specific, precise, and has relatively few off-target effects; the best- known example is called CRISPR-Cas9. This protein-RNA complex acts as a part of “defense against foreign DNA” system in bacterial cells, protecting the bacteria against their parasitic viruses.15 Importantly, this system can be used for targeted DNA editing in humans and other organisms. As we know, DNA is the hereditary material that encodes genes—parcels of heredity passed down from parent(s) to progeny in all living (and some not officially living—viruses) organisms, including humans. The collection of all genes of one organism is its genome. The first step in any gene (or genome) editing approach requires cutting (or cleaving) the DNA . The methods to do this are known for the past four decades and it is this knowledge that begun the era of biotechnology research, they involve use of bacterial restriction enzymes. These proteins are developed by bacteria in order to destruct foreign DNA ; they recognize small regions of DNA between 4 and 8 base pairs in length and cleave the DNA strand within or close to the sequence they recognize. Because 4–8 nucleotide long sequences can be found repeated many times in a single genome, genome editing with the use of restriction enzymes is cumbersome and imprecise. This technology was therefore used only for organisms with very small genomes (e. g. bacteria) and for research and agricultural purposes where extensive, many generations long experiments can be conducted. However, the CRISPR-Cas9 system acts as a restriction enzyme that recognizes a DNA sequence 20 nucleotides long. This much longer sequence can be expected to be either unique or present only several times in any given genome; in consequence, DNA cut(s) committed by CRISPR  / Cas9 can be expected to be unique. Once the DNA sequence is cut, native enzymatic machinery of a cell will attempt to fix the damage and, in that process, introduce into the gap new DNA sequence. Such sequence can be produced artificially and be given to the cells at the same time as CRISPR / Cas9 cut occurs. Removal of a few nucleotides and their replacement with a few new bases constitutes the complete cycle of editing of the

15 This system was first defined in bacterial systems in the paper Bolotin, A. / Quinquis, B. / Sorokin, A. / Ehrlich, S. D.: Clustered Regularly Interspaced Short Palindrome Repeats (CRISPRs) Have Spacers of Extrachromosomal Origin, in: Microbiology 151/8 (August 2005), 2551–2561. For a brief review of the history of CRISPR , Lander, E. S.: The Heroes of CRISPR , in: Cell 164 (2016), 18–28, is also important.

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genome.16 New variations of the CRISPR / Cas9 system are already developed— e. g. Cas9 protein adaptations can permit even higher fidelity of DNA cleavage with few if any off-target effects. Similar modifications have been developed as well to permit the development of a programmable shut-off behavior for the protein. Thus, this new bacterial DNA editing tool has a true potential for human cell editing and that has both positive health implications and possible ethical concerns. The most serious type of concern comes from the fact that implementation of CRISPR / Cas9 can be done in such a way as to introduce the sequence of Cas9 enzyme itself into the recipient genome. This would allow for development of inherently “self-mutating” organisms and this could have far reaching, long term consequences for all living organisms on Earth. New risks and opportunities opened by CRISPR / Cas9 biotechnology were recently considered at a conference at LMU (Ludwig-Maximilians Universität München) Center for Advanced Studies.17 As of the writing of this essay, the German government has classified CRISPR technology together with genetically modified crops (which are forbidden for use in Germany) and ruled that organisms whose genomes were modified by CRISPR will fall under the regulations for genetically modified organisms (GMOs). These regulations will leave little room for use of CRISPR for anything other than basic science research under strict containment; the GMO ban in Germany is more extensive than that in many other countries of the EU.18 In the US , many scientists called for a worldwide moratorium on the use of CRISPR / Cas9 to give time for consideration and re­f lection. In the 1980’s, when the first means for gene editing by restriction enzymes became available such a moratorium was initially in effect. Subsequently, two significant rulings occurred—one was that genetically modified organisms can be patented, the other—that they may not be freely released in the environment. Nevertheless, such restrictions are difficult to enforce when genetically modified species are grown out of containment. Considering the potential of CRISPR / Cas9 for genetic modifications it was expected that a temporary moratorium on use of this technology would be issued, but this did not occur. A series of conferences was held by the National Academy of Sciences in 2016 with the goal of reviewing the question of CRISPR and its role in gene

16 The CRISPR system was expanded to applications to humans in the recent literature, including: Hale, C. R. / et al.: RNA-Guided RNA Cleavage by a CRISPR RNA-Cas Protein Complex, in: Cell 139 (2009), 945–956; Mali, P. / et al.: RNA-Guided Human Genome Engineering via Cas9, in: Science 339 (2013), 823–826. 17 The conference information is available at LMU’s website http://www.en.uni-muenchen. de/news/newsarchiv/2016/cas_crispr.html, accessed 06.04.2017. 18 Palmer, Edith: Restrictions on Genetically Modified Organisms: Germany, in: Library of Congress.gov, 31. March 2014, https://www.loc.gov/law/help/restrictions-on-gmos/ germany.php, accessed 06.04.2017.

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editing. Scientists from around the world were represented.19 A committee to consider CRISPR technology was formed as a mix of scientists, ethicists, science policy workers, and others; this group has met multiple times and reviewed the literature and the current state of the question. They concluded that most avenues for use of CRISPR technology fit into one of the following categories: 1. Basic and preclinical research: this was deemed useful and necessary for further progress 2. Clinical use in somatic cells: this was considered promising 3. Clinical use in germline (reproductive) cells: this was expected to have great potential but at the same time the most risky because of potential off-target effects, implications for future generations, the fact that it could lead to permanent genetic “enhancements” and more. This committee supported the idea that more discussion on the topic is necessary for the entire discipline. The consensus of the group was that basic and preclinical research using CRISPR / Cas9 are currently underway and should continue unhindered. Studies with somatic cells that are now in planning stages are considered unlikely to be ready for use until much more basic work has been completed. Clinical work at the germline requires even deeper consideration at all levels prior to any further steps in that area (recent finding about significant off-target modifications in CRISPR / Cas9 modified mice support this assertion20). The National Academy of Sciences report reflected the multiple perspectives that need to be considered particularly related to the use of CRISPR at the level of germ-line modification: – Advantages: Preventing transmission of inherited disorders; treating diseases that affect multiple tissues – Limitations: (i) genetic correction of parental defects may be less then completely efficient because of mosaicism (the fact that not every cell will have identical gene expression) and the numerous ways by which heritable defects can originate (e. g. nearly terminal and terminal germ cells—eggs and sperm, may themselves may acquire mutations); (ii) long term genetic effect on the entire human gene pool may be detrimental (e. g. genes that are “bad” in two copies are useful in single copy in certain environmental conditions—resilience to parasites and diseases) 19 National Academies of Science, Engineering and Medicine: Human Genome Editing: Science, Ethics, and Governance, Washington, D. C. 2017. Available at http://www.nap. edu/24623, accessed 20.08.2018. 20 Schaefer, K. A. / et al.: Unexpected Mutations after CRISPR-Cas9 Editing In Vivo, in: Methods 14/6 (May 2017), 547–548.

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– Ethical concerns: Balancing individual-level and societal-level benefits (cures vs. unintended risks); natural vs. edited genome; human dignity vs. fear of eugenics; economic and social justice; the slippery slope possibility. The committee noted that while there are concerns and limitations of the use of the CRSPR technology, the fact that it has great power to prevent and treat debilitating diseases should not go unrecognized. From this brief summation of the issues surrounding CRSPR we can recognize that there are numerous implications to be considered in favor and against human research in general. First, we must recognize that science has become global and because of that research on humans is also something that affects the entire human race regardless of where such work is done. Global regulations are needed and common discussion is necessary in order to facilitate regulatory work. Implications of CRISPR / Cas9 like technology further challenge all of the existing considerations in human research. For example—privacy issues with this technology can be expected to become paramount. Information hacking and data breaches make it difficult to safe-guard and protect the identity of patients and human subjects; this may cause limitations for the future gene editing efforts that must be considered. CRISPR  / Cas9 technologies represent a new challenge to all the issues related to human rights. For example, with regard to privacy—every person whose genome is to be considered for CRISPR editing would have to have his or her genome completely sequenced in order to prevent off-target effects. Investigation of possible sequence matches (to enable CRISPR guided correction and avoid off-target side effects) can only be done in silico because of the enormity of data. This means that any information on patient’s genome could easily be stolen and used for any number of malevolent purposes. Probably the most far-reaching consideration that must be mentioned when discussing the use of CRISPR / Cas9 like technologies is the effect of its use on the entire human population. While it is relatively simple to decide what is just and beneficent for a single individual, it is far more difficult to make decisions about the genetic pool of the entire human race. In other words—therapeutic research on an individual requires that the therapy is safe (at least—projected to have greater benefit that harm), and that informed consent was used. This applies to scenarios when CRISPR / Cas9 like technology is used exclusively for somatic cells. At the level of human species these genomic alterations are irrelevant because the genetic modification is lost when the person eventually dies. This is not the case, however, when CRISPR / Cas9 like technologies are used at the germ-line level (in eggs, sperm, and embryos). Genetic changes in the germ-line will (if the newborn has any offspring) introduce new hereditary material into the pool of genetic material of the entire human race, or, at the very least, in the case of “bad gene removal” complete loss of certain genes may be expected to occur in time. There are, however, many genes with multiple functions in any organism and their preservation in species as a whole may be a source of long-

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term resilience. None of these questions can be safely considered at the level of humans as species because we still do not have sufficient knowledge about the future of our planet. What is the mechanism that would enable us to discuss, consider, and regulate when we are thinking about genomic heritage of the human species? While there are approaches (such as the IRB and similar government committees listed above)  for regulation of individual person-based changes, tno agencies exist ­currently in the U. S. or Germany that consider the potential impact on the totality of humanity. New approaches for weighing such technologies for potential benefit and harm for all of humanity are required; academic and religious groups should emphasize the need for the development of committees to consider germ-line modifications that could impact the human species.

2. Concluding Thoughts and Perspectives Broad applications of human rights concerns that began in the 20th century have resulted in today’s use of informed consent and Institutional Review Board approvals to safeguard the patient from therapies that have questionable value and could constitute unethical “human testing”. These approaches are tightly regulated in the US , in Germany and in most of the rest of the world. Approaches for gene editing became available in the 1980’s world-wide, but their accuracy was such that it caused many off-target effects preventing their use for human therapy. During the past decade, however, new approach for more accurate genome editing became available through the use of the CRISPR / Cas9 like technology. This approach has both higher fidelity and specificity than previous approaches and new ways to “tune it up” even further are discovered daily. A recent report by a committee convened by the National Academy of Sciences in the US noted the promise of these techniques but also stressed the need for development of step-by-step approaches for investigation of the potential uses and value of CRISPR / Cas9-like technologies in human therapy. Finally, while protection of single human individuals is under the purview of institutional review boards and similar committees, no equivalent committees exist with the expressed goal of protecting humanity as a whole from genome editing technologies. While one can argue that the somatic cell applications of CRISPR / Cas9 fit well within the standard IRB evaluations, evaluation of germ-line applications of such technology do not. Because germ line changes have the potential to modify the gene pool of all of humanity decisions about such changes should probably not be evaluated by a single hospital or medical center. The discussion about genome editing of humans could have begun already in the 1980’s when it first became clear that such possibility exists (even if only theoretical at that time). Now, when human genome editing became a near future reality, it is high time to begin thinking about what is ethical for humanity as a whole. One can ask the question whether scientific progress can be influenced by

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religious or secular ethics at all. There are several examples where this has been the case. Most recently, questions about the ethical use of embryos for stem cells have led scientists to uncover new mechanisms to generate stem cells that do not require the use of embryos. The most promising has been the development induced pluripotent stem cells generated from adult stem cells that have the potential to treat disease. It is doubtful that this technology would have been initiated by science had ethical discussions not condemned the use of embryos for the task.21 From a global perspective, CRISPR gene-editing technology is regulated differently in different countries. China is progressing rapidly in gene editing technology22 and has already begun human trials with CRISPR to combat cancer with the eventual hope of using CRISPR to edit embryos, a procedure that is considered risky in the National Academy of Sciences report noted above. Germany, on the other hand, is remarkably behind in the gene-editing race predominantly because of Germany’s cautious attitude toward any technologies that modify the human genome.23 These differences from nation to nation may be based in different ethical, cultural, and social norms. No matter what the causes may be, the national differences in regulation of gene editing approaches will lead to vast disparities in its uses. In a world with a broad global reach for new technology, there will always be nations that continue to progress and expand the technology without full consideration of ethical limitations.

21 Discussed in part in Woloschak, G. E.: Perspectives from the Academy: Being Orthodox and a Scientist, in: Bezzerides, A. M. / Prodromous, E. H. (eds.): Eastern Orthodox Christianity and American Higher Education: Theological, Historical and Contemporary Reflections, Notre Dame 2016, 266–278. 22 Mukherjee, Sy: Goldman Sachs: China is beating the US in the Gene Editing Arms Race, in: Fortune, 13. April 2018, http://fortune.com/2018/04/13/goldman-sachs-china-geneediting-race/; accessed 20.08.2018. 23 Frondhoff, Bert-Friedrich / Hoffmann, Siegfried: Gene-Editing Decision Outrages German Researchers, in: Handelblatt Global, 28. July 2018, https://global.handelsblatt.com/ companies/german-eu-crispr-ruling-biotech-949606, accessed 20.08.2018.

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Human Rights in Judaism Reviewed and Renewed Education as a Prototypical Positive Human Right in Judaism

Introduction In contemporary Western discourses, human rights encompass a broad constellation of material and moral needs and interests that ought to be protected and guaranteed to all people on the basis of their humanity.1 Like many other religious and normative traditions, Judaism and Jewish law acknowledge and protect many of these currently recognized human rights.2 Judaism recognizes the inherent equality and dignity of all people; respects people’s natural liberty and autonomy; protects people’s rights to life, bodily integrity, health, property, education, and basic food, housing, and healthcare; and provides important legal rights closely resembling contemporary ideas of due process in the courts. Furthermore, since it is both a legal and a religious system, it mandates charity, kind works, good deeds, prohibitions against gossip and other ethical duties as well. It is not hard to argue that the Jewish legal system does a better job at ensuring many of these basic material human needs than does the modern rights-driven common law system, which hesitates to impose positive duties to care, and is deeply wed to a modern free-market capitalist system that tends to leave significant segments of society vulnerable and without basic human needs. The lack of a safety net in the common law system makes any failure particularly costly. Describing education as a human right in Jewish law is a bit misleading, but still necessary for the needs of this paper. What the secular world would describe as a right that is innately conferred on all individuals by virtue of their existing, Jewish law would impose on them as a duty. It is through this lens—the way education is viewed—that the similarities and stark differences 1 For important recent scholarship providing useful overviews of the history, substance, and evolution of Western human rights discourses, see Stearns, Peter N.: Human Rights in World History, New York 2012; Kao, Grace Y.: Grounding Human Rights in a Pluralist World, Washington, D. C. 2011. 2 For an overview of human rights thinking in Judaism, see Konvitz, Milton R.: Judaism and Human Rights, New York 1972; Broyde, Michael J. / Witte, John Jr. (eds.): Human Rights in Judaism: Cultural, Religious, and Political Perspectives, Lanham 1998. On human rights in the Islamic and Christian traditions, see Witte, John Jr. / ven der Vyver, John D. (eds.): Religious Human Rights in Global Perspective, Grand Rapids 1996; Bederin, Mashood: Islam and Human Rights: Advocacy for Social Change in Local Contexts, New Delhi 2006.

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between the Jewish tradition and the secular world can be seen. Neither approach is objectively better than the other, but both are products of different goals sought for different reasons.

1. The Jewish View on Human Rights The late and great Professor Robert Cover of Yale University Law School noted this as a crucial difference between the rights-based approach of common law countries and the duties-based approach of Jewish law. He remarked: Social movements in the United States organize around rights. When there is some urgently felt need to change the law or keep it in one way or another a “Rights” movement is started. Civil Rights, the right to life, welfare rights, etc. The premium that is to be put upon an entitlement is so coded. When we “take rights seriously” we understand them to be trumps in the legal game. In Jewish law, an entitlement without an obligation is a sad, almost pathetic thing.3

The difference in the rights and duties surrounding education between Jewish and common law is as clear an example of this phenomenon as one can encounter. International law, and many states in America, recognize a child’s “right” to an education, but from a Jewish perspective, this type of right would be a lonely one. It gives a child the right to something that this child will not have when he becomes an adult, as it is not connected to any duty imposed on the child to seek an education or for the child to continue their education through adulthood. Such is not the approach of Jewish law.4 The Jewish tradition recognizes a child’s right to an education. However, this right is part of a broader picture within the Jewish tradition that focuses on the duty of each and every person to be educated. Children possess a right to be educated so that they can be in the best position to fulfill their duty to continue that education as adults. This is a prototype of how the Jewish tradition views all basic human rights—as a human duty. Where Judaism tends to do a poor job at protecting human rights—and where modern states and non-state organizations tend to better succeed—is in the realm of recognizing and protecting the less tangible: inchoate rights, and especially the range of rights associated with freedom of religion, conscience, association, and the right to dissent from prevailing societal norms and values. One of the core human rights widely recognized by numerous states and international

3 Cover, Robert M.: Obligation: A Jewish Jurisprudence of the Social Order, in: Journal of Law & Religion 5/65 (1987), 65–74, 67 (footnotes omitted). 4 Nor for that matter, of Canon or Islamic law; see the discussion in text accompanying notes 21 through 22. All three of these religious legal systems mandate a duty on people (adults and children) to be educated.

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conventions is the right to freedom of religion—and more particularly—the right to freely choose to not practice or believe in a particular faith, or any faith at all. A more readily discussed right in current times is freedom from religion.5 Religious freedom, however, is not a principle often associated with the Jewish tradition.6 A large part of what makes religions what they are is their strong normative claims about correct practice and dogma to the exclusion of all others. Even when religious leaders do acknowledge the possibility that practitioners of other faiths may be believing and worshiping in a way that is essentially legitimate, such tolerance does not typically extend to members of their own religious communities that express dissent and autonomy in belief or practice by rejecting prevailing norms.7 Religions, especially nomos-centric faiths in which religious virtue is measured principally in terms of one’s conformity to a wide-ranging and comprehensive set of behavioral norms, prescribe correct and unacceptable modes of conduct in both public and private life. The scriptures and teachings of such traditions, moreover, typically include a wide range of penalties and consequences—some imposed by temporal religious authorities and others by God—for religious infractions. Often, particularly harsh punishments are prescribed for those who leave the faith be expressing heretical or blasphemous ideas or who convert out by affirmatively adopting the tenets and practices of another religion.8 In another article, co-authored with Dr. Shlomo Pill, I explore the practice of religious freedom within the rabbinic legal tradition.9 It focuses on the extent to which rabbinic law—despite being a system of religious standards that makes strong prescriptive claims about exclusively corrects practices and beliefs—has 5 Li, Anne: ‘Religious Liberty’ Has Replaced ‘Gay Marriage’ In GOP Talking Points, in: FiveThirtyEight, 9. March 2016. https://fivethirtyeight.com/features/religious-liberty-hasreplaced-gay-marriage-in-gop-talking-points/, accessed 07.12.2017; Liptak, Adam: Across the Atlantic, Another Supreme Court Case on Cake and Gay Rights, in: The New York Times, 18. December 2017, https://www.nytimes.com/2017/12/18/us/politics/northern-ireland-​court-​ case-cake-gay-rights.html, accessed 18.12.2017; Mislin, David: The Messy Reality of Religious Liberty In America, in Salon, 3. December 2017. https://www.salon.com/​2017/12/03/ the-messy-reality-of-religious-liberty-in-america_partner/, accessed 07.12.2017; Weigel, George: The Catholic Journey to Religious Freedom, in: National Review, 20. December 2017, http://www.nationalreview.com/article/454792/george-weigel-religious-freedominstitute-speech, accessed 20.12.2017. 6 See Witte, John Jr.: Introduction, in: Witte, John Jr. / ven der Vyver, Johan D. (eds.): Religious Human Rights in Global Perspective, xvii–xxxv, xvii, xx–xxi. 7 See Novack, David: Religious Human Rights in Judaism, in: Broyde, Michael J. / Witte, John Jr. (eds.): Human Rights in Judaism: Cultural, Religious, and Political Perspectives, Lanham 1998, 1–33, 1, 3.  8 See, e. g., Elon, Menacham (ed.): The Principles of Jewish Law, Jerusalem 2007, 529; Affi, Ahmed / Affi, Hassan: Contemporary Interpretation of Islamic Law, Kibworth Beauchamp 2014, 1–28; Helmholz, Richard H.: The Spirit of Classical Canon Law, Athens 2010, 360–65. 9 Broyde, Michael J. / Pill, Shlomo C.: Human Rights in Judaism: Freedom of Religion, Conscience, and Association in Rabbinic Practice, forthcoming.

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recognized the right of Jews to autonomously dissent from settled religious norms without attempting to coerce conformity and compliance with Jewish law. While rabbinic law does make strong assertions about correct religious practice and belief, and unabashedly affirms that Jews are obligated to observe such standards, it generally does not seek to coerce members of societies regulated by Jewish law to actually uphold their purely personal religious obligations. Instead, Jews living in Jewish communities governed by rabbinic law and rabbinic decisors have been left generally free to be as religiously observant or non-observant as they wish. Social or formal legal sanctions were traditionally brought to bear only—though not always—if individual dissent from rabbinic laws threatened the well-being and cohesion of society or caused material harm to other individuals. Common law is consistent with this idea, best described by the adage that one’s rights end where another’s nose begins. This article uses several examples from various areas of rabbinic law to show that in practice rabbinic jurisprudence creates substantial space for religious dissent and religious freedom even within the confines of rabbinically-regulated religious society. Many scholars have noted that Judaism does not really speak in the language of rights—human rights or otherwise—and instead couches norms in the language of duties and obligations.10 Nevertheless, the norms and values of Jewish law evince a strong commitment many of the core protections typically enshrined in Western human rights discourses, and in some cases, the rabbinic tradition goes even further in its robust respect for human life, health, property, and dignity. The rest of this paper focuses on one example: education, with the implied (and truthful) promise that this is prototypical of many other rights. Indeed, the principle of inherent individual equality, which forms the necessary moral and logical starting point for any complex system of universal human rights, is enshrined in the Mishnah, the foundational second-century text of Jewish law that reflects the sum of rabbinic thinking over the previous several centuries.11 Judaism and Jewish law embrace many of the kinds of material human rights typically associated with contemporary liberal rights discourses. However, the Jewish approach to less tangible human rights—especially rights to freedom of religious practice and conscience, and rights of free expression, association, and dissent—is more complicated and is discussed in greater depth elsewhere.12

10 Novack: Religious Human Rights in Judaism, 1; Broyde, Michael J.: Introduction: Rights and Duties in the Jewish Tradition, in: Pollack, Daniel (ed.): Contrasts in American and Jewish Law, Hoboken 2001, xxiii–xxx. See also Glendon, Mary Ann: Rights Talk: The Impoverishment of Political Discourse, New York 1991. 11 See the articles cited in note 10. 12 See Broyde / Pill: Human Rights in Judaism.

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2. Education as a Model of a Human Right in Judaism: Introduction In every legal system a gap exists between the law as it is actually enforced by the courts and the ethical categorical imperative.13 Although it was rejected by Justice Holmes in his “bad man rule,”14 a strong claim can be made that the measure of an enlightened and advanced legal system and society is their success in bridging this gap. Within a religious legal system15 that rejects the clear separation of law and ethics, the severity of this problem is ameliorated. As illustrated by Jewish law, even such a system’s purely civil law must be influenced by ethical duties to a far greater degree than in secular legal systems.16 Education law is one such area. The Jewish tradition believes that there is a human right imposed on both parents and society to educate children. Jewish Law demands of society that certain basic rights be provided for all children. Most of these rights are intuitive. There is an obligation to feed and care for children; there is an obligation to refrain from abusing children; and to the extent a legal system can mandate, there is an obligation to love one’s children.17 This paper explores an area of obligation not generally considered a “right” in the common law tradition, but which Jewish law views as a fundamental obligation that a parent (and society) owes to a child: the duty to educate children. As shall be explained in this article, Jewish law mandates that a parent—and if a parent could not, then society—must provide for the religious, moral, and secular

13 See e. g. Herzog, Isaac: Moral Rights and Duties in Jewish Law in: The Main Institutions of Jewish Law, Vol. 1, London 1936, 381–386 for an excellent general analysis of moral claims in Jewish law as compared with those in English common law. 14 Justice Holmes subscribed to the view, extremely popular in its day, that the law should only attempt to provide guidance for acceptable “legal” rather than proper conduct; thus, Justice Holmes was of the opinion that: If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, and not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions. Holmes, Oliver Wendell: The Path of the Law, in: Harvard Law Review 10 (1897), 457–478, 457, 459. 15 A system in which law is but one component of a religious system. 16 This area of the law was chosen for a number of other reasons as well. First, it is an area of the law far distant from any apparent religious significance, thus making it an excellent paradigm for comparing the civil law of a religious system with the civil law of a secular system. Second, from the perspective of the common law, the field of education law is devoid of constitutional or federal interests, thus allowing the common law to develop in its historical manner. 17 For a general and popular survey of the child-parent relationship in Jewish law, see Matzner-Bekerman, Shoshana: The Jewish Child: Halakhic Perspectives, Hoboken 1984.

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education of children.18 This obligation is as much a part of the parental duty as the obligation to feed and clothe. Indeed, as will be explained later, according to many, the duty to educate is the basis for the right of parents to have custody of their child, and even custody rights can be affected by abandonment of the duty to educate. It is the thesis of this article that the duty to educate—both oneself and one’s children—is fundamental within the Jewish tradition. However, this right to an education is categorically different from the right to an education that one currently encounters in modern international law and in various states in America. Jewish law imposes a duty to educate children so that they—when becoming adults—will be equipped with the skills and knowledge to fulfill their own duty to be educated, as adults also are obligated to educate themselves according to the Jewish tradition. International law and the various states in America that have granted children “rights” to an education have done so without imposing any duty on these children when they are adults to continue their own education. 2.1 The Duty to Educate Children: A Religious Education

Jewish law, like Canon and Islamic law, rules that there is a duty to provide for a religious education. The classical code of Jewish law, the Shulhan Arukh, written by Rabbi Joseph Caro,19 codified the rule when it states: There is an obligation upon each person to teach his son Jewish law; if the father does not teach him, the son is obligated to teach himself…. One is obligated to hire a teacher to teach one’s children …20

Indeed, it is quite impossible to imagine a faith group not imposing an obligation upon its adherents to seek out a religious education. Two contemporary scholars expressed very similar notions when explaining the duty to educate in Canon and Islamic law. Father James Conn stated:

18 Indeed, to this very day, American constitutional law does not mandate that government provide for the education of children, although once it provides for the free public education of some, it must do so for all; Plyler v. Doe, 457 U. S. 202 (1982). As noted in Plyler, as late as 1960 there were areas of the United States where no public education was provided; id., 220. 19 Israel, 1488–1575. 20 Shulhan Arukh, Yoreh De’ah 245:1. In the Jewish tradition, a number of authorities note that even when, for one technical reason or another, the formal verse-based obligation to educate one’s children is inapplicable, there is an intuitive obligation to propagate the faith by teaching religious tenets to adherents. “Hinukh,” in: Encyclopedia Talmudica Bd. 16, Jerusalem 1978, 161–201, 165.

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The relevant legislation on the issue of [the] right to be educated is found in the most recent Code of Canon Law, based on the teaching of the popes and of the Second Vatican Council. Specifically, there are sixteen canons that enumerate the obligations and rights of the Christian faithful. For example, Canon 217 assures all members of the Church “the right to a Christian education by which they will be properly instructed so as to develop the maturity of a human person and at the same time come to know and live the mystery of salvation.”21

Professor Azizah Y. al-Hibri summarized the Islamic position by stating: Many Islamic jurists viewed education as either completely or practically compulsory based on an ayah (Qur’anic verse)  that states: “[T]hose who conceal [from people] the clear Signs and Guidance which we revealed, after we have made them clear to people in the Book [the Qur’an], shall be cursed by God and others who [are entitled to] curse.”22

In the Jewish tradition, the duty to provide for the education of children is discussed in considerable detail. Jewish law explains that the obligation to “teach” a child is not limited to reading and text skills, but includes rudimentary Jewish philosophy and theology: When does one begin to teach a child? When he begins to speak one teaches him that God commanded Moses on the Mount with the Law (Torah) and the principle of the unity of God. Afterwards one teaches him a little bit until he is six or seven at which point one sends him to elementary school.23

The Code also mandates that a Jewish school system be established in every community, “and every community that does not have an elementary school should be shunned [until one is established] … since the world only exists out of the merit of the discourse found when small children study.”24 Indeed, that 21 Conn, James S. J.: Roman Catholic Response to “Duty to Educate—Fact Pattern,” in: Moodle, Michael R. / Conn, James / A l-Hibri, Azizah / Broyde, Michael J. / et al.: Symposium on Religious Law: Roman Catholic, Islamic, and Jewish Treatment of Familial Issues, Including Education, Abortion, In Vitro Fertilization, Prenuptial Agreements, Contraception, and Marital Fraud, in: Loyola of Los Angeles International & Comparative Law Journal 16/1 (1993), 9–106; 13. 22 Al-Hibri, Azizah Y.: Islamic Response to “Duty to Educate—Fact Pattern,” in: Moodle, Michael R. / Conn, James / A l-Hibri, Azizah / Broyde, Michael J. / et al.: Symposium on Religious Law: Roman Catholic, Islamic, and Jewish Treatment of Familial Issues, Including Education, Abortion, In Vitro Fertilization, Prenuptial Agreements, Contraception, and Marital Fraud, in: Loyola of Los Angeles International & Comparative Law Journal 16/1 (1993), 9–106; 23. 23 Shulhan Arukh, Yoreh De’ah 245:5. 24 Shulhan Arukh, Yoreh De’ah 245:7. Islamic law adopts a very similar principle. Islamic law accepts that if the members of one community in a Muslim state agree to abandon education of their children, the ruler—by force if needed—can compel the establishment of an elementary school; see al-Hibri, Islamic Response, 23, n. 9.

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broad mandate to educate is not the end of the discussion. The Code addresses the details of classroom management also. For example, it states: Twenty-five children to a teacher. If there are more than twenty-five students and less than forty, one must provide a teacher’s aide; when there are more than forty students, a second teacher must be provided.25

Finally, unlike other areas of Jewish law which impose some limits on the competitive nature of business,26 in the area of education, Jewish law endorses only competition: One landowner in a courtyard who wants to establish a school in his residence cannot be stopped [through zoning ordinances] from doing so. So too, when one teacher opens a school next to another school, so as to encourage the students to go to this institution [and not the first one], one cannot stop this conduct.27

In short, the Jewish tradition is unambiguous that there is a duty placed on parents to educate children. Furthermore, it seems clear that when that duty cannot or will not be fulfilled by parents, there is a community-wide obligation to provide for the education of children.28 The purpose of this duty to educate is not merely an abstract commitment to aid in the acquiring of knowledge. Rather, as one recent article noted:

25 Shulhan Arukh, Yoreh De’ah 245:15. 26 For a survey of this area, see Levine, Aaron: Free Enterprise and Jewish Law, New York 1980. 27 Shulhan Arukh, Yoreh De’ah 245:22. This stands in contrast to the general rule of Jewish law, which would allow competition in the same general geographical locale but would prohibit competition “on the same block”. 28 The Hebrew works in this note are, unless otherwise stated, taken from the Bar Ilan responsa database 26 of Bar Ilan University, Ramat Gan, Israel (2016). BT Bava Batra 21b and commentaries ad locum. There is a very interesting dispute within the Jewish tradition as to how exactly this societal duty should be fulfilled. Most authorities maintain that the duty to educate, when it would not be fulfilled by the parents, was then a duty of the court system (in Hebrew, beit din), and the courts were directly responsible for the education of those children whose parents would not educate them. This was part of the duty of the court to “orphans”. For an exposition of this theory, see Tosafot, comment on BT Nazir 28b s.v. beno; Rabbi Abraham Gambeiner, Magen Avraham 640:3; Rabbi Isaac Bruna, Terumat Hadeshen 94; and Rabbi Abraham Danzig, Hayyai Adam 66:3.The other approach argued that the court’s duty was limited to appointing guardians for children to provide for their education. The courts did not supervise the educational process for these children. That obligation was, in essence “privatized”. For an exposition of this approach, see Maimonides, Laws of Inheritance 11:1; Rabbi Jacob Reisher, Hok Ya’akov, Orah Hayyim 434:15; and perhaps Shulhan Arukh, Hoshen Mishpat 290:15. While the theoretical differences between these two approaches are small (as in the end, all authority resides in the court system), the practical differences are quite significant in terms of how these children are educated.

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Jewish law imposed a duty to educate a child in those duties [and laws] that he will be obligated in as an adult, in order that he should be prepared and familiar with the commandments… Even though a minor is not obligated to observe the law, he should do so as a form of preparation for adulthood… The same is true for the study of religious texts. The early authorities note that the biblical verse “and you should teach your children to speak about [Jewish law]”29 requires that one familiarize one’s children with the study of Jewish law.30

Given this educational framework, a focus on childhood education in preparation for adulthood, the parental duty to educate has a significant impact on other parental rights and privileges. One of the classical examples of this is in the area of child custody law. Rabbi Asher ben Yehiel, one of the premier medieval commentators on Jewish law,31 in the course of discussing the custody of children, asserts the theory that the right of parents to custody of their children appears to be a manifestation solely of the duty to educate one’s children.32 Rabbi Asher states that since the Talmud ruled that one must educate children, it is intuitive and obvious that this “duty” to educate gives rise to a “right” of custody, which is necessary to fulfill the duty to educate.33 He then asserts that one should use this obligation to educate to determine which parent should receive custody in cases where the marriage has ended. In those cases where the mother bears the primary duty to educate, the mother has the right of custody.34 In those cases where that duty falls primarily on the father, the father

29 Deuteronomy 11:19. 30 “Hinukh,” in: Encyclopedia Talmudica, supra note 20, 161–162. Indeed, the Hebrew term used to discuss children’s education reflects this notion. The term used (“Hinukh”) means “beginning” or “preparation”, as the focus of Jewish law’s educational policies is to prepare children for their roles as adults. For more on this, see Maimonides, Commentary on the Mishnah, in: Menahot 4:5. 31 Germany and Spain, 1250–1327. 32 Yehiel, Asher ben: Response of R. Asher (Rosh) 17:7; see also Rabbi Judah ben Samuel Rosannes, Mishneh Lemelekh, in: Ishut 21:17. 33 Yehiel, Responsa of Asher, 82:2. Support for this approach can be found in other early rabbinic authorities; see e. g. Rabbi Meshullam, Yeruham ben: Toldot Adam veHava 197a, in the name of the gaonim; Molena, Isaac de: Kiryat Sefer 44:557, in the name of the gaonim; and Gaon, Joseph: Ginzey Kedem 3:62. Of course, all of these authorities would agree that in circumstances in which the parents are factually incapable of raising the children—are legally unfit—they would not be the custodial parent. However, Asher appears to adopt the theory that parents are custodial parents of their children based on the obligations to educate, subject to the limitation that even a natural parent cannot have custody of children if unfit to raise them. 34 For reasons that relate to the presence of a “tender years” doctrine, the mother also has custody rights in small children. The details of this are beyond the scope of this article. For more on this, see Broyde, Michael: Child Custody: A Pure Law Analysis, in: Passamaneck, S. M. / Finley, M.: Jewish Law Association Studies VII: The Paris Conference Volume, Binghamton 1994, 1–20.

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receives custody. When the duty to educate ends—at the age of legal adulthood35—the concept of “custody” (like the duty to educate)  disappears as a matter of law, and children are placed with whichever parent or stranger they wish to be placed with.36 2.1 A Moral Education in the Jewish Tradition

As noted by the medieval authority, Rabbenu Manoah,37 the obligation to provide for the religious education of one’s children has two different components to it. The first is to raise one’s children “on the straight and narrow path” of life and to convey to them the imperatives of moral people. This is the primary educational obligation of a parent. Secondarily, one is under a duty to provide for one’s children’s formal education in technical religious law and observances. This obligation, however, is secondary in nature.38 Rabbi Joseph Kapach, writing for the Rabbinical Court of Appeals in Israel, notes that in modern times the technical aspects of education are almost always delegated to educational institutions, and the primary job of parents is to provide for the moral, rather than the textual, education of their children. He states: Even if neither parent will educate the children in the study of Jewish law … still a parent owes his children—and children should receive from their parents—a close 35 Twelve for a girl and thirteen for a boy; Shulhan Arukh, Orah Hayyim 55:9 and Even Ha-Ezer 155:12. This age also requires signs of physical maturity; id. 36 For a longer discussion of this issue, see the responsa of rabbis Landau, Ezekiel: Noda Be-Yehudah E. H. 2:89, and Weiss, Isaac: Minhat Yitzhak 7:113, where these decisors explicitly state that in a case where the mother was assigned custodial rights, but the father was granted the right to educate (an unusual arrangement), and this right was incompatible with the mother’s custody claim, his rights and obligations to educate supersede hers and custody by the mother will be terminated. 37 Narbonne, end of 13th century to mid-14th century. Much of Rabbenu Manoah’s life remains clouded in mystery; for more on this, see “Rabbenu Manoah of Narbonne,” in: Encyclopedia Judaica 11, Jerusalem 1973, 892. 38 Manoah, Rabbenu: Shevitat He-Assor 2:10. Similar such observations can be found in Rabbi Meir Simha of Dvinsk: Meshekh Hakhmah, Genesis 18:19; and Rabbi Hayyim Or Zarua: Or Zarua 2:48. The correctness of this observation of Rabbenu Manoah is quite significant, as it affects the practical obligations toward children in many cases. For example, Rabbi Meir Schlesinger, in: The Duty to Educate, in: Sha’alei Da’at 1 (5749), ponders what educational policy one should adopt when the secondary duty to teach technical religious law conflicts with the primary duty to teach moral behavior—such as the case when too much pressure is exerted upon a child to conform to the details, thus causing the child to abandon the faith completely. Rabbi Schlesinger asserts based on an insight of the late Rabbi S. Z. Auerbach that one must insure that the primary obligation is not abandoned in the process of teaching the secondary requirements—technical religious law. The duty to educate needs an assessment of what maximizes the total amount of proper behavior rather than what fulfills the technical obligations.

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and robust relationship through which a child can develop into an adult with adult characteristics and an adult demeanor.39

In sum, the Jewish tradition mandates a duty to educate oneself and one’s children in religious law, religious observances, ethical principles, and theology.

2.2 The Duty to Educate Children: A Secular Education

The parental duties to educate are by no means limited to a religious (or moral) education. The Talmud, writing nearly 1700 years ago, is quite explicit that there is a duty to teach one’s children a way to earn a living.40 The Talmud recounts: Rabbi Judah states: Anyone who does not teach his children a profession, it is as if he has taught them robbery.41

The later Jewish law authorities note that the Talmud does not call for a parent to provide a child merely some method to earn a living or simply a gift of money. Rather Jewish law requires that a child be taught a “profession”.42 As noted by Rabbi Joshua Boaz,43 a parent does not fulfill this obligation merely by providing a child with an ongoing source of income, such as a trust fund, or even with an income-producing business that the child cannot run, but merely derives income from.44 The obligation to provide a trade or a skill—rather than just a source of income—is elaborated on by Rabbi Shlomo Yitzhaki (Rashi)45 in his commentary on the Talmud. He states that Rabbi Judah’s ruling that a profession need be taught was predicated on the belief that absent work to occupy one’s time, a person might turn to mischievousness—or even crime—out of boredom.46

39 Pseudonymous case, 9 Piskei Din Rabbaniyim [Israeli Rabbinic Court] 251, 259 (1974). 40 Indeed, more generally, parents are under an obligation to teach children “survival skills” for life. Thus, the Talmud, in Kiddushin 29b, recounts that parents are obligated to teach children to swim, as a child who cannot swim is lacking a basic skill necessary to survive. Other authorities have understood the Talmudic phrase “to swim” as an idiom directing a parent to teach children all things needed for survival. For more on this, see “Av,” in: Encyclopedia Talmudica 1, Jerusalem 1948, 16–18. 41 BT Kiddushin 29a, 30b. 42 A “profession” (in Hebrew, um’nut) appears to mean more than a way to earn a living—it denotes specific skills. 43 Spain and Italy, ca. 1470–1557. 44 Sheltai Gibborim, commenting on Kiddushin 12a (1) (Rif pages). 45 France, 1040–1105. 46 Commenting on Kiddushin 30b; see also comments of the rabbi Gumbiner, Abraham: Magen Avraham, on Shulhan Arukh, Orah Hayyim 156. This obligation, however, is not so narrow that it forces a parent to pick a particular profession. Thus, providing a child with the skills needed to be a farmer, rather than just giving them an income-producing farm, would certainly fulfill this obligation.

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Thus, a parent must provide a child with the skills that groom the child towards becoming a fine, upstanding adult. In short, Jewish law requires that one teach his progeny a profession, and that this duty is part of the parent’s general obligation to educate one’s children.47 How precisely to teach a child to earn a livelihood, particularly when the needs to earn a living conflict with the obligation or inclination to study Jewish law or other aspects of Judaism, is itself unclear.48 So too, what particular type of secular education to provide for each child is left to the discretion of the parents. In the details of this, Jewish law provides little definitive direction. However, it is clear that there is an obligation.49 Moreover, this right to an education is not limited to children alone; parents are obligated to educate themselves, as will be noted in the next section. 2.3 The Duty to Educate: The Obligation of an Adult

Unlike modern common or international law, which limit the right to an education to children, Jewish law does not confine the duty to receive an education to children only. In the chapter immediately following the rules related to teaching children, the classical Jewish law code, the Shulhan Arukh, states: Every Jew is obligated to study Judaism whether he be rich or poor, healthy or sick, single or married… All are obligated to set aside a time for study every day and night.50

Adults, like children, have a duty to spend time educating themselves and have the right to receive an education. For example, the Shulhan Arukh states: A person [adult] must trifurcate his study and spend a third of his time on the study of the twenty-four books of the Hebrew Bible; a third of his time on Mishnah, which is the oral law …; and a third of his time on Talmud, which involves investigating and

47 See generally, “Hinukh,” Encyclopedia Talmudica, supra note 20, 162. It is worth noting that the rule requiring that one teach his child a trade is not cited explicitly in either Maimonides’ code or Shulhan Arukh. As demonstrated by Rabbi Jacob Emden, this does not mean that these authorities do not accept that there is such an obligation; see rabbi Emden, Jacob: Responsa She’eilat Ya’avetz 2:68, and the rabbi Yosef, Ovadia: Responsa Yehaveh Da’at 3:75. 48 See Yosef, Yehaveh Da’at 3:75, where the author addresses the issue of whether one should send a child to a trade school or an institution of higher study of Judaism. Rabbi Yosef concludes that the obligation to teach a child about Judaism supersedes the obligation to teach them to earn a living. 49 It is beyond the scope of this article to explore the more general question of the theoretical relationship between advanced secular education and Jewish theology and philosophy; for more on this topic see Lamm, Norman: Torah Umadda: The Encounter of Religious Learning and Worldly Knowledge in the Jewish Tradition, Northvale 1992. 50 Shulhan Arukh, Yoreh De’ah 246:1.

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comprehending matters from beginning to end and being able to analogize from one matter to another … until one understands the essence of the law.51

When a Jewish society allocates resources to education, adult education is no less a priority than children’s education.52

3. Education: The Need for Balance It is an open issue how, in the Jewish tradition, parents are supposed to balance their own needs to study with the needs of their children. A person who cannot afford for himself to study and also to pay for the education of his child is only supposed to assign a higher priority to his child’s education if he feels that the child will derive more benefit from that education than he will.53 However, even in a case where the parent’s formal allocation of resources is to educate himself, and not his children, it is clear that the obligation to provide a moral and religious education for one’s children still applies. This right of adults to an education leads to one of the significant differences between Jewish law and the current approach of many countries. There is little doubt that modern international law recognizes the right of children to an education. For example, article twenty-eight of the United Nations Convention on the Rights of the Child declares: States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free to all; (b) Encourage the development of different forms of secondary education, including general and vocational education; …54

51 Shulhan Arukh, Yoreh De’ah 246:4. The code continues this discussion by addressing under what circumstances a person may change this division of topics, and the proper balance between economic and educational needs. 52 Indeed, when the Shulhan Arukh discusses the laws of education, it has some sections that discuss the problems of educating adults (Yoreh De’ah 246:7–17) and some sections discussing the problems of educating children (Yoreh De’ah 245:9–20). 53 Shulhan Arukh, Yoreh De’ah 245:2. It is worth noting that most authorities rule that there is no duty on a minor child to educate himself; the duty is solely on the parent to educate the child; see comments of Rashi to Berakhot 48a, s.v. ’ad; Rabbi Yom Tov Ishbili (Ritva), Responsa 97; and “Hinukh,” Encyclopedia Talmudica, supra note 20, 162. 54 United Nations General Assembly Resolution 44/23, U. N. Convention on the Rights of the Child, Article 28. U. N., A/44/23 (1989). For a discussion of this document’s integration into American law, see Levesque, Roger: International Human Rights Grow Up: Implications for America Jurisprudence and Domestic Policy, in: California Western International Law Journal 24 (1994), 193–240. For an intellectual history of this document, see Detrick, Sharon: The United Nations Convention on the Rights of the Child: A Guide to the Travaux Préparatoroires, Dordrecht 1992, 382–403.

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So too, article twenty-nine of this same convention tells us the purpose of this right to an education: States Parties agree that the education of the child shall be directed to: (a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential; …55

However, international law imposes no duty on an educated child when he becomes an adult to continue that education, and there is no duty imposed on society to foster the education of adults. There is no obligation to help adults in the development of their “personality, talents and mental and physical abilities to their fullest potential” in international law. It is a right to a child’s education.56 The same result is reached by modern American common law. While there has been a vast expansion of the rights of a child to an education in the last decade in America, this has been nearly57 exclusively limited to the redefining of the state’s or parent’s duty to children.58 There is no mention of the duty of adults to receive an education. When the requirement of parents or society to educate children ceases, the obligations of education cease, as the young adult is under no obligation to self-educate. Indeed, American common law has repeatedly recognized this as an issue and has struggled with it. The most common area of difficulty is in the area of college education. Unlike elementary and (early) high school education, there is no obligation for one to receive any form of post-high school education.59 Logic 55 U. N. Convention, Article 29. 56 Indeed, others have noted that the United Nations Declaration on the Rights of the Child sometimes grants children more rights than they have as adults; see Gomien, Donna: Whose Right (and Whose Duty) Is It? An Analysis of the Substance and Implementation of the Convention on the Rights of the Child, in: Human Rights 7/161 (1989), 162–165. 57 “Nearly” is used because there is one clear exception. States have created adult educational programs as a remedy to the victims of racial discrimination who are now adults, but who were deprived of education as children. See the case Regents of the University of California v. Bakke, 438 U. S. 265 (1978). This is the exception that proves the theme of this article. Even when American society does mandate adult education programs and might consider it a “right” and a “duty,” it is only as compensation for one who was illegally deprived of a child’s right to an education. In the Jewish tradition, these two duties are essentially independent of each other. Immediately after the classical Code states that “there is an obligation on a person to educate his children,” it states “if one’s father does not teach one, one must teach oneself;” Shulhan Arukh, Yoreh De’ah 245:1. 58 See for example, Natapoff, Alexandra: 1993: The Year of Living Dangerously: State Courts Expand the Right to Education, in: Education Law Reporter 92 (1994), S. 755–787; which documents the vast increase in the right to education given to children within the previous ten years. This fine article, with its state-by-state survey of the changes wrought by educational reform, makes no mention of any concept of an adult’s right to an education. 59 Quinn v. Johnson, 589 A.2d 1077 (Supp. Ct. N. J. 1991) (noting that an adolescent who graduates high school prior to reaching majority is under no obligation to attend college,

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would also indicate that when a young adult wishes to receive such an education, he must negotiate with his parents over cost issues, and parents are fully within their rights to decline to pay for the college education of their children. This is the law.60 However, this line has been increasingly expanded in the context of divorced parents, with many courts imposing a duty on parents to assist in the college education of their children, even though these “children” are under no obligation to receive such an education.61 Simply put, the modern common law has increasingly stretched the duty of parents to educate, so as to ensure that someone is still responsible for the furthering of the “child’s” education. In the Jewish tradition, the duty of a parent to educate his children certainly ceases at the time when the child enters legal adulthood.62 However, the moment the obligation of the parents ceases, the obligation resides directly on the adolescent himself. Jewish law can just as easily force the adolescent to comply with its mandate that he receive an education, as it can force a parent to comply with the mandates of Jewish law to educate a child. However, the Jewish tradition recognizes the economic reality of modern times, which is that it is exceedingly difficult for one to adhere to a rigorous duty to provide for one’s own education without some financial assistance.63 In various times and in varies communities, different supplements were provided. For example, the Chief Rabbinate of Israel decreed in 1944 that: Whoever looks at this fairly will conclude that the situation [regarding support for adolescents] requires appropriate remedial legislation. In our time, even adolescent children (girls as well as boys) under the age of fifteen face serious moral dangers if their support is not assured on a legal basis.64

Thus, the rabbinical courts in Israel mandate support until the age of fifteen. Other authorities, based on the obligation of a person to give charity, have argued that parents are under an obligation to give charity to their children who are engaged in study before the parents be allowed to engage in any other charitable giving, and that a court can compel this distribution if the parents have any

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although divorced parents are under an obligation to support such an education if desired by the child.) See Horan, Kathleen Conrey: Postminority Support for College Education—A Legally Enforceable Obligation in Divorce Proceedings? in: Family Law Quarterly 20/4 (1987), S. 589–612, S. 590. Rusk, Richard C.: Educational Obligations for Children of Dissolved Marriages, in: Res Gestae 36 (1992): S. 156–162. Asher, commenting on Nazir 29b. Indeed, the Talmud (Ketubot 49a)  clearly notes that there is a religious obligation to support one’s children when possible. Decrees of the Rabbinical Court of Israel, 1944, reproduced in Elon, Menachem: Jewish Law: History Sources and Principles, Philadelphia 1948, S. 831–832.

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money available.65 So too, many authorities recognize that grandparents have an obligation to provide for the education of their grandchildren (when parents cannot) before they can engage in other charitable activities.66 More generally, the support of higher-learning institutions is perceived as a form of charity. Unlike alms-giving, which actually supports the impoverished, the Jewish tradition recognizes that one who cannot himself pursue his own education shares in the education of others by providing for the support of those who are studying. Thus, the Shulhan Arukh states: One who cannot study, either because he is completely ignorant or because he is busy, can support others who are studying.67

Rabbi Moses Isserless,68 in his classical glosses on this code adds: Such a person [who supports others who are studying] is considered as if he himself is studying. A person can arrange a partnership in which one studies and the other supports, and they will split the rewards [the divine rewards of education and the profits from the business].69

In sum, Jewish law provides for a right to an education for adults as well as children and created support mechanisms to encourage adults to educate themselves or support other adults who were being educated.

Conclusion Human rights are complex in both their articulation and their implementation: in hard cases, balance and nuance are needed. The Jewish tradition excels at turning inchoate rights into practical duties and assigning them to specific people, places and institutions in society in order to make sure that human rights

65 Justice Menachem Elon of the Israeli Supreme Court described the process of forcing parental support as follows: The law prescribes that the giving of charity can be compelled, i. e., when a court is convinced that an individual is financially able to give charity and there are people dependent on charity funds, the court … may compel the individual to give charity in an amount that it determines he is able to pay. The law relating to charity contains an additional rule that establishes priorities of entitlement for recipients. That rule states: “The poor of one’s household have priority over the poor of one’s town, and the poor of one’s own town have priority over the poor of any other town.” The combination of these two rules yielded the conclusion that a father could be subject to legal sanctions for failure to support his children, because such support is the highest form of charity. Elon, Jewish Law, S. 116–117 (footnotes omitted). 66 Rabbi Shabtai ben Meir, Siftai Cohen, Shulhan Arukh, Yoreh De’ah 245:1–3. 67 Shulhan Arukh, Yoreh De’ah 245:1. 68 Krakow, 1520–1575. 69 Comment of Rabbi Moses Isserless, Shulhan Arukh, Yoreh De’ah 245:1.

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are honored in fact and not just in the breach. The education duty that we have explored in this article can be well understood as one example of this. Jewish law, unlike almost any other legal system, not only has a right to education but it imposes a duty to educate both adults and children—this model insures that human rights are not only honored in the breach, but honored in daily life and application.70

70 Of course, focusing on one right as this paper does hardly gives anyone a sense of how Jewish law works in practice since—in the real world—rights reside in the context of other rights and duties reside in the context of other duties. For example, what happens when the right to an education interferes with other rights, either of the party in question or of other parties, remains a hard question for every legal system. Consider for example, Wisconsin v. Yoder, 406 U. S. 205 (1972)—where the United States Supreme Court ruled that Old Order Amish are exempt from the duty to educate when it profoundly interferes with other religious duties—as just one example. These cases in the Jewish tradition fit into three categories. In one case, the person in question cannot fulfill all of their obligations under Jewish law (due to social, economic, medical or any other reality) and wishes legal instruction as to the hierarchy of obligation. There is an elaborate literature on this process and it is very nuanced and specific. The second case is where one person’s fulfillment of all of their obligations impinges on a different person’s ability to fulfill their obligations. This is an incessant problem in America where education is expensive, and no one can fulfill their obligation maximally or ideally and compromise due to economics is almost mandated in the real world. The Jewish tradition assigns these types of balancing to government, but generally insists that the governing authority allocate enough resources to each party to ensure that the statutory minimum is accomplished for all. The third case is even more complex, and it focuses on the question of when society can deprive people of access to the duties of others to help them fulfill their rights due to their own misconduct. Consider a simple example: In the Jewish tradition, every person must return lost objects to the person who loses them. But yet, many have argued that a person who refuses to return the lost objects of others and instead keeps them, forfeits the right to have his own lost objects returned and others have no duty to return that person’s lost objects. I address this issue at some length in Broyde, Michael J.: Access to Justice in Jewish Financial Law: The Case of Returning Lost Property, in: Harris, Michael J. / Rynhold, Daniel / Wright, Tamra (eds.): Radical Responsibility: Celebrating the Thought of Chief Rabbi Lord Jonathan Sacks, New York / Jerusalem 2013, 111–123.

Carl J. Bon Tempo

Refugees and Human Rights in the Post-World War II United States

Many politicians and policymakers in the United States, and large parts of the American public, forge a tight association between refugees and human rights. Many consider refugees to be the victims of human rights abuses, and refugee advocates often assert that the displaced have essential human rights that require intervention, protection, and resettlement.1 This linkage between refugees and human rights, though, was not always the case in the United States. Indeed, the association between human rights and refugees emerged slowly and unevenly in post-World War II America. This essay’s goal is to track this linkage and to explain why it mattered to—and how it shaped—both refugee and human rights policymaking and politics. The story focuses on four periods—the post-1945 moment, the high Cold War of the 1950s and 1960s, the 1970s, and the end of the twentieth century. The key moment was the 1970s, when human rights came to the fore and refugee policy evolved—and both became deeply intertwined with each other. That marriage, as it were, proved durable but also filled with problems in the coming decades, not the least of which were the unfulfilled promises of universality that arose largely because of the nature of human rights politics in the United States. In many ways, concern with both refugees and human rights were largely products of recent history. To be sure, the idea of a refugee, as a person forced to leave her / his homeland or home community, has existed for eons. But the modern definition of refugee—tied to nation-states, political, religious, social, or ethno-national persecution, and eliciting a sense of pity and victimhood from others—only emerged in the early twentieth century as modern nation-states, 1 On the link between human rights and refugees in American policymaking circles, one need only go so far as the Department of State, which places its chief refugee agency (the Bureau of Population, Refugees, and Migration) under the purview of the Under Secretary for Civilian Security, Democracy, and Human Rights. See the State Department web site: https://www.state.gov/j/index.htm. The organization Human Rights First, One of the United States’ leading human rights NGOs, Human Rights First, has a major initiative on refugees. See HRF ’s web site: http://www.humanrightsfirst.org/campaigns/refugees-renewamerica. Likewise, Human Rights Watch, another major human rights NGO, has invested in refugee policy in its “Refugee Rights” work. See HRW’s web site: https://www.hrw.org/ topic/refugee-rights. The International Rescue Committee, another vital refugee aid NGO, makes clear in its 2015 annual report its interest in human rights: http://feature.rescue.org/ annual-report-2015/IRC_AR15.pdf

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international governance and NGOs, and notions of both individual rights and humanitarian aid became fixtures in global affairs.2 More important, scholars date the birth of an international refugee “regime”—meaning a constellation of laws, policies, programs, and aid efforts directed at refugees by both government and non-governmental actors—to the immediate post-1945 period. The history of human rights and their origins is more contested ground. Historians of the United States’ engagement with human rights stress events in the last half of the twentieth century. While acknowledging that American politicians and writers used of the term “human rights” in the 18th, 19th, early 20th centuries, and that humanitarianism flourished in the 19th and early 20th century, the consensus in the literature is that human rights in the United States, at least in a form resembling the contemporary one, emerged sometime in the mid- and late twentieth century. Indeed, the debate among these scholars really centers on whether modern human rights in the United States was birthed in the World War II-era or in the 1970s.3 (Scholars of the international history of human rights tend to have a longer timeline; some trace the idea to ancient times,4 others to the birth of the modern period,5 and others emphasize the twentieth century.6 Moreover, the scholarship addressing human rights in the U. S. emphasizes its Euro-American roots, too often neglecting its sources in other parts of the world.7) These chronologies matter because—at least in the United States—the historical development of human rights and concern for refugees tracked in a roughly synchronous fashion. Both had some important roots in late 19th and early 20th century humanitarianism and both came to the fore of American politics and policymaking at the start of the post- World War II era. All of this is to say that this chronological and ideational overlap set the stage for a partnership of sorts, or perhaps more tellingly, a relationship. That relationship began in the aftermath of World War II . The war created a massive global refugee problem, on the order of 175 million (almost 7.5 % of the 2 The best introductions to the emergence of modern definitions of a refugee are Gattrell, Peter: The Making of the Modern Refugee, Oxford, 2013; and Marrus, Michael: The Unwanted: European Refugees in the Twentieth Century, Oxford 1985. 3 The strongest argument for the World War II era is Borgwardt, Elizabeth: A New Deal for the World: America’s Vision for Human Rights, Cambridge 2005. The strongest argument for the 1970s is Keys, Barbara: Reclaiming American Virtue, Cambridge 2014. For a gloss on the twentieth century, see Bradley, Mark: The World Re-Imagined: Americans and Human Rights in the Twentieth Century, Cambridge 2016. 4 Ishay, Michelline: The History of Human Rights: From Ancient Times to the Globalization Era, Berkeley 2008. 5 Hunt, Lynn: Inventing Human Rights: A History, New York 2008. 6 Moyn, Samuel: The Last Utopia: Human Rights in History, Cambridge 2010. 7 Sikkink, Kathryn: Evidence for Hope: Making Human Rights Work in the 21st Century, Princeton 2018, 10–11; Kelly, Patrick William: Sovereign Emergencies: Latin America and the Making of Global Human Rights Politics, Cambridge 2018.

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world’s population.8) Recently-birthed international governance institutions responded with material and resettlement aid, and numerous countries opened their doors to refugees looking for new homes. The United States funded the major refugee operations of UNRRA and the IRO, and it slowly began bringing refugees to the United States.9 On that front, the key efforts were President Truman’s 1945 directive to speed entry of the displaced and his winning in 1948 of the Displaced Persons Act that eventually brought 400,000 refugees to the United States.10 At the same time, the international community, particularly at the United Nations, was constructing the edifice of the human rights regime, most especially the 1948 Universal Declaration of Human Rights, but also a handful of other human rights-centered (or human rights-flavored)  agreements. Historians of international affairs Elizabeth Borgwadt and G. Daniel Cohen have documented the role of Americans in this effort, and Cohen in particular presents a convincing case that U. S. human rights supporters like Eleanor Roosevelt came to their advocacy after learning of the fate of post-war Jewish European refugees.11 But it seems important to note that more often than not, as the United States confronted the burgeoning refugee crisis in the immediate post-war years, human rights was not at the forefront of thinking. Indeed, one might counter Cohen by arguing that Eleanor Roosevelt was relatively removed from the post-war refugee policymaking efforts in the U. S.—though, he rightly notes her centrality to post-war human rights politics. Thus, Truman’s directive in December 1945 contained not a mention of human rights, nor did his key statements addressing the Displaced Persons Program.12 The debates surrounding the Displaced 8 Gattrell: Modern Refugee, 3. 9 See Bon Tempo, Carl: U. S. Refugee Policy and the Forty Years Crisis, in: Reinisch, Jessica / Frank, Matthew (eds.): Refugees in Twentieth-Century Europe: The Forty Years Crisis? New York 2017, 177–194. 10 For the most recent interpretation of the Displaced Persons Program, see Porter, Stephen: Benevolent or Fair Superpower? in: Porter, Stephen: Benevolent Empire? U. S. Power, Humanitarianism, and the World’s Dispossessed, Philadelphia 2017, 101–127. On Truman’s directive, see Loescher, Gil / Scanlan, John: Calculated Kindness: Refugees and America’s Half Open Door, 1945—Present, New York 1986, 5–6. 11 See Borgwardt, New Deal; Cohen, G. Daniel: In War’s Wake: Europe’s Displaced Persons in the Postwar Order, New York 2011; Cohen, G. Daniel, The Holocaust and the “Human Rights Revolution”: A Reassessment, in: Iriye, Akira / Goedde, Petra / Hitchcock, William (eds.): The Human Rights Revolution: An International History, New York 2012. 12 Truman, Harry S.: Statement and Directive by the President on Immigration to the United States of Certain Displaced Persons and Refugees in Europe, 22 December 1945, in: Peters, Gerhard / Woolley, John T. (eds.): The American Presidency Project, http://www.​ presidency.ucsb.edu/ws/?pid=12253, accessed 22.09.2018; Truman, Harry S.: Special Message to the Congress on Admission of Displaced Persons, 7 July 1947, in: Peters, Gerhard / Woolley, John T. (eds.): The American Presidency Project, http://www.presidency.​ ucsb.edu/ws/?pid=12697, accessed 22.09.2018.; Truman, Harry S.: Statement by the President Upon Signing the Displaced Persons Act, 25 June 1948, in: Peters, Gerhard / Woolley, John T. (eds.): The American Presidency Project, http://www.presidency.ucsb.edu/

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Persons Act in 1948, and its extension in 1950, occasionally mentioned human rights,13 but the focus rested on other factors: the Cold War and the battle with the Soviet Union, especially the anticommunism of the displaced, and repairing the wreckage of World War II . All of this is to say that as the post-war era began, American refugee policies were not especially attuned to human rights thinking or concerns. The link between refugees and human rights in the United States became even more attenuated in the 1950s and 1960s. The reason was quite simple: the Cold War. American refugee policies in these decades were born of the Cold War abroad—the U. S. centering its foreign policies on the Soviet Union—and the Cold War at home—the politics of anticommunism and the development of an internal security apparatus. In justifying the signal refugee program of the 1950s, the 1953 Refugee Relief Program, ethnic groups, liberals, and religious organizations all stressed Cold War and national security rationales as they supported refugee admissions. Such was the power of the moment that the National Catholic Welfare Conference’s Monsignor Edward Swanstrom, one of the country’s leading experts in refugee resettlement, argued that the U. S. had to help solve the European refugee crisis because the globe was “involved in an ideological struggle in which darkness and tyranny are fighting against freedom and human dignity. Swanstrom’s religious humanitarianism, then, was thoroughly informed by the Cold War.14 Even more pointedly, Representative Manny Celler—a liberal Democrat— announced that refugees from East Germany, Czechoslovakia, and Poland (all of which were “subjugated countries”) would “make good citizens” because “they understand the meaning of liberty, they understand how they have been downtrodden, how liberty has been denied to them.” Celler cited the “rights” the refugees would enjoy once in the United States—freedom of speech, press, and religion—but did not express this in the idiom of human rights. Instead, it was the Cold War and anticommunism that justified aid to refugees, and advocates refracted rights talk vis a vis refugees through these same prisms.15 ws/?pid=12942, accessed 22.09.2018; Truman, Harry S.: Statement by the President Upon Signing Bill Amending the Displaced Persons Act, 16 June, 1950, in: Peters, Gerhard / Woolley, John T. (eds.): The American Presidency Project, http://www.presidency. ucsb.edu/ws/?pid=13531, accessed 22.09.2018; Truman:, Harry S.: Special Message to the Congress on Aid for Refugees and Displaced Persons, 24 March, 1952, in: Peters, Gerhard / Woolley, John T. (eds.): The American Presidency Project, http://www.presidency. ucsb.edu/ws/?pid=14435, accessed 22.09.2018. 13 For example, n.a., People Without Countries, in: The New York Times, 2. Mai 1947; o. A., Displaced Persons Get Spellman Aid, in: The New York Times, 16. June 1947; n. a., Speaking of Open Doors, in: The New York Times, 21. May 1948. 14 Bon Tempo, Carl: Americans at the Gate: The United States and Refugees During the Cold War, Princeton 2009, 39–44 for debates about the Refugee Relief Program, and 155 for the Swanstrom quotation. 15 See Bon Tempo: Americans at the Gate, Kap. 2–4, and 44 for the Celler quotation.

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The relationship between human rights and refugees changed dramatically in the 1970s. Human rights activism and consciousness, on both the political left and the right, expanded dramatically in the 1970s United States. The most perceptive histories of the period note that human rights on the left and right flowed from different sources, produced different political and policy outcomes, and ultimately revealed competing definitions of human rights.16 The American commitment to refugees evolved in important ways in the 1970s as well. The decade witnessed, for the first time, the arrival of large numbers of non-white, non-European refugees when the United States began admitting Vietnamese, Cambodians, and Laotians. Refugees from rightist regimes in Chile and Haiti also found safety in the United States—though in far fewer numbers than their supporters hoped. Refugees from the Cold War continued to arrive, but the most prominent among them were Soviet Jews who fled their country because of anti-Semitism. Finally, in 1980, the United States rethought its larger approach to refugee admissions with the Refugee Act of 1980. That law provided for the annual entry of about 50,000 refugees, defined as a person fleeing persecution on the basis of “race, religion, nationality, membership in a particular social group, or political opinion.” The definition was key because, at least on paper, it dropped any geographical or ideological limits on who the United States considered a refugee.17 Many factors powered this revolution in American refugee policies, but none was more important than the rising prominence of human rights in American politics, political culture, and foreign policy. Two examples make the point. First, those who argued for greater refugee admissions increasingly used human rights principles and language to justify their proposals. The Republican Congressman Jack Kemp urged admission of Soviet Jews because “It is a human rights issue.” Democratic Senator Ted Kennedy did the same for Chilean refugees, asserting “there is little doubt that Chileans and foreign residents alike have suffered… the gross violation of their human rights.” President Carter declared of the Indochinese boatpeople and his desire to bring tens of thousands of them to the United States: “Refugees are the living, homeless casualties of one very important failure on the part of the world to live by the principles of peace and human rights.” In taking stock of the whole of the Indochinese crisis, the Catholic magazine America stated “the human tragedy of the Indochinese refugees should transcend political or ideological conflicts”—with that idea of overcoming stale politics and ideologies being central to 1970s human rights thinking. One need only recall how the Catholic refugee expert of the 1950s, Monsignor 16 See Keys: American Virtue, and Moyn: Last Utopia, as well as the collection of essays by Moyn, Samuel / Eckel, Jan (eds.): The Breakthrough: Human Rights in the 1970s, Philadelphia 2013. 17 For the definition, see “Refugee Act of 1980,” https://www.gpo.gov/fdsys/pkg/STATUTE -​ 94/pdf/STATUTE -94-Pg102.pdf. On the transformation of American refugee policies in the 1970s, see Bon Tempo: Americans at the Gate, Chapter. 6. 

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Swanstrom, had constructed a case for refugee admissions based on that Cold War-inflected ideology and politics, which some prominent 1970s Catholics now rejected, to see how much the debate had evolved. Finally, the liberal-left utilized human rights language more frequently than the right, but as Kemp demonstrates, some conservatives picked up the motif.18 Second, refugee policies and laws in the 1970s themselves reflected certain human rights ideas. The non-ideological definition of refugee in the 1980 law flowed from the attempt of human rights activists on the liberal-left to leave behind old Cold War political and ideological verities. The lack of a geographical limitation on who could be considered a refugee reflected the universalism at the heart of the human rights moment. So did the codicil in the new law that declared any person who had persecuted another on the basis of religion, ethnicity, social group, or political opinion could not be considered for admission as a refugee. Here, the liberals wanted to bring the essence of their anti-torture campaign, which had its roots in human rights politics, to refugee policy.19 Human rights and refugee policy continued their entanglement through the end of the twentieth century, but in revealing and complex ways. Most important, the politics of human rights became integral to the politics of refugee affairs, and vice versa. That is, refugee advocates continued to cite human rights as justification for admissions, while human rights NGOs adopted refugee causes with real fervor. They ended up energizing each other, especially as the refugee problems of the late- and post-Cold War period took hold. As conceived by liberals, the core of human rights that should have guided the nation’s new refugee policies proved hard to deliver. The conservative Reagan Administration inherited the 1980 law but chose to implement it—and its admissions quotas—in a distinct fashion. Thus, throughout the 1980s, the United States principally admitted refugees from communism and, to a lesser degree, Europe. Practically, these choices brought Eastern Europeans, Soviet citizens, and Asians escaping communist governments to the US , while leaving victims of rightist governments in Central and South America unable to enter. Refugee and liberal-left human rights advocates howled in protest, claiming that these admissions policies failed to protect the non-ideological civil and political rights at the heart of their human rights idea. Reagan and his allies responded that these admissions promoted human rights by offering new starts in the United States to victims of the Soviet Union and communism. Nowhere were these dynamics clearer than in the Sanctuary Movement of the 1980s, which sought to protect the tens of thousands of refugees from Central America fleeing to the United States to escape the political and economic violence in their homelands. Those refugees entered the United States outside

18 Bon Tempo: Americans at the Gate, 141, 143, 152, 155. For a discussion of human rights and refugee policies, see chapter 7 of Bon Tempo: Americans at the Gate, 167–196. 19 Bon Tempo, Americans at the Gate, chapter 7.

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of legal avenues, and thus faced deportation from the Reagan administration, who took a dim view of their circumstances in any event. The Sanctuary Movement, based in several hundred congregations of various religious faiths, offered refugees aid, shelter, and protection from federal authorities—the latter at the risk of breaking the law. A belief in human rights undergirded these activists, who believed both that they were protecting the human rights of these refugees and that they were injecting human rights considerations into both American refugee policy and U. S. foreign policy at large. The contrast with religious leaders of the 1950s who advocated for refugees out of an anticommunist Cold War paradigm, like Swanstrom, could not have been more stark. What became apparent in refugee politics, in the 1980s and beyond, then, were the multiple definitions of human rights coursing through American politics, as well as contested understandings of who qualified as a refugee worthy of aid. The façade of universality at the heart of human rights crumbled in the face of actual refugee politics and refugee policies, and in the face of the refugees themselves, with their varied circumstances that defied easy categorization.20 This story of human rights and American refugee policies leaves a few larger questions. First, why did the marriage of human rights and refugees occur in the 1970s and not the late 1940s? The most obvious reason is that while the United States confronted refugee flows of relatively equal magnitude (if not in raw numbers then at least from the perspective of American interests) in each period, the human rights impulse in the United States was much stronger in the 1970s than in the post-1945 period. Political and social historical context meant everything. In the late 1940s and early 1950s, the United States shifted its focus from human rights to the Cold War in geopolitics.21 Even ardent Cold Warriors like John F.  Dulles, President Eisenhower’s Secretary of State, who historian Samuel Moyn has shown had ties to European Christian conservatives intrigued by human rights, abandoned that interest once in office to focus on anti-Soviet and anticommunist policies.22 This is not to say that Dulles did not bring a moral and religious zeal to his anticommunism—he surely did, as did many other American Cold Warriors—only that he and other conservatives in the 1950s and 1960s had little interest in human rights. In the domestic realm, the focus on rights gave way to anticommunism, a point made by the historian Carol Anderson in her examination of the NAACP and human rights in the

20 Bon Tempo: Americans at the Gate, chapter 8. I explore the political Right’s vision for human rights in the 1980s in Bon Tempo, Carl: From the Center-Right: Freedom House and Human Rights in the 1970s and 1980s, in: Iriye, Akira / Goedde, Petra / Hitchcock, William (eds.): The Human Rights Revolution: An International History, New York 2012, 223–244; and in Bon Tempo, Carl: Human Rights and the U. S. Republican Party in the Late 1970s, in: Moyn, Samuel / Eckel, Jan (eds.): The Breakthrough: Human Rights in the 1970s, Philadelphia 2013, 146–165. 21 Borgwardt: New Deal. 22 Moyn: Last Utopia.

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post-war period.23 Moreover, the African-American civil rights movement—the great vehicle of political and civil rights in the 20th century United States—was just beginning its most powerful phase in the early post-war period. In contrast, by the 1970s, the United States had embraced a “rights revolution” in domestic political and social life, and the Cold War consensus had crumbled in the wake of the disaster of the Vietnam war. These two trends came together, as the historian Barbara Keys has shown: the trauma of Vietnam made Americans much more receptive to human rights, which many viewed as an ointment that would salve the war’s wounds to American values.24 Second, how did refugee affairs shape human rights in the twentieth century? In short, refugees became a central element in the politics of human rights. Refugees were such a prominent and permanent feature of global life in the post-war era that they proved an easy vehicle for human rights supporters, especially on the liberal-left but also on the right, to make their cases. And the reality of refugees meant that refugee affairs became yet another field—and a key and constant one—for different definitions of human rights to battle. Refugees also proved a good match for the politics of human rights in a particular fashion. As the late historian Ken Cmiel argued, human rights politics in the U. S. came to be dominated by a “thin” symbolism that allowed advocates to project their own politics upon victims of human rights abuses.25 Refugees, to a large degree powerless and victimized and dependent upon the aid of others, emerged as easy symbols for human rights advocates to embrace—and to shape for their own political ends. The irony is, of course, very apparent: advocates of “human rights” effectively weaponized—and thus strengthened—the victimization of those they were trying to help, imbuing them not with more rights but with more pity. And, finally, how did human rights change the course of refugee affairs in the United States? In the 1970s, human rights helped break the sclerosis that had developed in the post-war era American effort to aid refugees. It helped forge a new commitment in the 1980 refugee law to the world’s displaced. It gave supporters of refugees a new language and set of principles to inject into refugee politics. But, as we have seen, human rights’ essential ambiguities in definition and application also led to confusion in refugee politics and policymaking. If the principles of human rights depended upon the advocate, and human rights ideas became central to refugee politics and policymaking, then it stood to reason that refugee policies and laws would be captured by those same subjectivities. They were in the 1980s, and they remain so today. 23 See Anderson, Carol: Eyes off the Prize: The United Nations and the African American Struggle for Human Rights, 1944–1955, Cambridge 2003. Mark Bradley has challenged the idea that human rights disappeared totally from domestic politics and culture in postwar America in his latest book (and other venues). See Bradley, The World Re-Imagined. 24 Barbara Keys, American Virtue. 25 Cmiel, Kenneth: The Emergence of Human Rights Politics in the United States, in: Journal of American History, 86/3 (1999), 1231–1250.

Michael Reder

The (Global) Sphere of the Political Critical Views on Habermas’ and Rorty’s Concepts of Religion and Human Rights

For almost 20 years, a dispute has been ongoing within the context of academic debates concerning religions as political actors.1 During the 1970s and 1980s, the discourse diagnosed or prognosticated the decline of religion’s influence in democratic societies; during recent times, this assumption has been increasingly revised, coined, as it was, by the theory of secularization. Given not only the empirically observable renaissance of religion on the global level, but also the fact that, for example, both academics and politicians support this renewal in a positive regard, religion has become more strongly emphasized in political processes, and, therefore, its political function has also been redefined. This insight was formulated paradigmatically by Peter L. Berger, an (earlier) advocate of the theory of secularization, who later took this same turn: “The assumption that we live in a secularized world is false. The world today, with some exceptions […] is as furiously religious as it ever was, and in some places more so than ever. This means that a whole body of literature by historians and social scientists loosely labelled ‘secularization theory’ is essentially mistaken”.2

Thus, religions are back in the academic debate. But the question of which social and political function they should fulfil, remains controversial. Especially concerning the globalized world, in which religions often play an ambivalent role, we should, again, start to reflect about religions. How, for example, should we conceptualize their social influence and their political function? These questions lead to the central aim of the this essay: How should ‘the political’ be conceptualized facing diverse practices, especially facing many religious practices, which, today, play an important role in the global, political sphere?3 For 1 Berger, Peter L.: The Desecularization of the World: Resurgent Religion and World Politics, Washington D. C. 1999; Casanova, Jose: Public Religions in the Modern World, Chicago 1994; Habermas, Jürgen: Between Naturalism and Religion: Philosophical Essays, Cambridge 2008; Reder, Michael: Religion in säkularer Gesellschaft: Über die neue Aufmerksamkeit für Religion in der politischen Philosophie, 2nd ed., Freiburg 2014. 2 Berger, Desecularization, 2. 3 The expression ‘the political’ refers to the French tradition of reflecting on the bases of political mechanisms and institutions. For example, Jean-Luc Nancy suggests that the political not designates “the organization of society but the disposition of community as such”: Nancy, Jean-Luc: The Inoperative Community, Minneapolis 1991, 40. For further

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this purpose, I will refer to two approaches, one German and one from the US , which played an important role during the last two decades. Jürgen Habermas and Richard Rorty share some fundamental perspectives, but also seem to be two antipodes of the discourse. In order to reflect on the social and political function of religions in a globalized world, I will refer to the concept of human rights, because human rights play a central role in the globally formed political sphere. Human rights, I argue, provide one of the most influential normative, political and juridical frameworks that guide world society. I reconstruct in what follows both Habermas’ and Rorty’s interpretations of human rights, discuss in what way these concepts interrelate with their understandings of religion and assess what these reflections imply for the global sphere of the political. Finally, I will make some critical remarks concerning both concepts, and thereby develop an argument indicating in which direction I would like to push forward the current debate.4

1. Habermas’ paradigm of post-secular societies and his concept of human rights Going back some decades, in the Theory of Communicative Action, one can find scattered references to the social role of religion where that role was still influenced by the theory of secularization. Habermas assumes that, with the development of modern society, the function of religion in fostering social integration is essentially transferred to secularized communicative reason: “The socially integrative and expressive functions that were at first fulfilled by ritual practice pass over to communicative action; the authority of the holy is gradually replaced by the authority of an achieved consensus”.5

Underlying this assessment is the basic idea of communicative action. This concept states that communicatively acting persons reach agreements concerning their normative claims through rational arguments. Religion is in danger reflections on this difference concerning different authors in the French tradition of (political) philosophy see Marchart, Oliver: Post-Foundational Political Thought: Political Difference in Nancy, Lefort, Badiou and Laclau, Edinburgh 2007. 4 Some of the following arguments are related to previous publications of the author. For detailed reflections of these arguments, see e. g. Reder, Michael / Schmidt, Josef: Habermas and Religion, in: Habermas, Jürgen / Reder, Michael / Schmidt, Josef (eds.): Awareness of What is Missing: Faith and Reason in a Post-Secular Age, Cambridge 2010, 1–14; Reder, Michael: How Far Can Faith and Reason be Distinguished?, in: Habermas, Jürgen / Reder, Michael / Schmidt, Josef (eds.): Awareness of What is Missing: Faith and Reason in a PostSecular Age, Cambridge 2010, 36–50, Reder: Religion in säkularer Gesellschaft; and Reder, Michael: On Human Experiences and Cultural Practices. Pragmatism, Democracy, and Religion,” in: Yearbook on Practical Philosophy in Global Perspective 1 (2017), 69–89. 5 Habermas, Jürgen: The Theory of Communicative Action, Boston 1984/1987, 77.

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of blocking this communicative action because it does not leave the religious participants in discourse free to enter the space of rational communication. Instead, religions equip believers with clear directives concerning the goal of the discourse. Hence, Habermas calls on the religious citizens not to absolutize their one-sided (moral) judgments but instead to submit to the conditions of a liberal state. In contrast to this more religion-skeptical point of view, during the last twenty years one can find remarks which are less informed by the thrust of secularization. In this regard, Habermas has come increasingly to reject liberal arguments and instead to focus more on religion. Firstly, he uses the notion of the ‘post-secular society’ to highlight the fact that religions, understood as extensive doctrines, should not be excluded from the process of deliberation.6 In his view, religions imply diverse semantic potentials that are able to provide important impulses, especially within societies that suffer from the pathologies of modernity (economization or declining solidarity). Hence, religions should be acknowledged as partners for dialogue and be integrated into political processes. In his examination of Rawls’ approach, Habermas argues that the liberal state “must not discourage religious persons and communities from also expressing themselves politically as such, for it cannot know whether secular society would not otherwise cut itself off from key resources for the creation of meaning and identity”.7

However, Habermas imposes an unequivocal condition: religion is only permitted to participate in society as long as believers translate their semantics into an idiom that is understandable to all citizens: “Whereas citizens of faith may make public contributions in their own religious language only subject to the translation proviso, by way of compensation secular citizens must open their minds to the possible truth content of those presentations and enter into dialogues from which religious reasons might well emerge in the transformed guise of generally accessible arguments.”8

Habermas wants to stimulate a constructive dialogue between all citizens, no matter which worldview they have. But this dialogue is asking for a translation of religious semantics into a secular logic and vocabulary. Philosophically, this concept of dialogue and translation implies an important distinction, which Habermas emphasized in his dialogue with the former Joseph Cardinal R ­ atzinger 2004 and subsequently in a discussion at the Munich School of Philosophy in 2007.9 Hence, faith and knowledge remain epistemologically separated, although 6 Habermas, Jürgen: The Future of Human Nature, Cambridge 2003, 101–115. 7 Habermas: Naturalism and Religion, 131. 8 Ibid., 132. 9 Habermas, Jürgen: An Awareness of What is Missing, in: Habermas, Jürgen / Reder, Michael / ​ Schmidt, Josef (eds.): Awareness of What is Missing: Faith and Reason in a Post-Secular Age, Cambridge 2010, 15–25.

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religious beliefs can be translated into the language and logic of secular knowledge, and, therefore, become accessible to democratic societies. But, in a certain regard, Habermas sticks to the liberal argument: “Philosophy can draw rational sustenance from the religious heritage only as long as the source of revelation that orthodoxy counter poses to philosophy remains a cognitively unacceptable imposition for the latter. […] “Once this boundary between faith and knowledge becomes porous, and once religious motives force their way into philosophy under false pretences, reason loses its foothold and succumbs to irrational effusion [Schwärmerei]”.10

We will engage shortly problems which might be implied in such an interpretation of the relation between religious and liberal semantics. I argue that this concept of post-secular society poses the danger reducing public deliberation to only one, namely the liberal semantic. Additionally, such a concept also tends to reduce religion to a moral source. Before developing this argument, however, we must turn to the global dimensions of my argument in the context of human rights. Globalization has been one of the most influential political processes during the last three decades. This process has implications for the analysis and understanding of social structures, economic processes, cultural dynamics and also religious phenomena. To understand the consequences of Habermas’ theory of post-secular societies for the interpretation of global dynamics, one should reflect on what way he is conceptualising global dynamics and world politics. In this perspective, his interpretation of human rights plays an essential role. One of the most influential starting points of the philosophical debate about globalization—also for Habermas—was the discussion about Immanuel Kant’s ideas on Perpetual Peace which began in the mid-1990s.11 Kant had argued for a federation of states and a cosmopolitan right to realize freedom and to support peace on the global scale. Philosophers like Habermas agreed with Kant and asked in what way deliberative procedures and international institutions should be structured today to realize this aim. Against this background, Habermas developed a Kantian- inspired concept of cosmopolitism on the basis of his discursive and deliberative theory. He started reflecting on global processes beginning with ‘post-national constellations’.12 Habermas’s main idea, and also of his current interpreters, posits that a cosmopolitan theory should be founded on the idea of communicative action and the concept of deliberation, which is why international institutions should always be structured in a deliberative manner. For example, cosmopolitism according to 10 Habermas, Jürgen: Naturalism and Religion, 242 f. 11 Lutz-Bachman, Matthias / Bohmann, James (eds.): Frieden durch Recht: Kants Friedens­ idee und das Problem einer neuen Weltordnung, Frankfurt am Main 1996. 12 Habermas, Jürgen: The Postnational Constellation: Political Essays, Cambridge 2001, and Habermas, Jürgen: The Divided West, Cambridge 2006.

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Seyla Benhabib is a deliberative concept, one that tries to transform the Kantian idea of ruling world politics in a more dialogical way.13 Human rights play a central role in such a cosmopolitan concept. Habermas interprets them as juridical rights, which are based on the autonomy of the person. The concept of human rights “does not have its origin in morality, but rather bears the imprint of the modern concept of individual liberties”,14 which is why they should be understood as a juridical concept. Following Kant’s philosophy, equality and autonomy of all human beings provide the basis of the justification of rights in general and human rights in particular. In this perspective human rights and the sovereignty of the people are co-originate. Citizens are not only addressees of rights but also authors of them. “[The] internal relation between popular sovereignty and human rights consists in the fact that the system of rights states precisely the conditions under which the forms of communication necessary for the genesis of legitimate law can be legally institutionalized.”15

Human rights could claim universal validity because they are founded on the autonomy of all people. Against this backdrop, Habermas argues that democracy and human rights are closely interrelated. Both are based on sovereignty of the people and, therefore, could not be separated. What does this concept of human rights mean for the concepts of religions and the political in a global perspective? I suggest that one can demonstrate three consequences: Firstly, as Habermas interprets human rights not only as liberal rights against the state, but also as positive rights, thus opening the possibility for freedom of religions in two directions; namely, positive and negative freedom. Human rights are a juridical and political framework, with which believers are enabled to practice their religion. At the same time, they are also secured, insofar as the state is not allowed to limit this practice, and this is true also on a global level. Secondly, some philosophers have criticised such a concept of human rights as being based on the western tradition, because of its focus on autonomy and democracy. As Habermas founds his argumentation on both of these concepts, he seems to favour the western tradition and maybe even neglects the intercultural structure and dynamic of the globalised world. This argument also implies that Habermas is not sufficiently aware of the plurality of cultural and religious traditions that influence the multi-cultural world today.16 Habermas has answered this criticism several times and emphasised that the basic idea of 13 Benhabib, Seyla: Dignity in Adversity: Human Rights in Troubled Times, Cambridge 2011. 14 Habermas, Jürgen: The Inclusion of The Other, Cambridge 1998, 190. 15 Habermas, Jürgen: Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Cambridge 1996, 104. 16 Mall, Ram A.: Intercultural Philosophy, Lanham 2000.

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symmetric communicative action is a transcultural idea.17 From his point of view, it does not exist a more convincing reason for building juridical respectively political institutions than his referring to discursive ethics and deliberative political theory. The third critical point is closely connected to the second one. As Habermas emphasises the co-originality of human rights and popular sovereignty, and for this reason, also of human rights and democracy, the logic of the of post-secular paradigm described above would also be valid for the global scale: religions could be part of world politics, e. g. human rights orientated politics, only if they translate their semantics into understandable and reasonable—i. e. secular— language. Some comments made by Habermas tend to imply this interpretation, stating, that even if religions would translate their semantics, only those religious arguments should be considered, which are connectable to the liberal logic of western democracies.18 From an intercultural point of view this concept might be not convincing, because this argument implies the assumption that the liberal secular language enjoys a privileged position over others.19

2. Rorty’s liberal criticism of religions and his political fight for human rights Richard Rorty was one of the most controversial American philosophers of the 20th century, and he provides an alternative perspective for the topic of this paper. He was also an important champion of liberalism as a political concept. Therefore, he provides a useful theoretical link between the focus on deliberation as key model for argumentation in the German discourse and the more liberal tendency in the US discourse on that issue. Rorty agreed with American pragmatist theorists of the early 20th century and their critical perspective on traditional metaphysics and critique of conventional theories of truth. Using the figure of the ‘liberal ironist’, Rorty attempted to acknowledge the diversity and contingency of the possibilities available to interpret reality. Irony is to be understood, following the philosophy of romanticism, as the awareness of contingency.20 According to this romantic reading, the vocabulary that describes the world, and which is continually recreated by human beings, is not placed in a causal relationship with the world. “But if we could ever become reconciled to the idea that most of reality is indifferent to our descriptions of it, and that the human self is created by the use of a vocabulary rather than being adequately or in-adequately expressed in a vocabulary, then we 17 Habermas, Jürgen: Der interkulturelle Diskurs über Menschenrechte: Vermeintliche und tatsächliche Probleme, in: E+Z: Entwicklung und Zusammenarbeit 38/7 (1997), 164–166. 18 Habermas: Awareness of What is Missing. 19 Reder: Religion in säkularer Gesellschaft. 20 Rorty, Richard: Contingency, Irony, and Solidarity, Cambridge 1989.

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should at last have assimilated what was true in the Romantic idea that truth is made rather than found.”21

Rorty considered himself to be a liberal and stressed the commonly shared human experience that cruelty is the worst practice in which human beings can engage. As a political form of reaction to the experience of suffering, liberalism is, indeed, historically contingent. However, according to Rorty, it is the best possibility by which humans are able to overcome such cruelties. Accordingly, Rorty argued that political vocabulary should not be reconnected to (pseudo-) metaphysical concepts such as the public or the communicative use of reason because in doing so the fundamental intuition of irony as awareness of contingency becomes undermined. “The liberal ironist just wants our chances of being kind, of avoiding the humiliation of others, to be expanded by redescription. She thinks that recognition of a common susceptibility to humiliation is the only social bond that is needed. Whereas the metaphysician takes the morally relevant feature of the other human beings to be their relation to a larger shared power—rationality, God, truth, or history, for example—the ironist takes the morally relevant definition of a person, a moral subject, to be ‘something that can be humiliated’”.22

Rorty’s interpretation of religion and its social function was based on this conception of liberal irony that posited itself as providing a critique of religion in secular society from a liberal perspective. Here, Rorty relied on John Dewey’s understanding of religion as an institutionalized religious community and the latter’s critique of religion’s exaggerated claims of truth or power. Rorty is both skeptical about religious truth claims and their moral demands, which, in historical terms, have often adopted an anti-liberal character. Therefore, he argues for a critical attitude towards religion, which he calls “anticlericalism”.23 “To save religion from onto-theology, you need to regard the desire for universal intersubjective agreement as just one human need among many others, and one that does not automatically trump all other needs. This is a doctrine Nietzsche and Heidegger share with James and Dewey.”24

According to Rorty, religious beliefs only make sense as individual self-creation. Hence, they are literary-shaped forms of human expression. Nevertheless, no claims should be made that they are universal in the public sector. According to Rorty, it is exactly this demarcation which many religions refuse to accept and, 21 Rorty: Contingency, 7. 22 Ibid., 91. 23 Rorty, Richard / Vattimo, Gianni / Zabala, Santiago (eds.): The Future of Religion, New York 2005. 24 Rorty, Richard: Anticlericalism and Atheism, in: Rorty, Richard / Vattimo, Gianni / Zabala, Santiago (eds.): The Future of Religion, New York 2005, 29–42, 37.

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instead, derive normative claims from metaphysical or anthropological assumptions. This means that they cross the boundary between the private and the public and, thereby, make a generalization which cannot be justified sufficiently. By doing so, Rorty stresses, they attack the liberal order: “It is the view that ecclesiastical institutions, despite all the good they do—despite all the comfort they provide to those in need or in despair—are dangerous to the health of democratic societies.”25

Rorty concluded that religions always risk becoming a conversation stopper. The most important reason religion “needs to be privatized is that, in political discussion with those outside the relevant religious community, it is a conversationstopper.”26 Concerning many social and political issues, Rorty accuses religion of generalizing private convictions, blocking (if not even preventing) democratic deliberation and, thereby, undermining the specific framing of liberalism.27 Not only Habermas, but many pragmatist philosophers in the U. S. criticized Rorty’s concept of religion. Most of them remained skeptical about the restriction of religions to the private sphere. Of course, religions are always ambivalent phenomena, but should not on that account alone be expelled automatically from democratic deliberation.28 The consequence of Rorty’s concept of the limited role of religion in the public sphere could easily be extrapolated to the global scale. In this context, human rights again play a central role. Concerning globalization, Rorty’s main message is: People should support and even fight for freedom and liberal rights, because both are the best and influential mean to overcome cruelty. Looking back in history, Rorty identifies human rights as the most effective political mechanism to overcome harm, strengthen solidarity and develop free and peaceful societies. For that reason Rorty argues for liberal values as only political hope for a better world. Sometimes these values also have to be defended militarily. Concerning Habermas’ reflections on cosmopolitanism in the tradition of Kant, Rorty remained very skeptical. Building new theories of solidarity, as most of the left-leaning academics do, would not in his estimation help to improve the world and overcome injustice and harm. Instead, academics should stop theorizing and, start fighting for liberal values and rights.29 Facing global 25 Ibid., 33. 26 Rorty, Richard: Religion as Conversation Stopper, in: Common Knowledge 3/1 (1994), 1–6; 4.  27 Only in his later works does Rorty stress that the sacred could be connected to the hope for solidarity. In that sense, God or the sacred is a symbol of the hope for a global civilization in which love is the only law. Rorty, Richard: Philosophy as Cultural Politics, Cambridge 2007. 28 Stout, Jeffrey: Rorty on Religion and Politics, in: Auxier, Randall E. / Hahn, Lewis E. (eds.): The Philosophy of Richard Rorty, Chicago 2010, 523–545. 29 Rorty, Richard: Achieving Our Country: Leftist Thought in Twentieth-Century America, Cambridge 1998.

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challenges, human rights seemed to be one of the most convincing and powerful expression of liberal values for which people should fight. Rorty argues that there is no universal human nature beyond human rights and that it doesn’t make any sense to theorize about human rights. José-Manuel Barreto labels this assertion an epistemic and ontological anti-foundationalist concept of human rights.30 What does this mean for understanding religions as global actors? Of course, some religions are fighting to overcome cruelty and to strengthen solidarity. But although if religions support global solidarity in this way, Rorty, again, is skeptical. In contrast, he wants to bring all religious leaders to Western universities, in order to study the liberal interpretation of human rights. “We can still say to the rest of the world: send your people to our universities, learn about our traditions, and eventually you will see the advantage of a democratic way of life.”31

Only if they understand the liberal aim of human rights, would such leaders be capable of supporting freedom, justice, and peace in a globalized world. Any other aspects of religions, just like concepts of the good life, should be reduced to the private sphere, also, and especially, on the global scale.

3. Comments on Habermas’ and Rorty’s Interpretation of Religions Liberals such as Rorty tend to reduce religions to the private sphere. Rorty’s considerations demonstrated that he firmly restricted processes of religious identity and their (political) implications to the private sphere. Similar to Rawls, Rorty proposes a narrow understanding of the social function of religions (in spite of the emphasis on irony). Arguably, he does so even more narrowly than does Habermas, because Rorty hardly provides any possibilities by which one could constructively translate religious semantic potentials into a secular language. Not until the end of his career did he indicate such possibilities by using the notion of ‘cultural policy’.32 The pragmatist critics have repeatedly raised the question of whether Rorty’s (liberal) thesis of the privatization of religion could actually be brought into accordance with the pragmatist assumptions of Dewey or William James. Indeed, Dewey and James were also skeptical of institutionalized religious communities and their monopoly of power over the interpretation of religious experiences. 30 Barreto, José-Manuel: Rorty and Human Rights: Contingency, Emotions and How to Defend Human Rights Telling Stories, in: Utrecht Law Review 7/2 (2011), 93–112; 96–99. 31 Rorty, Richard / Vattimo, Gianni / Zabala, Santiago: Dialogue: What is Religion’s Future After Metaphysics?, in: Rorty, Richard / Vattimo, Gianni / Zabala, Santiago (eds.): The Future of Religion, New York 2005, 55–82, 72. 32 Rorty: Philosophy as Cultural Politics.

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However, several critics have pointed out that Rorty’s interpretation of religion overemphasized the liberal arguments which are, indeed, implied within original pragmatist theories but, nevertheless, lack their logical stringency. “In effect, Rorty’s thinking on religious beliefs marks a significant departure from his pragmatic forebears, even though he employs (especially Dewey) to bolster his own position”.33 Following Dewey, the privatization of religious beliefs, for example, would actually have to be rejected because it stands in opposition to his calls for a diversity of experiences. “In the end, then, Dewey and James would have found Rorty’s proposed privatization of religious beliefs antithetical to the pragmatic point of view they so enthusiastically endorsed and promoted.”34

Since the 1980s, Jeffrey Stout, in particular, has developed an alternative inter­ pretation of religious practices based on pragmatist arguments. This interpretation provides an alternative to Rorty’s strict thesis of privatization and, thereby, re-measures the political location of religion from a pragmatist perspective. Stout develops his pragmatist reading, in particular, by distinguishing it from Alasdair MacIntyre and Rorty. He rejects McIntyre’s epistemological foundationalism as a reason for political liberalism, while stressing at the same time that it is possible to read liberalism as a non-foundational theory.35 From a philosophical point of view, social practices consist of the bricolage of different convictions, which, in turn, are retroactive to the praxis of the lifeworld. “The pragmatic approach being pursued here assumes […] that norms are initially implicit in practice. Material inferential commitments are full capable of guiding action, of functioning normatively, without taking the explicit form of a rule.”36

Hence, religious beliefs are always ‘a rational part’ of social practices. In comparison to Rorty, Stout criticizes the strict separation between public and private and argues for the possibility of mixing social practices, which, he argues, should not be expelled from the public sphere using the criterion of reasonableness. Stout argues that pragmatist philosophy has the political-philosophical task of reconstructing the whole of all experiences and the corresponding ideas of the good that are implied within social and cultural practices.37 33 Flashberty, James: Rorty, Religious Beliefs, and Pragmatism, in: International Philo­ sophical Quarterly 45/2 (2005), 175–185, 175. 34 Flashberty: Rorty, 185. 35 Stout, Jeffrey: Ethics After Babel: The Languages of Morals and their Discontents, Boston 1988. 36 Stout, Jeffrey: Democracy and Tradition, Princeton 2004, 286. 37 Stout, Jeffrey: Radical Interpretation and Pragmatism: Davidson, Rorty, and Brandom on Truth, in: Frankenberry, Nancy (eds.): Radical Interpretation in Religion, Cambridge 2002, 25–52; Joas, Hans: Religious Experience and its Interpretation: Reflections on James and Royce, in: Deuser, Hermann / Joas, Hans / Jung, Matthias / Schletter, Magnus (eds.): The Varieties of Transcendence: Pragmatism and the Theory of Religion, New York 2016, 219–235.

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One can conclude that with regard to politics, that religion should not automatically be interpreted as a conversation stopper.38 This is true for the diversity of religious phenomena as well as for institutionalized religious communities. Indeed, religions remain ambivalent regarding their orientation to ‘an absolute’, but, therefore, should not be expelled from democratic deliberation for that reason. Rorty’s critique of religious communities, Stout concludes, was based on liberal scepticism about authoritarian and freedom-restricting power structures, which is why Rorty tends to assume that atheists are better people than believers. “This explains why many of his writings project a utopia in which theists not only keep their religious convictions private, but eventually pass from the scene altogether.”39 Stout argues that this thesis is neither empirically nor systematically convincing. Firstly, excluding citizens from public deliberation or even demanding that they completely relinquish their faith can hardly be justified from a liberal perspective. “They will continue believing what they believe and acting on the apparent political implications of their beliefs regardless of whatever liberal advice they hear to change their ways”.40

Secondly, Stout argues, Rorty conceptualized the democratic common sense as a secular-liberal agreement between citizens. From a pragmatist perspective, this is misleading, in terms of action-theory and epistemology.41 Consequently, from a pragmatist standpoint, there exists not one rational agreement between all citizens, but instead a diversity of practices that need to be coordinated with one other. Therefore, even religious beliefs that are based on religious experiences cannot completely be isolated, rather, they form a common praxis together with other convictions. Habermas would also not agree with Rorty’s argument. From his point of view, religions function as social and political actors. They not only play an important role in the private sphere but they also in the public sphere provide social capital or moral background for public deliberations. They help prevent modern societies from losing their moral orientation. Habermas’s argument nonetheless also creates some problems. These problems can be analyzed reflecting the distinctions between faith and reason and morality and ethics, which both seem problematic. For Habermas, faith and reason represent two incommensurable intellectual forms that are clearly separate from one another. Hence, philosophy only can reconstruct the contents of religions in a universally accessible language and take account of their normative or political messages under the conditions of 38 Stout, Jeffrey: Presidential Address: The Folly of Secularism, in: Journal of the American Academy of Religion 76/3 (2008), 533–544. 39 Stout: Presidential Address, 535. 40 Ibid., 539. 41 Stout: Democracy and Tradition 295 f.

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the liberal state. Thus, the plea for making a sharp distinction between faith and reason is directed against tendencies to overstrain the concept of faith. Religion is ‘the other’ of reason. “Moral-practical discourses, by contrast, require a break with all of the unquestioned truths of an established, concrete ethical life, in addition to distancing oneself from the contexts of life with which one’s identity is inextricably interwoven.”42

This distinction between faith and reason is closely connected to the separation between the moral and the ethical uses of practical reason. When human beings make an ethical use of their reason, they express material values which are embedded in their lifeworlds. Ethical questions are situated at the individual level. In the moral domain, by contrast, universal claims can be raised. They are the product of ideal communication processes. Habermas here employs a narrow, formal concept of morality when he emphasizes the moral domain of discursive justification. The role of philosophy follows from this separation between morality and ethics. And these distinctions also explain the classification of religion in the concept of post-secular societies. The question remains: Can morality and ethics be separated as Habermas proposes? The justification of ethical worldviews ultimately rests on the assumption that they are cognitively accessible. This would also be the case for religious arguments. The fact that the competition between ethical and religious worldviews cannot be decided in a rational manner is not in and of itself a sufficient reason to insist upon making such a clear separation. On the contrary, ethical worldviews also are cognitively accessible. Religions not only represent a resource for the individual citizen but they also represent normative concepts for which rational grounds can be adduced. Ultimately, this line of reflection also leads us to question Habermas and ask whether the separation between morality and ethics rests on a too narrow understanding of religion, which should instead be conceived more broadly.

Conclusion: Global Perspectives on Religions, Human Rights, and the Political If we combine the pragmatist idea about the importance of (religious) experience and the awareness of Habermas for the social and political function of religions in public debates, one can develop an alternative and convincing understanding of religions in post-secular societies. From such a point of view, it becomes clear that religions should not be interpreted as systems of theologically founded convictions or as opaque decisions made by individual believers. Rather, they form part of a cultural praxis that affects the whole human being and the reality 42 Habermas, Jürgen (ed.): Justification and Application: Remarks on Discourse Ethics, Cambridge 1991, 12.

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of human life, and they are reliant on the diverse experiences of the human being. Religions can be understood as cultural forms that deal with religious experiences, whereby they constitute a social praxis that makes a broad claim towards religious people. These experiences enable human beings to go beyond themselves and refer them to a ‘More’, a transcendence. From this reference to a transcendence, a comprehensive demand for the interpretation of human experiences and the normative orientation of human action can be derived which is, simultaneously, connected to a high potential of motivation. Thereby, religion enables: “A linguistic and symbolic interpretation of fundamental human experiences, constitutes inner-religious modes of behaviour or, more specifically, interpretations of the world and, finally, provides to society as a whole a culturally anchored form of communication with which to interpret the relationship of immanence and transcendence.”43

Such an understanding of religion as a ‘web of experiences’ and practices means that religion is a social and cultural phenomenon that cannot be reduced to the individual decisions made by a single person. This interpretation of religion is marked by the insight “that religious beliefs and spiritual experiences depend on notions and practices that, in turn, cannot be divided from certain forms of life”.44 The starting point for the constitution of these practices are experiences that believers make and which affect the whole human being. Religious beliefs that emerge from these experiences tend to provide a broad orientation for believers and their life plan. Hence, religious beliefs are at least—perhaps even primarily—the expression of a certain attitude towards the world. They can change mind-sets and perceptions of reality. They have a regulative function for the way people behave in their everyday life. The interpretation of religious experiences always takes place within a social praxis that enables their linguistic and symbolic processing. If religions represent a social and cultural praxis, it is impossible to reduce them automatically to the realm of private self-creation. Instead, religion needs to be understood as a praxis that shapes both private and public life. Religion “should be placed in more of an inter-mediate position in modern society. As a social form it is not totally outside the public realm in that it still has some influence, both nationally and internationally”.45 However, the more liberal assumptions are stressed, as in the case of Rorty, the more the reciprocal relation between public and private, which is characteristic of so many social and cultural practices, will be disregarded. 43 Reder: Religion in säkularer Gesellschaft, 348 f. (translation by author). 44 Arenhövel, Mark: Über das Befriedungspotenzial der Religionen in der postsäkularen Gesellschaft, in: Brocker, Manfred  /  Hildebrandt, Matthias (eds.): Friedensstiftende Religionen?: Religionen und die Deeskalation politischer Konflikte, Wiesbaden 2008, ­158–178, 178 (translation by author). 45 Wallace, Ruth A.  : Religion, Privatization and Maladaptation: A Comment on Niklas Luhmann, in: Sociological Analysis 46/1 (1985), 27–31, 29.

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Like social and cultural practices, religions are useful for social and political life, because they express ideals of a holistic self and therefore help humans to deal with reality. Religions do remain undoubtedly ambivalent phenomena, as Stout rightly points out. Historically, all religions have been sources of justice, peace, and humanity (as ideals of usefulness for life) as well as sources of injustice, violence, and inhumanity. This also applies to all religious traditions today. In this perspective, religious experiences and their interpretations were and still are being exploited in some regions.46 The roots of this ambiguity do not only lie in the religions themselves. Political, economic and social conditions always provided other important sources for the ambiguity of religions. Quite often, religions have been exploited to improve the social conditions of particular groups or to strengthen a political order in favour of such groups. In addition, sometimes, religions (understood as institutions) or religious leaders within these institutions have exploited religious experiences for their own interests. This is why authors like Dewey of Rorty were skeptical of religions as institutions. But these instrumentalizations should not be taken as an excuse to exclude religions from democratic deliberation a priori. Thus, religions should be integrated and taken more seriously in public debates. As actors and cultural practices they also participate actively in the public debate surrounding various global challenges, like for example climate change or development.47 Thus, they create an awareness among their believers (and often far beyond)  for related problems and to develop suggestions for political solutions. In an intercultural world, their contributions should be considered not only if they have passed the filter of practical deliberation. More generally, such world views (e. g. including individual concepts of a good life) always provide the bases of the political in general. Hence, moral values and political solutions are not (only) accepted because of an abstract reason but also because they are incorporated in common beliefs that motivate citizens to be actively engaged in social discourses and political processes.48 This alternative perspective on religions as social actors also implies some important consequences for the concept for the political in general, and human 46 Müller, Johannes / Reder, Michael: Religions and Global Justice: Reflections from an Intercultural and Inter-religious Perspective, in: Mack, Elke / Schramm, Michael / K lasen, Stephen / Pogge, Thomas (eds.): Absolute Poverty and Global Justice. Empirical Data—Moral Theories—Initiatives, London / New York 2009, 91–99. 47 Reder, Michael / Müller, Johannes: Cultures and Religions, in: Edenhofer, Ottmer / ​Wallacher, Johannes / Lotze-Campen, Hermann / Reder, Michael / K nopf, Brigitte / Müller, Johannes (eds.): Climate Change, Justice and Sustainability: Linking Climate and Development Policy, New York / London 2012, 111–118. 48 For example, this is again also the case concerning climate or development policy strategies. Political programmes will only be effective if people integrate climate issues into their own cultural and religious practices. In this way, religions provide an important foundation for concrete political challenges. See Reder / Müller: Cultures and Religions, 115 f.

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rights as global a instrument in particular. Thus, reflecting on religions in post-secular societies helps to develop a broader and sufficient concept of global politics and human rights.49 They are neither only juridical rights nor a political program to support liberalism. From a deliberative-pragmatic view, they are a multi-level practice (juridical, political, moral), in which different cultural traditions are embedded.50 They are accepted because they are incorporated in various global practices. Global discourses regarding issues such as the Millennium Development Goals or sustainable climate policy are both examples of this. The Universal Declaration of Human Rights (UDHR)—which the global community has already agreed upon—seeks to provide answers to the manyfaceted specific experience of injustice. From this standpoint, ethical measures are determined with reference to concrete political realities. In many political discussions about different aspects of globalization, reference continues to be made to human rights.51 Ethically speaking, human rights are about letting all people lead a dignified life. Human rights invocations are intended to protect the necessary foundations for such a life. They also play a major role in political philosophy. Independent from ethical reasons in meta-ethical perspectives, human rights function as moral standards in relation to the different challenges of globalization.52 As the history of the origin of the UDHR also shows, discourses about human rights emerged first as a response to specific suffering and injustice.53 Habermas calls this the normative foundation of human dignity that are implied in human rights. “I would like to argue that changing historical conditions have merely made us aware of something that was inscribed in human rights implicitly from the outset—the normative substance of the equal dignity of every human being that human rights only spell out.”.54 49 For detailed reconstruction of such a concept of human rights and its critical aspects see e. g. Reder, Michael: Climate Change and Human Rights, in Edenhofer, Ottmer / Wallacher, Johannes / Lotze-Campen, Hermann / Reder, Michael / K nopf, Brigitte / Müller, Johannes (eds.): Climate Change, Justice and Sustainability: Linking Climate and Development Policy, New York / London 2012, 61–71; Reder / Müller: Cultures and Religions; and Reder, Michael / Köhler, Lukas: Human Rights as a Normative Guideline for Climate Policy, in: Düwell, Markus / Bos, Gunther: Human Rights and Sustainability—Moral Responsibilities for the Future, Oxford 2016, 123–136. 50 Reder: Climate Change and Human Rights; and Brieskorn, Norbert: Menschenrechte. Eine historisch-philosophische Grundlegung, Stuttgart 1997. 51 United Nations Human Rights Office of the High Commissioner: Transforming Our World. Human Rights in the 2030 Agenda for Sustainable Development, New York 2015. 52 Habermas, Jürgen: On the Concept of Human Dignity and the Realist Utopia of Human Rights, in Metaphilosophy 41/4 (2010b), 464–480; and Walzer, Michael: Human Rights in Global Society, in: Internationale Politik—Transatlantic Edition 6/1 (2005), 4–13. 53 Müller, Johannes: Entwicklungspolitik als globale Herausforderung. Methodische und ethische Grundlegung, Stuttgart 1997, 98–120. 54 Habermas: Human Dignity, 467.

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As a reaction to experiences of injustice, individuals or certain groups have become active in advocating human rights. They aim to protect those who are disadvantaged, discriminated against or excluded from society. In this regard, human rights apply to all people, not only to the citizens of one state. They express a cosmopolitan perspective that provides the theoretical background for the invocation of human rights: “The same rights that apply within the state also apply at the global level”.55 Human rights apply to all people living today, locally and globally. Implemented as a reaction to a specific suffering and injustice, human rights apply universally to all humankind.56 “Human rights represent moral ‘thresholds’ below which people should not fall. They designate the most basic moral standards to which persons are entitled”.57 This means that satisfaction of human rights is a minimum standard and hence a necessary (though not sufficient) condition for a global policy to be morally admissible and just.58 Reflecting on the social and political function of religions in modern societies, we have seen the limitations both of the liberal and deliberative approaches. One important reason, beside others, is, that these approaches imply a narrow understanding of politics, which conceptualizes the political under the umbrella of the concept of politics. This approach takes for granted some unexamined fundamental binaries, such as the difference between religious and secular practices, or private and public. My argument has shown that this concept of the political is insufficient because building political institutions is always based on diverse and conflictive practices in the social, cultural and political field. These are the fundaments, and, one might say, the ‘engine’ of democracy, and, thus, also of the political. 55 Caney, Simon: Human Rights and Global Climate Change, in: Pierik, Oland / Werner, Wouter (eds.): Cosmopolitanism in Context: Perspectives from International Law and Political Theory, Cambridge 2010, 19–44, 23. 56 However, human rights always need further development to face new global problems and forms of injustice. This is also true in view of new global challenges and their con­ sequences as well as in the multiple connections between climate change and poverty. For example, it is convincing to analyse the effects of the impacts of climate change on human rights, as Caney points out: “My argument is simply that a human rights perspective has important insights and any account of the impacts of climate change which ignores its implications for people’s enjoyment of human rights is fundamentally incomplete and inadequate”; Caney, Simon: Climate Change, Human Rights and Moral Thresholds, in: Humphreys, Stephen (ed.): Human Rights and Climate Change, Cambridge 2010, 69–90, 89. 57 Caney, Simon: Climate Change, Human Rights, 71. 58 Of course, also human rights are discussed controversially. In some East Asian countries, e. g. traditional values often carry more weight than liberalism which for many are almost a synonym for human rights. These people argue that their cultural and religious values have priority in their social and cultural environment, for example, community over the individual, harmony instead of conflict, or respect for authority instead of freedom of opinion. These positions shouldn’t simply be interpreted as clichés even if they often are. Such rejection of western values is often based on genuine fear of the collapse of cultural traditions.

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Thus, human rights as framework and guideline of the global political sphere likewise cannot be reduced to a liberal interpretation. Human rights are neither merely juridical rights nor solely political mechanisms to support liberalism as a political ideal. Instead they must be understood as an expression of the globally formed political. The normative fundament of human rights are diverse cultural formed practices, which focus on the ‘precarious life’ and support people who have to suffer injustice. In that sense, the concept of human rights as political practice is closely related to the concept of religious practices. Thus, human rights should rather be considered as an expression of cultural practices of that which constitutes a good life. They are based on such cultural values and cannot be separated from them. Thus, it remains an essential task to see human rights in terms of an interchange of cultural and religious plurality of values. In fact, they are and have been for a very long time, a plural practice, within which religions will remain for the foreseeable future to be political actors in a multicultural world. The previous argumentation started with an analysis and reflection of Habermas’ and Rorty’s concepts of religion and human rights. The paper has shown advantages and critical aspects of their approaches. While the essay is based on a comparison of a German–American exchange in philosophy, this discussion, of course, has a global dimension. Especially the conclusive remarks demonstrate these global implications of both approaches that transcend the initial debate between Rorty and Habermas. Thus, the discussion of this debate helps to clarify our understanding of religions as global actors within the political framework of human rights. The main argument of the essay is that we should avoid a narrow concept of politics concerning this debate, but to widen the perspective to a global sphere of the political in order to develop a sufficient concept of political processes in times of globalization.

Hans-Georg Ziebertz

Human rights and the concept of dignity: an empirical perspective

Human rights claim universality, equality and indivisibility, but, according to empirical studies, different rights are evaluated diversely and people’s attitudes towards human rights depend on a variety of contexts. If universality, equality and indivisibility represent the desired ideal, what is reality in social practice? The question, what people know about human rights and how they perceive and evaluate them is highly relevant; it is a crucial condition for the development and success of a human rights culture. It is also important for any theoretical reflection if theory does not want to dispense with practice. To explore practice, empirical research is needed. Empirical research does not directly contribute to the legal discussion, but it shows how people think about human rights. This line of research helps to explore how human rights are felt to be legitimated by the people. In the long run, it is problematic for a society wherein the gap between the legal discussion and the ideas in practice continues to widen. This essay cannot offer research on all areas of human rights. Instead, it concentrates on the concept of human dignity that is relevant in many human rights documents. That focus enables us to answer three questions: First, how do young people understand human dignity? Second, which factors explain the respondents’ support for inherent dignity? And third, is human dignity a relevant concept regarding the attitudes towards human rights?

1. Human dignity and human rights The modern understanding of human dignity was first articulated by Immanuel Kant. He distinguishes between general human needs and something that has an end in itself. What constitutes human needs is a question of taste; it has a marked price and a relative value. What signifies the condition under which something can be an end in itself has an intrinsic value rather than a relative one. That condition is morality—and humanity is capable of morality, which means that only morality has dignity.1 Morality is based on autonomy, which is the basis of the dignity inherent in human nature. Human beings are able to make reasonable decisions based on rational considerations, and they can control their desires 1 Rosen, Michael: Dignity: Its History and Meaning, Cambridge 2012, 20–21.

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and impulses; in short, human beings are capable of moral behavior and they have the moral law within them. This capacity is what all human beings have in common. Dignity does not depend on whether and, if so, how life is practiced in moral terms, but it is based instead on the capacity for moral behavior. According to Kant, the full meaning of dignity is restricted to human beings alone since they are the only creatures who are characterized as having autonomy. Michael Rosen maintains that autonomy has a different meaning for Kant; it is not the modern understanding of autonomy (freedom of choice and of lifestyle), but for Kant, autonomy contains two concepts: the autos and the nomos (self and law). “What Kant has in mind as autonomy is the idea that the moral law which we must acknowledge as binding upon us is ‘self-given’.”2 Kant developed the concept of human dignity as a moral principle. Thus, human dignity is based on morality, and morality is an inherent characteristic of humanity. Throughout cultural history, the meaning of the concept “human dignity” has changed considerably.3 According to one tradition, dignity is regarded as contingent upon certain properties. This property can be social; thus, dignity is related to a person’s social role and social function (e. g., someone’s dignity depends on his or her position as judge, bishop, or president). The expressive dimension is associated with a person’s behavior; someone is said to demonstrate dignified behavior if he or she is able to control his or her desires and emotions (e. g. in conflict situations). In other words: expressive dignity in behavior is a noble conduct. Aesthetical dignity relates to dignified bodily movement (e. g., a priest conducting the liturgy; those taking part in a funeral); and it also relates to buildings (e. g., cathedrals) and certain places (e. g., cemeteries). Thus, it can be noted that that people project dignity when certain roles are performed, a certain behavior is followed, and when they are connected to numinous objects.4 The Latin term dignitas is a translation of the Greek axioma, which relates dignity to someone’s social origin, social position and behavior. Cicero connects dignitas with ratio: Man has reason and intellect hence the human person is not fully determined by nature. Human beings are able to act rationally, and this sets them apart from animals.5 Human beings can eschew pleasure, resist their impulses and choose to live frugally and abstemiously. If dignity is an observable and desirable phenomenon of behavior, then it is a normative ideal for people to behave accordingly. Human beings are obliged to use their abilities to act with dignity—but they may also fail.6 The fact that failure is possible underpins the 2 Rosen: Dignity, 25.  3 Ziebertz, H.-G. / Döhnert, S. / Unser, A.: Predictors of Attitudes Towards Human Dignity: An Empirical Analysis Among Youth in Germany, in: Ziebertz, H.-G. / Sterkens, C. J. A.: Religion and Civil Human Rights in Empirical Perspective, Heidelberg 2017, 17–60. 4 Schaber, Peter: Menschenwürde: ein für die Medizinethik irrelevanter Begriff?, in: Ethik in der Medizin 24/4 (2012), 20–21. 5 Rosen: Dignity, 12. 6 Schaber: Menschenwürde, 21–23.

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view that dignity is related to a certain “way of life” representing the contingent tradition of the concept, even though this view includes the notion that human beings can transcend behavior that is determined by nature.7 In Pico della Mirandola’s reflection on human nature, the distinctiveness of man is mainly rooted in the fact that man can decide whether to live according to any preordained role. In other words, (only) human beings are free to use the capacities provided for them by the Creator (God). Mirandola took the argument further and declared that dignity can be regarded as a characteristic of all human beings; that it cannot be reduced to social roles or behavior, but that is was a condition of man based on the will of the Creator. However, what happens if people use their abilities in an undesirable way? Thomas Aquinas wrote in the Commentary on the Sentences that “dignity signifies something’s goodness on account of itself.”8 Aquinas’s words could be understood as supporting the concept of inherent dignity. Nevertheless, Christianity in the thirteenth century operated with a dual concept of dignity. One dimension stemmed from the belief that the image of God is mirrored in man and that human beings share the dignity of God. The other dimension emphasized that man is part of God’s creation and that therefore humans are challenged to realize God’s plan of creation in their lives. Hence, dignity is bestowed on a person when he or she behaves according to God’s plan. It also follows that dignity can be dwindle away when human beings sin. Behavior, therefore, is still an important element of dignity. Aquinas states that, as a result of free will, man is able to decide between right or wrong, for or against God.9 Against this background dignity is a precious gift, but nevertheless contingent since it depends on behavior. In all these cases human dignity can dwindle, either because someone failed to live according to God’s will, or because he or she has lost a certain social status. Although this elaboration on the meaning of dignity shows that the term has different aspects, dignity remains in this instance dependent on behavior and status. The term dignity is related to duties, but not to rights. This understanding of human dignity remained the dominant philosophy in Europe until the Enlightenment. Today, the interpretation of the concept of dignity still presents a challenge. Friedrich Nietzsche polemicized against dignity as a “conceptual hallucination” and Marx called it an “empty phrase.” Such dismissive opinions illustrate the most important question that must be answered: Is dignity a superfluous term that should be replaced by other concepts? There exist, currently, numerous attempts to define this concept more precisely. Some authors vote for a substantive operationalization of the term and specify those concrete rights that

7 Wetz, Franz J.: Texte zur Menschenwürde, Stuttgart 2011, 211–224. 8 Aquinas quoted in Rosen: Dignity, 16. 9 Schaber: Menschenwürde, 23–24.

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characterize human dignity.10 These authors understand human dignity as a collective term delineating a series of specific rights (fundamental rights) which can be distinguished from others (lesser or non-fundamental rights). Still, this attempt creates new problems: Why choose one content rather than another? How realistic is the possibility of a consensus when the decision regards substantive definitions? Furthermore, the concept of human dignity is challenged by naturalism; according to naturalism humankind is a product of evolution and thus human beings are natural beings. Ideas of the Enlightenment that man is a special species, distinguished by reason, self-consciousness and a free will, are incompatible with naturalism.11 In other words, the empirical basis of important preconditions is now subject to heavy criticism. This criticism is even more marked when it involves religious interpretations of the dignity concept, especially as these interpretations relate to transcendent claims. Those who address the question of dignity from a religiously committed position doubt that inherent dignity can be defined without referring to transcendence. Martin Kriele maintains that the idea of human dignity originates both in Stoic philosophy and in the Christian tradition and therefore, the concept of dignity is not something that can be deliberated without referring to these metaphysical roots.12 According to Kriele, although the protagonists of the Enlightenment avoided (religious) metaphysics, they did not eliminate transcendent reasoning. The German sociologist Hans Joas has, in response to such convictions, proposed the term “sacralized person” to substantiate the emergence of the term “human dignity.”13 However, in today’s globalized pluralist society, there exists no common worldview and no unified idea of what constitutes the human being. An absence of a uniform denominator that defines the term “man” seems to be very unsatisfactory, both for individuals and for the world community. To bridge this gap, the term “human dignity” is used, a term that provides a core concept to establish basic rights. The concept of dignity (more precisely: the concept of inherent dignity) is generally accepted. Both religious and non-religious parties agree with such an understanding. Johannes Reiter claims that, if dignity is understood as inherent to all human beings, then it is rather irrelevant whether we assume that dignity is indeed “given by God,” or simply just a “given.”14 10 Birnbacher, D.: Mehrdeutigkeiten im Begriff der Menschenwürde, in: Aufklärung und Kritik 1 (1995), 4–13. 11 Wagner, Hans: Die Würde des Menschen: Wesen und Normfunktion, Würzburg 1992. 12 Kriele, Martin: Befreiung und politische Aufklärung: Plädoyer für die Würde des Menschen, Freiburg 1980. 13 Joas, Hans: The Sacredness of the Person: A New Genealogy of Human Rights, Frankfurt / Washington D. C. 2011/2013. 14 Reiter, Johannes: Menschenwürde als Maßstab, in: Bundeszentrale für politische Bildung (ed.): Aus Politik und Zeitgeschichte 23–24 (2004), https://www.bpb.de/apuz/28290/ menschenwuerde-als-massstab?p=all, accessed 03.07.2019.

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Despite the philosophical debate about the precision, explicitness and unambiguity of the concept of dignity, there is no doubt that dignity is fundamentally important for the contemporary understanding of human rights.15 In practical policy, the United Nations and the European Union agree that human dignity legitimizes and justifies individual rights. Human dignity seems to express best the fundamental ethical concern to substantiate all claims for humanity comprehensively. Dignity is therefore recognized as the legal concept that precedes all other rights. Since the Universal Declaration of Human Rights (UDHR) in 1948, declarations of human rights have referred to human dignity as a key concept for human rights, or even their very foundation. The UDHR (1948) uses the term “inherent dignity” in its preamble and states that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”16 All human beings are born free and equal in dignity and rights (art. 1) and everyone has the right to life, liberty and security of person (art. 3). The International Covenant on Civil and Political Rights (1966) makes very specific statements regarding the foundational character of human dignity.17 In its preamble, the document declares: “Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. Recognizing that these rights derive from the inherent dignity of the human person … [contracting states] agree upon the following articles …” This international Covenant argues that every human being has an inherent right to life and that law shall protect this right and that no one shall be arbitrarily deprived of his or her life. Human dignity is also the subject of the preamble and article 1 of the Charter of Fundamental Rights in the European Union (2000).18 The preamble states “conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by

15 Grimm, Dieter: Dignity in a legal context: Dignity as an Absolute Right, in: McCrudden, Christopher (ed.): Understanding Human Dignity, Oxford 2013, 381–391; Lohmann, G.: Nicht affektive Ergriffenheit, sondern öffentlicher Diskurs. Sakralisierte Person oder säkulare Menschenwürde als Basis der Menschenrechte, in: Große Kracht / HermannJosef (eds.): Der moderne Glaube an die Menschenwürde, Bielefeld 2014, 13–27, 18–20. 16 “Preamble” to the “Universal Declaration of Human Rights,” United Nations, General Assembly resolution 217A, Dec. 10, 1948. 17 “International Covenant on Civil and Political Rights,” United Nations, General Assembly resolution 2200A, Dec. 16, 1966. 18 “Preamble” and “Article 1,” to the “Charter of Fundamental Rights in the European Union,” European Union, Dec. 7, 2000.

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creating an area of freedom, security and justice.” Article 1 of this charter adds: “Human dignity is inviolable. It must be respected and protected.” Similar quotations are used by constitutions of nation states, where human dignity functions as a legitimizing concept for basic rights. That applies especially to the Federal Republic of Germany. In article 1, the Fundamental Law [Grundgesetz] declares: “Human dignity is inviolable. To respect it and protect it is the duty of all state power. The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.” These examples confirm the strong connection between human dignity and human right, even though it can be argued philosophically that it is not clear how dignity functions as a basis of rights and what rights it actually produces. Is there endorsement of the Kantian formula of universal law “to act only in accordance with that maxim through which you can at the same time will that it becomes universal law?” Is there a direct line from equal dignity to equal rights?19 Despite the ongoing debate about the status of the concept of dignity, in practice it functions as the foundation of those rights that people possess because they are human beings. In a social sense, human rights are founded in the mutual recognition of human dignity—a recognition that is determined by respect, sympathy and care, especially regarding the most marginalized. In an institutional sense, they are created in judicial institutions that protect this human dignity.20 The socalled first generation of human rights may thus be considered as a judicial elaboration of human dignity in terms of civil, political and judicial freedoms and rights. Similarly, the so-called second generation of socioeconomic rights, which include economic, social security, and cultural rights, may be conceived of as a shield to protect human dignity, particularly that of specific groups like women, children, homosexuals, refugees, etc. These rights are co-equal and there is no priority between them, as the Vienna Declaration and Program of Action (1993) points out. An empirical investigation of how respondents understand human dignity allows us to ask whether the concept of dignity matters regarding the acceptance of human rights.

19 Rosen: Dignity, 55. 20 McCrudden, Christopher: Human Dignity and Judicial Interpretation of Human Rights, in: The European Journal of Law 19/4 (2008), 655–724.

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2. Methodological context The framework of this essay is provided by the international empirical research program Religion & Human Rights.21 The core element of the cooperation lies in several comparative empirical studies on attitudes towards human rights. Scholars from 25 countries and different disciplinary backgrounds participate in the program. The aim is to gain an insight into how young people evaluate human rights and what influences their agreement or disagreement. Religious beliefs and attachments as well as social and political convictions, value orientations, personality traits and sociodemographic characteristics were chosen as concepts that potentially influence these attitudes.22 The intentions of the explorative research program Religion & Human Rights are to determine theoretically and socially relevant relations between religion (religious convictions and practices) and attitudes towards human rights, or more precisely, to reveal the direction of these relations regarding the impact of religion on human rights attitudes and formulate theoretically and empirically legitimate hypotheses about the impact of religion on human rights attitudes. The program strives to develop tentative relevant conclusions for advancing human rights culture, concentrating especially on human rights education. The focus in what follows here is restricted to the concept of human dignity. The conviction that human rights are vulnerable inventions in constant need of protection, maintenance and improvement provides the basis for the normative context of this overall program. The continuous attention and protection of human rights is not only the responsibility of politicians and political parties, but ultimately that of the people. The question is: are people actually aware of their responsibility? To what extent do they agree or disagree with human rights, and how far are they willing to support them?23 Empirical knowledge is crucial to get an insight into this problem. It is important that people recognize the relevance of human rights, appreciate them, and identify with them. Identification is an especially necessary condition for the development of a human rights culture, a culture that not only consists of adequate knowledge of human rights but depends also on the right grasp of their meaning, interpretation, and application. In this respect, the values that determine the norms within human rights are particularly important: dignity, 21 “International Empirical Research Program: Religion and Human Rights, 2012–2019,” Julius-Maximilians-Universität Würzburg, www.rhr.theologie.uni-wuerzburg.de, accessed 03.07.2019. 22 For further research and empirical-statistical details see the series: Van der Ven, Johannes A. (ed.): Empirical Research on Religion and Human Rights, 3 vols., Leiden 2013; and Ziebertz, Hans-Georg / Sterkens, Carl / Finke, Roger: Religion and Human Rights, 2 vols., Springer 2017–2018. 23 J. A.  Van der Ven, Religion and Human Rights, 2012 Programmatic paper, www.rhr. theologie.uni-wuerzburg.de, accessed 03.07.2019.

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freedom, equality, solidarity, citizens’ rights, and justice. From this normative point of view, it is hoped that people are aware of their responsibility for these rights and able to interiorize them. Human rights are an object of study in different disciplines and each discipline offers its specific perspective. An empirical-social-scientific reflection of human rights differs from a jurisprudential and philosophical one, especially when the foundation of positive law is not the primary focus. Empirical research opens a window to the legitimacy of human rights. Legitimacy has to be distinguished from legality that refers to the fact that human rights are judicial, inscribed in human rights law. Human rights are ‘positivized’ and legitimated by their very nature. In contrast, the legitimacy of human rights refers to the extent to which people at large agree with these positivized rights, inscribed in human rights law, and how far they support them.24 The fieldwork of the participating countries in the Religion & Human Rights program was conducted in 2014–2015. The samples were chosen on the basis of agreed criteria: respondents should be in the last two years of secondary school or the first year of college / university; the average size of a national sample should be about N=1000; most of the respondents were consequently between 16 and 20 years old. The dataset used in what follows here consists of interviews with about 15000 respondents from 15 countries. Three questions were posed to the respondents: How do respondents understand human dignity?; Which factors explain respondents’ support for inherent dignity?, and Is the concept of dignity relevant for attitudes towards human rights?

3. Empirical findings on the example of human dignity 3.1 Question 1: How do respondents understand human dignity? Operationalization of human dignity

Human rights discourses comprehend human dignity as inherent dignity. Empirical research can measure whether this understanding is generally accepted or not. Although the concept of inherent dignity is the desired concept, empirically it is not appropriate to assume only one understanding of dignity. The historical development of the concept has shown that there are alternatives and some of them are still being considered. According to Lennart Nordenfelt three meanings of human dignity can be distinguished: first, human dignity of merit—indicating that dignity depends on someone’s social position.25 Dignity 24 Habermas, Jürgen: Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Cambridge 1996; Religion & Human Rights Program, 2012, www. rhr.theologie.uni-wuerzburg.de, accessed 03.07.2019. 25 Nordenfelt, Lennart: The Varieties of Dignity, in: Health Care Analysis 12/2 (2004), 69–81.

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of merit is operationalized as being dependent on society’s appreciation of the person in question. Second, human dignity of moral stature—implying that dignity depends on a person’s individual achievements or moral behavior. Third, inherent dignity, meaning that dignity is basically connected with humanity. The three dimensions are measured each by one item and the answer scheme runs as follows: 1=I totally disagree; 2=I disagree; 3=I am not sure; 4=I agree; 5=I fully agree. Human dignity of merit: “The value of a person depends on the appreciation given to him or her by others.” Human dignity of moral stature: “The honor to be given to a person depends on his moral behavior.” Inherent human dignity: “Each human being should be recognized just because he is a human being, irrespective of credit or moral behavior. Empirical findings—Diversity between people and between countries

Observing the acceptance of the three concepts of dignity in 15 countries (see Table 1) we can conclude that the concept of inherent dignity (M=3.56) does not matter most, but rather the dignity of moral stature (M=3.70) does. Students reject the concept of dignity of merit. Table 1: Human Dignity: agreement and disagreement in 15 countries (N=15374) The value of a person depends on the appreciation given to him or her by others.

M

SD

2.68

1.33

The honor to be given to a person depends on his moral behavior.

3.70

1.08

Each human being should be recognized just because he is a human being, irrespective of credit or moral behavior.

3.56

1.22

Answer scheme (five-point scale): disagree strongly (1), disagree (2), not certain (3), agree (4) and agree strongly (5). SD = Standard deviation.

A closer look shows that this picture has to be differentiated: The percentages have to be considered as well. Table 2 regards dignity of merit, Table 3 moral stature and Table 4 involves inherent dignity. The important result is that respondents do not mirror the intellectual and legal understanding of dignity. On the contrary: the answers of the respondents cover the whole range from agreement to disagreement in all three understandings. To highlight a few results: Although the mean value (average) for merit was negative, table 2 shows that N=2873 respondents agree and N=1743 agree strongly with the statement that dignity depends on the appreciation by others.

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Table 2: The value of a person depends on the appreciation given to him or her by others. N

%

1 I totally disagree

3900

25.4

2 I disagree

3536

23.0

3 I am not sure

3324

21.6

4 I agree

2873

18.7

5 I fully agree

1743

11.3

15376

100.0

Sum

About N=9700 students are convinced that dignity depends on the moral behavior of a person. Only about N=2100 reject this opinion (see Table 3). Table 3: The honor to be given to a person depends on his or her moral behavior. N

%

716

4.7

1378

9.0

3 I am not sure

3512

22.9

4 I agree

5883

38.3

5 I fully agree

3879

25.2

15368

100.0

1 I totally disagree 2 I disagree

Sum

Human dignity as inherent to being human: A huge majority accepts this concept, but N=3638 are uncertain and N=3150 reject this concept (see Table 4). Table 4: Each human being should be recognized just because he or she is a human being, irrespective of credit or moral behavior. N

%

1 I totally disagree

1141

7.4

2 I disagree

2009

13.1

3 I am not sure

3638

23.7

4 I agree

4217

27.4

5 I fully agree

4369

28.4

15374

100.0

Sum

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Between the concepts of merit and moral stature a medium significant correlation exists of r=.31, but no relevant correlation can be found between merit and inherent, and moral stature and inherent. The outcomes reveal that, national culture plays a significant role in shaping the responses.26 Youth from Moldova, India, Tanzania and Nigeria were most positive regarding dignity of merit. One might speculate that their responses resulted from the experience that “appreciation matters” in these societies. By contrast, youth from Western European countries are more critical (see Table. 5). Table 5: The value of a person depends on the appreciation given to him or her by others (merit). Means →

 = 3.50 Positive —

Switzerland

Chile

Moldova

Poland

Belarus

India

Norway

Georgia

Tanzania

Croatia

Lithuania

Nigeria

Germany Romania Answer scheme (five-point scale): disagree strongly (1), disagree (2), not certain (3), agree (4) and agree strongly (5)

Youth in India, Tanzania and Nigeria appreciate that moral behavior functions as a criterion for dignity; this is also slightly accepted by youth from seven other states, while youth from five countries are rather ambivalent. An average value (mean) in the negative half of the scale (see Table 6)27 could not be found in any of the participating countries. The biggest cohesion can be discovered regarding the concept of inherent dignity (see Table 7).28 Respondents from six countries are “ambivalent positive” and those from eight countries, “very positive.”. Only youth from Romania are ambivalent negative. The question remains though, whether this is caused by the influence of Orthodox Christianity emphasizing the connection of dignity to moral behavior. A similar result could also be expected for Moldova, but the data are different.

26 The Anova Scheffè test shows 8 significant differences between these countries. 27 The Anova Scheffè test shows 6 significant differences between these countries. 28 The Anova Scheffè test shows 4 significant differences between these countries.

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Table 6: The honor to be given to a person depends on his or her moral behavior (moral stature). Means →

 = 4.00 Very positive

Countries

—

Belarus

Chile

India

Norway

Georgia

Tanzania Nigeria

Germany

Lithuania

Poland

Moldova

Switzerland

Croatia Italy Romania

Answer scheme (five-point scale): disagree strongly (1), disagree (2), not certain (3), agree (4) and agree strongly (5)

Table 7: Each human being should be recognized just because he or she is a human being, irrespective of credit or moral behavior (inherent). Means →

 = 4.00 Very positive

Countries

Romania

Belarus

Nigeria

—

Lithuania

Italy

Croatia

Georgia

Poland

Chile

Moldova

Germany

Switzerland

Tanzania Norway India

Answer scheme (five-point scale): disagree strongly (1), disagree (2), not certain (3), agree (4) and agree strongly (5)

Conclusion

The empirical picture is by no means as clear as official documents suggest. This difference cannot be explained only on the basis of an insufficient education. The abstract level of the dignity concept together with the practical social experience, indicating that the ‘appreciation given by others’ seems to correlate with dignity,

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could be responsible for the lack of substantial support for the concept of inherent dignity. 3.2 Question 2: Which factors explain respondents’ support to inherent dignity? Concepts and assumptions

The following analysis includes religion, personal awareness, and social perception.29 It can be assumed that there is a conceptual connection between these concepts and inherent dignity. For economic reasons the empirical analysis in this part includes the German respondents only. Religion Within the religious context, the notion of dignity is widely accepted. Dignity is one of the core concepts of Christian belief, since it is based on the claim that human beings are made in the image and likeness of God (Genesis 1:26–27). An elaboration of this concept by the Catholic Church can be found in the papal encyclical Dignitatis Humanae and in the Catechism of the Catholic Church (CCC , no. 1700; 1930ff).30 The German Protestant Catechism acknowledges that for a long time Protestant churches had paid more attention to human sin than to human dignity. However, attitudes changed with the rise of Humanism. While Humanism justified dignity simply because all human beings are able to reason, a central concept for the reformers was man’s justification before God. According to Luther, human dignity is the result of the graciousness of God alone.31 As far as the Eastern Orthodox Church is concerned, a strong link connects dignity and moral behavior. Dignity depends on human action. At the same time, Orthodox Christianity is convinced that man cannot abolish dignity, since dignity has been bestowed upon every person ontologically.32 The brief summary of the statements from the major Christian traditions in Europe and Central Asia underlines the importance of the concept of dignity for Christianity. According to Catholicism, and even more so for Orthodoxy, dignity means much more than just autonomy and freedom of choice. It also includes the obligation to align one’s life to the divine order. We can therefore assume that believers and religiously sensitive people are particularly supportive of the concept of dignity. Thus, they should agree strongly with the concept of 29 Ziebertz / Döhnert / Unser: Predictors of Attitudes Towards Human Dignity. 30 Catholic Church: The Dignity of the Human Person, in: Catechism of the Catholic Church, Part Three, Section One, Chapter One, Articles 1–8, http://www.vatican.va/ archive/ccc_css/archive/catechism/p3s1c1.htm, accessed 03.07.2019. 31 (Catechism 426). 32 Russian Orthodox Church: The Russian Orthodox Church’s Basic Teaching on Human Dignity, Freedom and Rights, 2008, in: The Russian Orthodox Church: Department for External Relations, https://mospat.ru/en/documents/dignity-freedom-rights, accessed 03.07.2019.

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inherent dignity, while also regarding moral behavior as a qualifying element of dignity. Interpersonal awareness and human dignity When we consider human dignity, we should also include the ability of interpersonal awareness—in addition to religion—for theoretical reasons. Here we differentiate between empathy and sensitivity. Research has confirmed a strong relationship between emotions and moral principles.33 Pro-social motivation is not per se a consequence of rational reflection; it is also aroused by emotions.34 Social psychology defines the concept of empathy as “the reactions of one individual to the observed experiences of another.”35 Thus, empathy is based on identification, i. e., the awareness that others have the same feelings and desires as oneself. According to this research, we assume that empathy is a significant predictor of acceptance of the notion that all human beings are endowed with the same degree of dignity.36 More specifically, we claim that high empathy skills positively influence the adoption of the inherent concept of dignity. While empathy includes similar emotions with the perceived other, sensitivity involves “attention for”, which does not necessarily presume that similar emotions have to be shared. Empathy is more strongly connected to commitment than sensitivity. Even though the two concepts are related they are different in many aspects. Research has shown that the development of moral thinking is connected with certain domains and specific (thematic)  experiences. We will also have to ask whether sensitivity for injustice in society predicts the valuation of human dignity and if so, how.37 Is the perception of tensions between social groups and society relevant for attitudes towards human dignity, e. g. tensions between privileged vs. underprivileged people, between religions or races? Sensitivity is not a trait that necessarily contains a high level of empathy. Empirically, it could be assumed that empathy is more relevant than sensitivity when it concerns attitudes towards 33 Keller, Monika / Malti, Tina: Sozialisation sozio-moralischer Kompetenzen, in: Hurrelmann, Klaus / Grundmann, Matthias / Walper, Sabine (eds.): Handbuch Sozialisationsforschung, Weinheim / Basel 2008, 411–412; Hunt, Lynn: Inventing Human Rights, New York 2008. 34 Hoffman, Martin L.: The Contribution of Empathy to Justice and Moral Judgment, in: Eisenberg, Nancy / Strayer, Janet (eds.): Empathy and Its Development, Cambridge 1990, 47–80; 48. 35 Davis, Mark H.: Measuring Individual Differences in Empathy: Evidence for a Multidimensional Approach, in: Journal of Personality and Social Psychology 44/1 (1983), 113–126, 113. 36 Hoffman, Contribution of Empathy, 71–72. 37 Doise, Willem / Spini, Dario / Clémence, Alain: Human Rights Studied as Social Representations in a Cross-National Context, in: European Journal of Social Psychology 29/1 (1999), 1–29, 5.

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group-related tensions in society, especially positive attitudes towards the noncontingent concept of human dignity. Social context As a final point, socio-demographic characteristics are included. In order to explore these questions, we must also acknowledge the context of students’ social class: A longitudinal survey with Icelandic students has verified that socio-moral thinking is affected by social class. Thus, adolescents from upper-class families have significant higher skills in socio-moral thinking. The researchers explain these skills by the class-specific socialization process: Upperclass families provide their children with advantageous socialization factors.38 It can therefore be assumed that social class matters, and especially upperclass respondents favor the inherent concept of dignity compared to lower-class students. Second, we must examine the position of parents and peers as agents in the religious socialization process. Parents are important for their children’s moral development; they provide basic orientations by structuring everyday family life, by approving or disapproving of specific behavior.39 During adolescence, the peer group becomes a significant socialization agent as well. Usually peers then acquire an even greater impact than parents and congregations.40 Lastly, in addition to social class and socialization we consider sex (gender) and age to be relevant for attitudes towards human dignity. Because data of the Religion & Human Rights program are based on a sample of a certain age group, this group is probably homogenous. That makes it difficult to formulate specific assumptions. As far as gender is concerned, we adhere to the classical opinion that females often demonstrate a higher moral sensitivity than males. Empirically, it is possible that females support the inherent concept of dignity more than males.

38 Dravenau, Daniel: Die Entwicklung milieuspezifischer Handlungsbefähigung, in: Grund­ mann, Matthias / u. a. (eds.): Handlungsbefähigung und Milieu, Berlin 2006, 191–235, 206–207; Keller, Monika / Malti, Tina / Dravenau, Daniel: Bindung, Sozialisation und die Entwicklung sozio-moralischen Denkens von der Kindheit bis zum Jugendalter, in: Hopf, C. / Nunner-Winkler, G. (eds.): Frühe Bindungen und moralische Entwicklung, Weinheim / Munich 2007, 125–150. 39 Lothar Krappmann: Die Sozialwelt der Kinder und ihre Moralentwicklung, in: Edelstein, W. / Oser, F. / Schuster, P. (eds.): Moralische Erziehung in der Schule: Entwicklungspsychologie und pädagogische Praxis, Weinheim 2001, 155–174, 156–157; Bittlingmayer, U. H.: Grundzüge einer mehrdimensionalen sozialstrukturellen Sozialisationsforschung, in: Grundmann, Matthias et al. (eds.): Handlungsbefähigung und Milieu, Berlin 2006, 37–55, 42. 40 T. F. Martin, T. F. / W hite, J. M. / Perlman, D.: Religious Socialization: A Test of the Channelling Hypothesis of Parental Influence on Adolescent Faith Maturity, in: Journal of Adolescent Research 18/2 (2003), 169–187, 179–182.

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Empirical analysis of predictors of attitudes towards inherent human dignity

We may now ask whether, and if so how, the different predictors mentioned above explain the concept of inherent dignity. A hierarchical regression model is used to answer this question. Data are computed by successive inclusion of the five different predictor concepts (see Table 8). Overall, every single model contributes to the explained variance and all five models are significant. The first model, interpersonal awareness, which includes empathy and sensitivity for tensions and injustice, explains 4.8 % of the variance. With the second model, belief in God and trust in religion, 1.4 % are added to the explained variance, which gives a final figure of 6.2 %. When the third model, social-class context (social formation class, migration background, and the type of school the student attends) is included, the variance remains stable. The fourth model, religious socialization (belief of parents and best friends, parents’ desire to pass on their faith and their expectations to attend religious services), contributes only 0.1 % to the explained variance. Finally, socio-demographic characteristics in terms of sex and age explain 1.5 % of the variance. In sum, these predictors explain 7.8 % of the variance. Table 8: Influence of interpersonal awareness, sensitivity, religious belief, social-class context, religious socialization, and socio-demographic characteristics on attitudes towards the concept of inherent human dignity (hierarchical regression model) Model 1

Model 2

Model 3

Model 4

Model 5

.212***

.192***

.193***

.188***

.160***

–– between rich and poor

.057*

.062*

.060*

.058*

.041

–– between citizens and non-citiz.

.024

.015

.017

.018

.017

–– between religions

-.052

-.061*

-.061*

-.062*

-.068*

–– between races

-.012

.002

-.000

.002

.015

-.011

-.005

-.036

-.038

Interpersonal awareness Empathy Sensitivity for tensions / injustice

Religious belief Belief of student Trust in religion

.111**

.112**

.087*

.093*

Religious affiliation Muslim Non-religious Others

.024

.033

.022

.029

-.049

-.044

-.028

-.017

.000

.004

.007

.010

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Human rights and the concept of dignity: an empirical perspective  Model 1

Model 2

Model 3

Model 4

Model 5

-.042

-.045

-.041

9 years of school

-.024

-.026

-.033

10 years of school

-.022

-.015

-.013

.006

.013

.022

Europe / World

-.035

-.033

-.034

World

-.008

-.009

-.008

-.009

-.011

-.006

Belief in God (father)

.022

.031

Belief in God (mother)

.000

.007

Passing on the belief (father)

.034

.026

Passing on the belief (mother)

.041

.037

Appreciated (father)

-.048

-.045

Insistence (father)

Social-class context Social formation class Type of school (student)

Comprehensive school Migration background (parents)

Migration background (student) World Religious socialization

Attending religious services -.056

-.051

Appreciated (mother)

.058

.061

Insistence (mother)

.046

.041

.036

.020

Peers Belief in God (best friend) Socio-demographic Age

-.026

Sex adj. R² F

.128*** .048 13.876***

.062 9.450***

.062 5.863***

.063 4.309***

.078 4.817***

N =2175; *p ≤. 05; **p ≤ .01; ***p ≤ .001 Reference: religious affiliation = Christians; type of school, student: ref. = higher secondary education, migration background, parents = no migration background; migration background, student = no migration background; wants student to attend religious services, father / mother = leave me totally free; sex = male.

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Let us now consider the betas of the overall analysis, represented in the right column of Table 8 (=model 5). The influence of the predictor variables on attitudes towards inherent dignity is displayed as follows: Empathy has the strongest significant influence on attitudes towards the concept of inherent dignity (beta = .160). The higher the degree of empathy, the more the student agrees with the concept of inherent human dignity. The influence of sensitivity on tensions and injustice is inconsistent—as in the first regression model. Only the item about conflicts between religions exercises a significant influence (beta = -.068). This item is the only one with a negative sign. We can conclude that the less the perception of conflict between religions is perceived, the more the concept of inherent dignity is accepted. However, the four sensitivity items together show no clear tendency, and thus we should not place too much emphasis on these items. Belief is relevant in one case. Trust in religion has a positive significant influence on a student’s acceptance of the notion of inherent dignity (beta  = .093). Students who trust their religion support the concept of inherent dignity more than those with little or no trust in religion. Students’ specific beliefs and religious affiliations are not significant in this model. Neither the context of social class nor religious socialization significantly influences respondents’ attitudes towards the concept of inherent dignity. A significant outcome (beta = .128) does exist for sex (gender). This beta means that females are more supportive of the concept of inherent dignity than males. Table 8 shows that the beta for empathy declines from .212 in model 1 to .160 in model 5. Therefore, we conclude that what empathy measures is especially also part of the religious domain (trust in religion) and sex (being female). 3.3 Question 3: Is the concept of dignity relevant for attitudes towards human rights?

Does human dignity show any impact on attitudes towards human rights, or, to be precise: to what degree does dignity explain attitudes towards human rights? Because this cannot be answered by checking all human rights in the questionnaire, we focus only on “political rights”. Political rights

Six specific political rights had been selected and respondents were provided with the following introduction: “The following statements are about political rights. These statements are concerned with what the government or the police should or should not do. Would you please indicate the extent of your agreement with these statements…”.

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Two items deal with the active and passive right to vote: “Everybody, living here for some period prescribed by law, should have the right to vote for political leaders,” and “Everybody, living here for some period prescribed by law, should have the right to run for public office.” The next two items focus on the right of protest: “The police should not use force against political demonstrations that put public order at risk,” and “The government should not forbid public protests, however controversial they might be.” And the last two items consider the right of refugees: “The government should guarantee political refugees freedom to travel,” and “The government should provide a decent standard of living for political refugees.” Respondents had to indicate to what extent they agreed or disagreed with each item on a five-point scale: disagree strongly (1), disagree (2), not certain (3), agree (4) and agree strongly (5). Although these items represent different contents, together they constitute the scale “political rights” with a Cronbach’s alpha of .66. Research questions

The intention and focus of this essay has been to ask: how can the attitudes towards political rights be explained? How important is the kind of understanding of human dignity in this matter, and how distinct is its influence? Are there any other concepts that have a greater explanatory power than dignity? How important is faith in God for the attitude towards political human rights? The explorative character of this analysis does not allow any prognosis whether predictors are strong or weak, whether they are equal or different, and whether they represent any hierarchy of influence. Empirical findings (regression analysis)

A regression analysis was run (see Table 9) to answer these questions. The general outcome is that every single model contributes to the explained variance and that all five models are significant. The first model in this analysis is based on the three understandings of human dignity, which explain 5.3 % of the variance. All understandings of dignity count; however, inherent dignity counts the most (beta=.207). In the second model, values are integrated into the regression analysis and the explained variance increases to 9.8 %. Empathy has the strongest explanatory power (beta=.167), followed by self-direction and security-values. A consequence

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of the introduction of values is that inherent dignity regarding the explanation of political rights is no longer as important as in the first model. The beta of inherent dignity declines to .162 and dignity connected with moral behavior is no longer significant. As far as the betas are concerned, empathy counts slightly higher as a predictor than inherent dignity. The third model includes religious convictions. Belief in a personal God shows a negative beta of -.124, indicating that the less God is seen as a “personal other” the more political rights are supported. The concept that religions should function as a social force in society predicts a slightly positive attitude towards political rights. The non-personal image of God is not a significant concept. It is therefore not surprising that, with the inclusion of religious concepts, the explained variance barely increased. The betas of the concepts of dignity and values remain largely unchanged. Model four contains the socio-political perception of society. Three of the four concepts are significant predictors of attitudes towards political rights. A strong positive predictor is multiculturalism (beta=.283). Respondents who appreciate cultural diversity and evaluate a multicultural society as enriching also support political human rights. Multiculturalism and a liberal attitude concerning the right to vote, the rights of refugees, and the right to demonstrate are interconnected. In causal terms, the advocacy for multiculturalism predicts the acceptance of political human rights. Two concepts show a negative beta. Those convinced that the government should care much more about the enforcement of the law do not support political human rights. Respondents who fear that order in society is threatened show less liberality regarding those people who might be invited to vote, regarding refugees and all sorts of demonstrations (beta=.103). A less important predictor is the students’ political orientation. The beta of -.80 states that the less students are politically right-wing, the more they support political rights. In other words, leftist students advocate political rights. The inclusion of this model into the regression analysis leads to a doubling of the explained variance (from r=.100 up to r=.213). The step of the analysis shows that—among all predictors—multiculturalism is at the first place and the concept of inherent dignity is in the second. Model five includes age and sex, which does little to improve the explained variance. In fact, the involvement of model five leads to less significance as far as the whole model is concerned. Only age counts (weakly) as a predictor: the younger the respondent, the more inclined he or she is to support political rights.

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Table 9: Influence of human dignity, values, religious belief, socio-political perception, and socio-demographic characteristics on attitudes towards political rights (hierarchical regression) Model 1

Model 2

Model 3

Model 4

Model 5

Human dignity -.099***

-.070**

-.068**

-.002

-.002

Behavior

Merit

.072**

.039

.038

.032

.030

Inherent

.207***

.162***

.164***

.141***

.143***

.167***

.164***

.099***

.109***

Self-Direction

.076**

.074**

.045*

.046*

Benevolence

.033

.038

.013

.017

Security

-.063**

-.063**

-.015

-.015

Achievement

-.015

-.016

.002

.000

Values Empathy

Religious belief Belief in personal God

-.124**

-.076*

-.073

Belief in non-personal God

.065

.041

.039

Religion as social force

.058*

.049*

.049*

Socio-politic. perception -.103***

-.101***

Multiculturalism

Law & order

.283***

.283***

Conflicts in Society

.017

.018

Political Orientation

-.080***

-.078***

Socio-demographic Age

-.045*

Sex

.041

R² N =2135; *p ≤. 05; **p ≤ .01; ***p ≤ .001

5.3 %

9.8 % (+4.5)

10.4 % (+.06)

21.3 % (+10.9)

21.6 % (+.03)

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Conclusions

The main intent of this essay was to find out whether the assumption that human dignity is a strong predictor for human rights including political human rights is correct. The findings confirm this regarding the concept of inherent human dignity. However, dignity is not the only predictor. The beta of inherent dignity is .141, which is only the second strongest value. The strongest predictor is the concept of multiculturalism (beta=.283); empathy follows as the third significant predictor (beta=.109). We conclude: students who appreciate cultural diversity and experience the plurality of lifestyles and cultures as enriching to modern society are most likely to defend political rights, i. e. the right to vote, to demonstrate, to ensure freedom, and to ensure that refugees have a decent standard of living. Moreover, we can affirm that human dignity is an inherent value of the human being and, less pronounced, the ability to feel empathy for others. The fourth and fifth strongest betas have a negative sign. A “law and order” orientation and a preference for political right-wing thinking predict a critical evaluation of political human rights. We can state that human dignity is certainly an important concept and that, as far as political human rights are concerned, respondents’ political perceptions and convictions are relevant. In terms of the religious concepts used in this study, only religion as a social force survives all regression steps, but with lower importance. The theological interpretation of dignity, namely that humans are created in the image of God, does not appear to have any significant meaning.

4. Discussion Because of the cultural context in which human beings interpret terms and concepts such as “human rights” or “dignity,” common perceptions and evaluations of human rights can be quite different from academic, political, and legal discourses. The empirical findings presented here illustrate that claim and raise a number of questions. The question concerning how the understanding of human dignity looks among young persons must be answered by the evidence showing that the respondents do not share a common understanding of human dignity that educational, religious, or political leaders consider to be desirable according to the values of a liberal democracy. If the concept of dignity, or more precisely, the concept of an inherent dignity of man, is understood as the core value founding the modern understanding of human rights, the empirical data display a gap between the ideal and reality. This is a challenge for education, but it also ought to provoke a public debate on what constitutes modern societies, and what holds them together. The data also show the need to deepen our understanding of inherent dignity and to outline the consequences connected with this understanding, compared to dignity of merit and moral stature.

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In exploring which factors influence the understanding of inherent dignity, we tested some 28 concepts. Of these, only two showed a high significant influence. One is the ability to be empathic. In her historical reflection on the development of human rights, Lynn Hunt demonstrated that empathy has been a significant and important concept.41 The second significant indicator is ‘being female’. Females support the concept of inherent dignity more strongly than males—and this difference is not accidental. A detailed academic discussion exists regarding the question of whether women have a greater ability to care about others than men. The results of this study appear to confirm existing research and conclusions. The third question concerned the importance of human dignity as a predictor for attitudes towards human rights. Considering those political human rights that were selected for this essay, we can conclude that the concept of inherent human dignity, together with an advocacy of a multicultural society, affects the support for political human rights the most. This finding, however, does not confirm the view of those critics who claim that human dignity is not appropriate as a justification for human rights. Since human dignity is compatible with theological anthropology, a somewhat surprising outcome of this research also revealed that religious adherence, unlike human dignity, does not influence the valuation of political rights. Further research may be able to examine measurements concerning the impact of religious factors more thoroughly. In order to obtain a comprehensive picture about the significance of the concept of human dignity, more rights have to be tested. Another outstanding issue concerns the relation of human dignity with religious convictions and practices, as well as the impact of both on attitudes towards human rights. If a culture of human rights is essential for the survival of liberal democracies, human rights have to be fully legitimized by the people; otherwise the very idea of democracy deteriorates. Thus, the empirical domain of human rights must not be neglected. “Empirical” in this context means to discover how human rights are assessed, and whether the people intend to support and defend them. Empirical research does not claim to offer a comprehensive and exhaustive explanation of a specific problem; nonetheless, empirical findings can stimulate reflection. The value of empirical knowledge consists of the fact that it provides a direct comparison between theory and practice. It shows whether and how people adopt particular concepts, it introduces normative reflection on the anticipated developments, and it can stimulate an advanced reflection about how greater support for human rights can be achieved.

41 Hunt: Inventing Human Rights.

Roger Finke and Dane R. Mataic

Recent Findings on Religious Freedoms: A Global Assessment and American Update

Religious freedom is a widely recognized human right in international laws and covenants. Most notably, Article 18 of the United Nations’ Universal Declaration of Human Rights states that “[e]veryone has the right to freedom of thought, conscience, and religion” and identifies freedoms “to change his religion or belief, and freedom either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance.”1 Following the 1948 Universal Declaration, additional international laws and covenants reaffirmed religious freedoms.2 Moreover, most national constitutions include promises of religious freedom, with at least 90 percent offering some religious freedom protections and more than 70 percent “include[ing] language used in Article 18.”3 Despite these promises, however, religious freedom remains a hotly contested issue across the globe. Debates rage on how to define religious freedom, on the limits of these freedoms and on the duty of governments to protect them. Many of the debates center on if greater freedoms instigate potential religious and ethnic conflicts, or if they defuse such conflicts. Can and should religious freedoms be denied to ensure national security, to protect other human rights, or to promote national and cultural unity? Relying on recent data collections this essay documents the level of religious freedom across the globe, reviews the methods used to deny religious freedoms and explores the relationships these freedoms hold with social conflict. After offering a global overview, we narrow our focus and assess if the global trends are found in the United States. Before we begin the overview, however, we highlight how religious freedoms are both similar and different from other human rights. 1 United Nations General Assembly Resolution 217A, Universal Declaration of Human Rights, 10. December 1948. 2 These include the 1976 International Covenant on Civil and Political Rights (ICCPR), ratified by 160 nations, and the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, which was passed by the UN’s General Assembly. In addition, Article 2 of the Universal Declaration also promises that human rights cannot be denied due to a person’s religion. 3 For the precise wording and results from the Pew Center’s Global Restrictions collection, go to question 6 on theARDA .com: http://www.thearda.com/Archive/Files/Codebooks/ GRELREST_CB.asp. The ARDA collection asked a similar question (13): http:/www. thearda.com/Archive/Files/Codebooks/IRF2005_CB.asp.

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1. Religious Freedoms and Other Human Rights When stripped to the core, religious freedoms can be viewed as an extension or even a duplication of other human rights.4 For example, when we look at the U. N.’s Universal Declaration of Human Rights, we find that Article 18 on religious freedom has a clear overlap with the two articles that follow. The freedom to hold, to teach, and to change religious beliefs in public or private might be viewed as a more specific case of the freedom of opinion and expression found in Article 19. Likewise, Article 20’s freedom of peaceful assembly and association parallels the freedom to worship and observe religion publicly.5 For this reason, we expect religious freedoms to rely on many of the same social and political supports as other human rights. Recent research confirms these expectations. States supporting an independent judiciary, one that is largely independent from other political, social and religious institutions, are far more likely to support religious freedoms.6 Like other human rights, religious freedoms are often denied without support from the state, especially the freedoms of minority religions.7 Yet, the many similarities can also mask some very important institutional and cultural differences. Perhaps more than any other human right, religious freedoms are intertwined with complex cultural histories and institutional ties. Religion can permeate much of the nation’s culture and can hold institutional alliances with the state. Whereas all human rights seek political support and state protections, religion holds relationships that pose unique challenges for protecting religious freedoms and increased risks if the freedoms are not protected. Understanding the distinctive relationships religion holds with the larger culture and the state is essential for understanding the challenges to religious freedoms. One distinctive relationship is the formal ties between some religious institutions and the state. The most common practice is that the dominant religion seeks an alliance with the state that provides increased support for their religion 4 Religion is also listed as a “status” category in most covenants and formal statements on human rights. For example, Article 2 of the UN Universal Declaration reads as follows: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.” 5 The Universal Declaration of Human Rights can be downloaded in full at: http://www. un.org/en/documents/udhr/index.shtml. 6 Finke, Roger / Martin, Robert R.: Ensuring Liberties: Understanding State Restrictions on Religious Freedoms, in: Journal for the Scientific Study of Religion 53/4 (2014), 687–705. 7 Finke, Roger / Martin, Robert R. / Fox, Jonathan: Explaining Religious Discrimination against Religious Minorities, in: Politics & Religion 10/2 (2017), 389–416. 

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and increased restrictions on their religious competitors. Muslim-majority countries supporting a strict version of Sharia law provide the most obvious examples today, but all world religions form alliances with the state. The level of support received, and the restrictions placed on religious minorities covers a diverse array of options, influencing a religion’s access to resources, and inevitably increasing their competitive advantage. Even governments holding a strong secular ideology, can still seek ties with religious institutions in an effort to control religion. Whereas, Mao’s Cultural Revolution (1966–1979) attempted to eliminate all religious institutions in China, the current Chinese government formally sanctions and approves a few select religions while targeting others as dangerous to the state and culture.8 The institutional relationships between religion and state, whether they are formal allies or open opponents, can compromise the religious freedoms provided. A second relationship, strong historical and cultural ties to select religions, can also threaten freedoms by giving advantage to one religion and reducing freedoms for others. These cultural pressures have been evident following the breakup of the Soviet Union. Although state restrictions were initially relaxed on all religions in Russia, the Russian Orthodox Church soon appealed for greater controls on the minority religions. The Archbishop’s Council (Sobor) stated their case forcefully and clearly in 1994: “[the new sects] destroy the spiritual and moral ideal that is common to all of us; and they threaten the integrity of our national consciousness and our cultural identity.”9 Similar concerns for restoring past religious cultures and identities were evident outside Russia. Despite holding extremely low levels of religious practice, the three Caucasus nations of Armenia, Azerbaijan and Georgia have each tried to revitalize a religious identity and have become far more religiously homogeneous since the breakup of the Soviet Union.10 This concern for preserving cultural identity can be strong even when the state and larger culture are highly secularized. When France’s Gest Commission identified 173 dangerous sects and cults in 1995, including many 8 Yang, Fenggang: The Red, Black, and Gray Markets of Religion in China, in: The Sociological Quarterly 47 (2006), 93–122; Richardson, James T. / Edelman, Bryan: Cult controversies and Legal Developments Concerning New Religious Movements in Japan and China, in: Richardson, James T. (eds.): Regulating Religion: Case Studies from around the Globe, New York 2004, 359–380. Grim, Brian J. / Finke, Roger: International Religion Indexes: Government Regulation, Government Favoritism, and Social Regulation of Religion, in: Interdisciplinary Journal of Research on Religion 2 (2006), 1–40. 9 Shterin, Marat S. / R ichardson, James T.: Effects of Western Anti-Cult Movement On Development of Laws Concerning Religion in Post-Communist Russia, in: Journal of Church and State 42 (2000), 247–271, 263. 10 Azerbaijan has the highest religious homogeneity of the three with 99 % of the population identifying with Islam, Armenia follows with 96 % practicing within the Armenian Apostolic Church. Within Georgia, 85.6 % of the country identifies with the Georgian, Russian, or Greek Orthodox Church. See Gurrentz, Benjamin T. / Finke, Roger: When Contact Counts: Intergroup Contact on Business and Intermarriage Resistance in the Caucasus Region, in: Social Science Research 63 (2017), 308–323.

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evangelical, Adventist, and Pentecostal groups, a popular journalist described the religious groups as an American “Trojan Horse” invading France.11 Many national and cultural identities are so closely interwoven with or against selected religions that ensuring religious freedoms for all, is perceived as challenging the cultural identity as a whole. Perhaps the most significant difference between religious freedoms and other human rights, however, is that religious institutions and beliefs can quickly mobilize high levels of individual commitment and group action. Although other groups seeking human rights can secure support and commitment, religion has proven particularly effective at securing a commitment that surpasses nationality or loyalty to the state. Billings and Scott assert that religion is capable of legitimating authority, or encouraging practitioners to defy secular authority structures.12 One’s religious identity is also frequently tied to the formation of solidarity and larger collective identities.13 The Pew Research Center’s 2006 Global Attitudes Survey illustrates this vividly. For nine out of the ten countries surveyed, Muslims “think of themselves first as a Muslim rather than as a citizen of their country.”14 The two highest percentages were found in Great Britain (81 %) and Pakistan (87 %). For Christian respondents, the United States and Nigeria held the highest percentage thinking of themselves first as a Christian rather than as a citizen of their country, 42 and 53 percent respectively. When this devotion and commitment are combined with extensive organizational support, religious institutions have threatened both the state and other religions. Whether it is religious social movements, political parties or the more formal institutions and local congregations, religious groups have proven capable of organizing membership around a common cause. Sometimes religious groups threaten the state because their target is the state, such as the Taliban in Afghanistan. Other times groups have few political aspirations, but their unity threatens the state. When more than 10,000 Falun Gong adherents surrounded a Beijing leadership compound in a silent protest in 1999, they sought only to be recognized as a legitimate spiritual movement. Within a few months, however, an estimated “35,000 practitioners had been detained, 300 jailed, 5,000 sent to labor

11 Witham, Larry: France Determines Jehovah’s Witnesses Are Not A Religion, in: The Washington Times, 6–12. July 2001. To review the full report see Gest, Alain / Guyard, Jacques: Report Made in the Name of the Board of Inquiry into Sects, 22. December 1995, http://www.assemblee-nationale.fr/rap-enq/r2468.asp, accessed 24.08.2018. 12 Billings, Dwight B. / Scott, Shaunna L.: Religion and Political Legitimation, in: Annual Review of Sociology 20 (1994), 173–202. 13 Peek, Lori: Becoming Muslim: The Development of a Religious Identity, in: Sociology of Religion 66/3 (2005), 215–242. 14 Pew Research Center, Muslim Americans: Middle Class and Mostly Mainstream, 26. June 2007, in: Pew Research Center, http://pewforum.org/surveys/muslim-american/, accessed 24.08.2018.

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camps, and 50 committed to mental hospitals.”15 Whether the perceived threat is at the individual, community or national level, the result is new motives for denying religious freedoms. Each of these distinctive qualities about religion—an established institutional base, strong cultural and historical ties, and the ability to generate devotion and mobilize activity—raises both the stakes and the challenges for ensuring religious freedoms. These qualities also increase the chance of religious freedoms being in tension with other human rights. 1.1 A Global Overview of Religious Freedom

Minority religions such as the Jehovah’s Witnesses, Sikhs and Baha’i, as well as religion advocacy groups, have long complained about religious freedoms being denied. However, pleas for action have not been confined to religious groups. Reports by the UN ’s Special Rapporteur on freedom of religion are filled with examples of violations against promised freedoms and calls for correctives. At the close of her 2006 report, Asma Jahangir wrote that the implementation of the 1981 Declaration “is far from being a reality” and “there still is a huge gap between rhetoric and practice in many instances.”16 She went on to express concern over the number of “urgent appeals” and “allegation letters” on the denial of religious freedoms that receive no response. In her 2006 report (Jahangir 2007) she complained that the number of countries that refuse to offer her an invitation to visit had been increasing.17 In 2009 she concluded that “discrimination based on religion or belief preventing individuals from fully enjoying all their human rights still occurs worldwide on a daily basis.”18 Prior to 2000 there was remarkably little data available for understanding how common this religious discrimination is, where it occurs, and who the victims are. Following 2000, however, the Religion and State Project at Bar Ilan University, the Pew Forum on Religion and Public Life and the Association of Religion Data Archives (www.theARDA .com) at Penn State University each assembled 15 Richardson / Edelman, Cult Controversies, 368. 16 Jahangir, Asma: Implementation of General Assembly Resolution 60/251 of 15 March 2006 Entitled: “Human Rights Council” United Nations’ Human Rights Council, Fourth Session, Item 2, 2007, 16. 17 Asma Jahangir, Asma: Report of the Special Rapporteur on Freedom of Religion or Belief, in: United Nations Commission on Human Rights,9. January 2006. She also noted that Egypt, Eritrea, Kyrgyzstan, Turkmenistan and Uzbekistan failed to offer a requested invitation in 2006. The 2007 report included Cuba, Ethiopia, India, Lao People’s Democratic Republic, Malaysia, Mauritania, Pakistan, Saudi Arabia, Serbia and Montenegro, and Yemen as not responding to her requests for an invitation. 18 Jahangir, Asma: Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, in: United Nations’ Human Rights Council, Tenth Session, Item 3, 2009, 20. 

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major international collections, including a wide range of measures on religion and the state for virtually all nations.19 Although the collections vary in the research methodologies and information sources used, their religious freedom measures are highly correlated and have produced very similar results.20 1.2 Routinely Promised, Routinely Denied

The one overriding finding of these collections is hardly surprising: the promises of religious freedoms so routinely promised, are routinely denied. The ARDA’s collection found that more than 80 percent of the nations promising religious freedoms in their constitution had at least one law restricting religious freedoms and 38 percent had four or more such laws.21 The Pew collection found that 80 percent of all nations had constitutional clauses or basic laws that “qualify or substantially contradict the concept of ‘religious freedom.’”22 The ARDA , Pew and RAS collections all constructed multiple item indexes to measure the level and extent of the restrictions placed on religious freedoms. For the sake of clarity and brevity, we review only a few results using a single religious freedom: religious worship and practice. We select religious worship because it represents one of the most basic religious freedoms and because the denial of this freedom is one of the easiest to measure. The 2008 Pew collection offers a single measure asking “[d]oes any level of government interfere with worship or other religious practices?”23 Forty-two percent report no government interference; with the remaining 58 percent reporting at least a few cases (see Table 1). The table also shows that the “[g]overnment prohibits worship or religious practices of one or more religious groups as a general policy” in nearly 1 in 5 nations (19 %). Because the Pew research team relied on the known or reported cases of interference, and were focused on a narrow span of time, these figures are probably underreporting the level of interference.

19 Fox, Jonathan: A World Survey of Religion and the State, New York 2008; Fox, Jonathan: Political Secularism, Religion and the State: A Time Series Analysis of Worldwide Data, New York 2015; Pew Research Center: Religious Hostilities Reach Six-Year High, in: Pew Research Center, 2014; Grim / Finke: International Religion Indexes; Grim, Brian J. / Finke, Roger: The Price of Freedom Denied: Religious Persecution and Violence, Cambridge 2011. All three collections are publicly available for review and download on theARDA . com. 20 Finke / Martin: Ensuring Liberties. 21 Grim / Finke: Price of Freedom Denied. 22 Go to question 7 of the Pew collection on theARDA .com: http://www.thearda.com/ Archive/Files/Codebooks/GRELREST_CB.asp. 23 Go to question 9 of the Pew Collection on theARDA .com: http://www.thearda.com/ Archive/Files/Codebooks/GRELREST_CB.asp.

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Table 1 also offers a regional profile. As expected, some regions of the globe place far more restrictions on religious practice than others. The level of interference was severe for 35 % or more of the nations in two of the global regions: the Middle East and North Africa, and South and Central Asia. For the Middle East and North Africa region, at least some interference was reported in all of the nations. No region is exempt from restricting religious worship. Even in the Western democracies, at least some interference was found in more than one half of the nations and the interference was severe in eight percent. Table 1: Restrictions on Worship & Practice by Global Regions Does any level of government interfere with worship or other religious practices?

West. Dem. (N=26)

Former Asia USSR (N=28) (N=28)

Mid East & N. Afr. (N=20)

Sub-Sah. Latin Africa Am. (N=46) (N=27)

Total (N=175)

No Interference

46 %

29 %

29 %

0 %

59 %

67 %

42 %

Yes, in a few cases

35 %

21 %

11 %

15 %

13 %

22 %

19 %

Yes, in many cases

12 %

29 %

25 %

35 %

15 %

11 %

20 %

8 %

21 %

36 %

50 %

13 %

0 %

19 %

Government prohibits worship or religious practices of one or more religious groups as a general policy

Source: Pew Research Center (2008)

Given the regional patterns reviewed above, the relationship between a nation’s dominant religion and the restrictions placed on religious worship are somewhat expected. Nations with a Muslim-majority or an Orthodox Christian majority are far more likely to interfere with religious worship or practice. For 2008, the Pew collection finds that any level of government interfered with worship in at least a few cases in over 80 percent of countries with a Muslim-majority population. Similarly, governments interfered in at least a few instances in over 75 percent of Orthodox Christian majority countries. The third highest levels of restrictions are found in countries with a majority religion categorized as other, with about 70 percent of the countries experiencing a few cases of interference in religious practice. Despite the high occurrences of interference in these countries, Catholic and Other Christian majority countries were not immune. About 40 percent of Catholic and Other Christian majority countries experienced at least some interference by their government.24 Including religious restrictions 24 See Fox: World Survey of Religion, for more details on variations by region and world religions.

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beyond our single measure of interference in religious worship or practice further demonstrates the expansive use of restrictions, where the number of nations that effectively protect religious freedoms declines rapidly, though the regional pattern remains unchanged. Beyond region and dominant religion, several other measures have proven to be robust predictors of religious freedom. When testing measures of governance, past research has found that an independent judiciary, rather than free elections and government effectiveness, was the strongest predictor of increased freedoms. For religious minorities, in particular, an independent judiciary rather than the majority rule afforded by free elections is a far more important protectorate of religious freedoms. Additional strong and highly significant predictors of reduced religious freedoms were government support for a single religion and the presence of social and cultural pressures to restrict minority religions. When governments favored select religions, the number of restrictions found within a country increased significantly. Further, when the larger culture called for increased restrictions on minority religions, religious freedoms decreased.25 Even this cursory overview documents a few important findings about religious freedoms: they are frequently denied, the patterns of denial vary by region but no region is exempt, and the relationship a religion holds with the state and larger culture is a strong predictor of the freedoms denied. Finally, governance, especially an independent judiciary and the availability of free and open elections, matters. But documenting that it occurs and knowing the relationships it holds with other national traits doesn’t explain how it occurs. Recent qualitative and quantitative research on religious registration highlight the subtle occurrence of restrictions on religion. 1.3 Registration: The Silent Enforcer

The methods used for denying religious freedoms are diverse and many. Some are formal government actions enforcing laws and policies that explicitly deny freedoms. Others are cultural and social pressures that openly restrict religious freedoms even when the state formally supports such freedoms. Yet, many of the methods used to deny religious freedoms are less obvious than the explicit laws denying freedoms or the bold actions of social and religious movements targeting minority religions. Even the subtle methods, however, can be powerful. Religious registration requirements offer one example of how seemingly benign government requirements restrict the activities of religions. Although registration is sometimes little more than a formality that is similar to the registration of many secular groups, there is strong evidence that governments are not only increasingly using religious registration; they are increasingly using 25 Fox: World Survey of Religion; Grim / Finke: Price of Freedom Denied; Finke / Martin, Ensuring Liberties.

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it to deny religious freedoms. As documented in Table 2, the RAS collection found that the countries requiring religious registration increased from 72 % in 1990 to 81 % in 2008 and Pew reported that it was 90 % by 2012. The collections also find that governments are using registration requirements as a discriminatory tool against minority religions. In 2007 the Pew Center reported that the registration “process clearly discriminates against some religions” in 32 % of the countries. By 2012 the percentage jumped to 45 % with another 13 % of the countries having a registration process that “adversely affects some religions.” In other words, the 2012 Pew Center collection found that 58 percent of all nations were using a registration process that adversely affected or openly discriminated against some religions. Table 2: Governmental Registration Requirements for Religious Groups RELIGION AND STATE Source: Religion and State Project (2011)

1990

2008

N=116

N=155

No registration requirement

28 %

19 %

Registration is not required, but is allowed or encouraged and may include benefits

32 %

34 %

Officially required to register. Unregistered are not restricted, but may be denied status as a legal entity

26 %

28 %

Government enforces registration requirements and discriminates against unregistered groups

15 %

19 %

a minimum number of community members

16 %

32 %

minority religions (as opposed to all religions) to register in order to be legal or receive special tax status.

37 %

47 %

55 %

63 %

Impact of registration

The registration process requires…

The registration process for religions is… in some manner different from the registration process for other non-profit organizations PEW RESEARCH CENTER Source: Pew Research Center, 2008

2007

2012

N=155

N=155

No

15 %

10 %

Yes, but in a nondiscriminatory way

34 %

32 %

Yes, and adversely affects some religions

19 %

13 %

Yes, and the process clearly discriminates against some religions

32 %

45 %

Ask groups to register for any reason, including tax benefits

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A growing body of research using case studies and qualitative research builds on the RAS and Pew collections by documenting how registration requirements can deny religious freedoms.26 The first and most obvious is that governments grant approvals to select groups and they deny or restrict the legal entity status of all others. For religious groups, much like most organizations, receiving this legal recognition is a practical necessity. Along with allowing for public worship and a long list of public practices, this legal status is typically required for the owning or renting of property, the employment of staffs, entering contracts, opening a bank account, and the operation of educational and humanitarian institutions. Yet, gaining this legal status is often difficult or impossible for many groups. After the complex Russian law “On Freedom of Conscience and Associations” was passed in 1997, numerous barriers to registration were erected, including a requirement that the group must exist in a community for 15 years before it qualifies for registration. Even when groups did qualify, they had to go through a cumbersome, time-consuming registration process and the groups defined as nontraditional qualified for fewer legal privileges and faced increased monitoring.27 Although Austria has far fewer restrictions on religion than Russia, groups cannot register unless they have existed for 20 years and they represent 0.2 % or more of the population (approximately 16,000 members). In China, a registered religion must receive approvals from multiple state agencies and most do not qualify, resulting in the majority of religious participants attending underground religious groups.28 For each of these cases, and many others, registration requirements denied religious groups the legal status needed to openly practice their religion without restrictions or even arrest. These three examples are not alone in placing high demands on registration. Through the RAS collection, we found increases in key requirements for registration, such as a minimum number of community members and separate requirements for minority religions as opposed to all religions, between 1990 and 2008 (see Table 2). The numbers of nations requiring a “minimum number of members” for registration increased from 16 % in 1990 to 32 % in 2008. The 26 Grim / Finke: Price of Freedom Denied; Koesel, Karrie J.: Region and Authoritarianism: Cooperation, Conflict, and the Consequences, New York 2014; Fox: Political Secularism; Sarkissian, Ani: The Varieties of Religious Repression: Why Governments Restrict Religion, New York 2015. Finke, Roger / Mataic, Dane R. / Fox, Jonathan: Assessing the Impact of Religious Registration, in: Journal for the Scientific Study of Religion 56/4 (May 2018), 720–736. 27 Wanner, Catherine: Missionaries of Faith and Culture: Evangelical Encounters in Ukraine, in: Slavic Review 63/4 (2004), 732–755; Froese, Paul: The Great Secularization Experiment: What Soviet Communism Taught Us About Religion in the Modern Era, Berkeley 2008; Koesel: Region and Authoritarianism. 28 For example, the Catholic Patriotic Association has secured approval from the government because they do not have close ties to the Vatican, but the majority of Catholics in China still attend an underground Catholic church not associated with the Catholic Patriotic Association. See Yang, Fenggang: Religion in China: Survival and Revival Under Communist Rule, New York 2012, 100.

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requirement that minority religions must register in order to be legal or receive special tax status also increased, from 37 to 47 percent. Virtually all of the registration requirements included in the RAS collection, such as submitting religious doctrines, requiring registration at multiple levels and enforcing a waiting period, increased as well. The difficulty for religious organizations to register also increased during the same period. In 1990, 55 percent of the nations had a registration process for religious groups that was “different from the registration process for other non-profit organizations,” which saw an increase to 63 percent of nations by 2008 (Table 2). Further increases occurred among the inclusion of a tiered registration system and the frequency of registration denial. The criteria used for groups obtaining legal status are often complex, vague and ill-defined, granting the bureaus and agencies registering religions broad discretionary powers. This allows state agencies to effectively block select religious groups or greatly inhibit their ability to survive. Moreover, because local authorities often grant registration approvals, the social and cultural pressures of local communities can influence the actions of the authorities. As noted earlier, social and cultural pressures typically target religious minorities. Some legal scholars have concluded that local administrative action, rather than national legislation, often is the greater deterrent to religions meeting registration requirements.29 France and Azerbaijan are just two of many examples on how vague definitions and social pressures on local buraucracies results in multiple barriers to registration. Following the 1994 mass suicide by the small religious group Order of the Solar Temple, strong anti-cult movements arose within France resulting in the 1995 Gest Commission’s Report. This report identified 173 dangerous sects, including the Jehovah’s Witnesses, Soka Gakkai, Scientologists and multiple evangelical, Adventist, and Pentecostal groups; but it failed to offer a definition or any clear criteria on how the sects could be identified.30 Use of the list was later dropped, but the absence of criteria for identifying dangerous religious groups and activities left local officials with even more discretion.31 The 2001 International Religious Freedom Report on France stated bluntly, “[l]ocal authorities often determine the treatment of religious minorities.”32 Despite simplifying 29 Podoprigora, Roman: Freedom of Religion and Belief and Discretionary State Approval of Religious Activity, in: Durham, W.  Cole Jr. / Tahzib-Lie, Bahia G. (eds.): Facilitating Freedom of Religion or Belief: A Deskbook, Leiden 2004, 425–440. 30 Gest / Guyard: Inquiry Into Sects. 31 The 2001 About-Picard law would place increased restrictions on “cult-like movements” and eased the process for dissolving such groups. Duvert, Cyrille: Anti-Cultism in the French Parliament, in: Richardson, J. T. (ed.): Regulating Religion: Case Studies From Around the Globe, New York 2004, 41–52; Jahangir: Implementation of General Assembly Resolution 60/251. 32 Similar concerns were expressed by the U. N.’s, Asma Jahangir in her 2007 report. She called for the state to be more vigilant in monitoring state sponsored agencies and activities that threatened to violate religious freedoms; Jahangir: Implementation of General Assembly Resolution 60/251.

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registration requirements in 2010, the laws and rulings related to registration continue to change frequently and definitions remain vague on what constitutes a dangerous sect or cult. Azerbaijan offers a second example of how vague and ever-changing registration requirements enforced by local authorities can restrict religious freedoms. Despite constitutional promises that “[a]ll religions are equal before the law” and President Ilham Aliyev’s 2012 bold statement that “[f]reedom of religion, freedom of conscience have been fully established in Azerbaijan,” the registration process has proven challenging for all and highly restrictive for groups defined as non-traditional.33 Because the requirements for registration are complex, vague and sometimes contradictory, with the Law on Religious Freedom being amended 14 times between 1992 and 2014, there are few clear standards for how registration can be ensured. When the European Court of Human Rights ruled on the case of Islam-Ittihad Association v. Azerbaijan on Nov. 13, 2014 it noted that the “lack of any definition of the term ‘religious activity’ made it impossible for the applicants to foresee what constituted ‘religious activity’.” The ruling further noted, “domestic authorities were thus given an unlimited discretionary power in that sphere.”34 Once again, these vaguely defined requirements, enforced by local authorities, result in the reduction of religious freedoms of minorities (or all religions). Whereas, the examples and most of the measures used in the data collections are focused on the laws, policies, and practices that deny privileges, the case studies also demonstrate that the withholding of rewards or the threat of withholding rewards have proven detrimental for many religions. Whether they are financial incentives or the cultural legitimacy of being an approved religion, a lack of approval can deter the growth and survival of a group by denying it rewards given to other groups. Even when religions are approved, the groups face the threat of approval being withdrawn if government demands are not met. For all of the examples given, the unregistered groups frequently face increased costs, reduced benefits, and reduced religious freedoms. Although the examples just offered focus on registration, the methods described for denying freedoms go far beyond registration. The selective use of state restrictions and support, the influence of local cultural and social pressures, the broad discretionary powers of local agencies, and the use of vague and everchanging definitions and standards can all contribute to the denial of religious freedoms through multiple avenues. 33 President Ilham Aliyev’s quote is taken from Corley, Felix / K inahan, John: Azerbaijan: Religious Freedom Survey, in: Forum 18 News Service, 17. April 2012, http://www. forum18.org/archive.php?article_id=1690, accessed 24.08.2018. For a review of the Azerbaijan constitutional articles on religion, go to theARDA .com: http://www.thearda.com/ internationalData/countries/Country_16_6.asp. 34 Islam-Itihad Association v. Azerbaijan, (ECHR , 13 Nov 2014). http://hudoc.echr.coe.int/ sites/eng/pages/search.aspx?i=001-147866 - {"itemid":["001-147866"]}

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1.4 Religious Freedoms and Social Conflicts

When states enact laws and policies that deny religious freedoms and impose registration requirements that threaten the survival of many religions, they often justify these actions as a necessity. Samuel P.  Huntington’s “Clash of Civilizations” argument outlines the concerns of many.35 In 1993 he explained that world politics was entering a new phase where the “great divisions … and the dominating source of conflict” are now cultural rather than economic or political, with religion being at the core of cultural conflict. Though Huntington devoted the bulk of his arguments and examples to conflicts between countries, he explains that the “clash of civilizations … occurs at two levels.” One level points to the civilization divides across countries and regions, the other refers to the “fault lines between civilizations” within countries or territories.36 Thus, the civilization fault line(s) within countries leads to conflicts just as they do across countries. He concluded, “countries with similar cultures are coming together” while “countries with different cultures are coming apart.”37 For Huntington, civilization fault lines are a source of conflict; civilization homogeneity is a source of unity and peace. Huntington’s arguments for the benefits of cultural homogeneity were troubling for many. Even more disturbing, however, was the apparent good fit between his arguments and religious conflicts. Relying on data from the ARDA collection, Grim and Finke initially found what appears to be strong support for his argument.38 Countries with internal cultural divides experienced higher levels of religious persecution than countries with no divide or those bordering a cultural divide. Figure 1 replicates this finding using an aggregate of persecution events from 2003, 2005, and 2008. Like the earlier study relying on a single year, we find that severe persecution is far more common in nations with internal cultural divides than all other countries. A closer inspection of the data, however, reveals that religious heterogeneity is not the source of the conflicts. Grim and Finke found that countries dominated by one religion, and thus having a high degree of religious homogeneity, experienced the highest levels of religious persecution.39 Figure 2 replicates this finding and demonstrates that religious persecution is far more common in countries with a single dominant religion. Sixteen percent of the countries dominated by one religion experienced 200 or more persecution events. Conversely, the number of persecution events never exceeded 200 for any of the countries with no dominant religion. Further, 70 percent of the countries with no dominant religion had zero persecution events. Contrary to Huntington’s thesis, religious heterogeneity did not fuel conflict. 35 Huntington, Samuel P.: The Clash of Civilizations?, in: Foreign Affairs 72/3 (1993), 22–49. 36 Huntington: Clash of Civilizations?, 29. 37 Huntington, Samuel P.: The Clash of Civilizations and the Remaking of World Order, New York 1996, 125. 38 Grim / Finke: Price of Freedom Denied. 39 Ibid.

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45%

200+ cases per country

13%

Internal Divide (11)

4% Border Divide (68) No Divide (114)

45%

1-200 cases per country

57%

*Number of countries in parentheses

25%

9% 0 Cases

29% 72%

0%

20%

40%

60%

80%

Figure 1: Civilization Divides and Religious Persecution, 2003 2008 Source: ARDA Collection (2012), Grim and Finke (2012)

200+ cases per country

16% 9%

Dominance by One Religion (63)

0%

Dominance by Two Religions (96)

32%

1-200 cases per country

No Dominant Religion (40)

44% 30%

*Number of countries in parentheses 52%

0 Cases

47% 70%

0%

20%

40%

60%

80%

Figure 2: Religion Dominance and Religious Persecution, 2003 2008 Source: ARDA Collection (2012), Grim and Finke (2012)

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This finding has been tested in far greater detail and with much more rigorous analysis in recent studies. The research has demonstrated that social and government restrictions on religion, and not religious or cultural homogeneity, are the best predictors of reduced conflict closely tied to religion.40 In short, it is the response to pluralism, not pluralism per se, that is associated with the level of conflict. Not only does less regulation reduce the grievances of religions, it also decreases the ability of any single religion to wield undue political power. Yet, we would agree that when religions are perceived as a security or cultural threat, restrictions will increase and religious freedoms will decline.41 The Copenhagen school of international relations uses the concept of “securitization,” to explain how a group perceived as an existential threat is then associated with “securitized” issues. Once these issues are “securitized,” they are lifted above what they call ordinary politics and moved to emergency politics.42 When moved to emergency politics, the call for denying religious freedoms increases. The result is an ongoing cycle of reduced freedoms contributing to increased conflicts and increased conflicts resulting in more calls for increased restrictions. The increased restrictions result in more religious grievances and more potential flashpoints for social conflict and the increased social conflict serves as a justification for more restrictions. And so the cycle goes.

2. Religious Freedoms and the United States Many of the key findings of the global overview seem far removed from America. The United States has never had an established religion, it has no formal registration requirements for religions, it supports an independent judiciary and it has often been hailed as a destination for religious freedom. Within the international community it has often been a strong proponent for supporting religious freedoms. The passage of the International Religious Freedom Act of 1998 confirmed that religious freedom would be a part of the nation’s foreign policy as well. Over the past couple decades, however, the U. S. has struggled to 40 Grim, Brian J. / Finke, Roger: Religious Persecution in Cross-National Context: Clashing Civilizations or Regulated Religious Economies?, in: American Sociological Review 72 (2007), 633–658; Finke, Roger / Harris, Jaime: Wars and Rumors of Wars: Explaining Religiously Motivated Violence, in: Fox, Jonathan (ed.): Religion, Politics, Society and the State, Oxford / New York 2012, 53–71: Finke / Martin: Ensuring Liberties. 41 Finke / Martin: Ensuring Liberties; Fox, Jonathan / Finke, Roger / Eisenstein, Marie: Does Societal-Level Discrimination Lead to Government-Based Discrimination against Religious Minorities in Western Democracies? (forthcoming). 42 Buzan, Berry / Waever, Ole / Wilde, Jaap de: Security: A New Framework for Analysis, Boulder / London 1998; Mabee, Bryan: Re-imagining the Borders of US Security after 9/11: Securitization, Risk, and the Creation of the Department of Homeland Security, in: Globalizations 4/3 (2007), 385–397; Waever, Ole: Securitization and Desecuritization, in: Lipschutz, Ronnie (ed.): On Security, New York 1995; Waever, Ole: Politics, Security, Theory, in: Security Dialogue, 42/4–5 (2011), 465–480.

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clearly define the boundaries of religious freedom. Many of the lessons learned in the global overview, also apply to the United States. 2.1 America’s First Freedom

Often described as the “first freedom,” the religious establishment clause and the religious free exercise clause are the first two freedoms listed in the First Amendment to the U. S. Constitution. But the propositions that religion could exist without the support of the state and that multiple religions could live in peace were viewed as undesirable and dangerous notions to many. Support for these two clauses was possible due to an alliance between rationalists such as Thomas Jefferson and evangelical sects such as the Baptists.43 Both sides of this tenuous partnership bemoaned state supported churches. The rationalists sought to free the state from religious controls and concerns, evangelical leaders wished to free the religious sphere from state influence. From these divergent yet complementary motives emerged the religious guarantees of the First Amendment, protecting the free exercise of religion from state interference on the one hand and preventing establishment of a religion supported by the federal government on the other. The results of this “lively experiment” were of interest to many.44 European scholars and church leaders visiting 19th century America marveled at the consequences of the new religious freedoms.45 Perhaps the most celebrated European visitor of the early 19th century, Alexis de Tocqueville, commented that upon his arrival in the United States, “It was the religious atmosphere which first struck me” and he noted that all attributed the “peaceful influence” of religion “to the separation of Church and state.”46 Two of the earliest surveys of American religion by Robert Baird and Philip Schaff each highlighted how the freedoms resulted in a new voluntary principle that stimulated religious activity, but resulted in open competition between Christian brothers.47 The prominent American historian Sidney Mead would later write the religious freedoms ushered in by the Revolutionary Era provided the “hinge upon which the history of Christianity of America really turns.”48 43 Mead, Sidney E.: The Lively Experiment: The Shaping of Christianity in America, New York 1963; Finke, Roger: Religious Deregulation: Origins and Consequences, in: Journal of Church and State 32 (1990): 609–626. 44 Taken from the title of Mead: Lively Experiment. 45 Powell, Milton B. (ed.): The Voluntary Church: Religious Life, 1740–1860, Seen Through the Eyes of European Visitors, New York 1967. 46 Tocqueville, Alexis De: Democracy in America, London 1840/2003. 47 Baird, Robert: Religion in America; or, An Account of the Origin, Progress, Relation to the State, and Present Condition of the Evangelical Churches in the United States. With Notices of the Unevangelical Denomination, Glasgow 1844; Schaff, Philip: America: A Sketch of Its Political, Social, and Religious Character, Cambridge 1855. 48 Mead: Lively Experiment, 52.

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While remnants of the established churches would persist in a few states following the passage of the First Amendment, they gradually gave way to a religious landscape where all faiths were free to operate and subsidies were granted to none. While issues surrounding the establishment clause, such as prayers in public school, were still hotly debated throughout the twentieth century, the Supreme Court seemed to achieve more consensus in the area of religious freedom. A series of Supreme Court cases helped establish the scope of religious freedom and the balance between state interests and individual religious rights. The 1940 Cantwell v. Connecticut case held that religious practices could only be restricted by government if they constituted a “clear and present danger” to the public order.49 This opinion was further clarified by the 1963 Sherbert v. Verner decision and the 1972 Wisconsin v. Yoder cases that followed.50 These cases argued that the state must have “compelling interest” before interfering with religious free exercise. In the Yoder case, for example, the Court argued that the state did not have a compelling interest in forcing Amish children to attend public schools beyond the eighth grade. Yet, since 1990 a series of events have challenged this standard. The challenges illustrate that several of the lessons learned from the global overview can be applied to America. The importance of the judiciary in protecting freedoms, the influence of cultural and social pressures, the call for increased security, and the conflicts between different human rights are all evident in recent efforts to change the standards used for religious freedoms. 2.2 Redefining Religious Freedom

The most significant challenge to the compelling interest standard came from the 1990 Supreme Court decision on the Employment Division of Oregon, Department of Human Resources of Oregon v. Smith case.51 In this case, the Employment Division of Oregon denied unemployment benefits to Alfred Smith and Galen Black, two rehabilitation counselors who had been fired for ingesting peyote during a Native American Church ceremony. The Court did not dispute the use of peyote as an ancient and genuine sacramental practice, but nevertheless concluded that: “… the nation cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.” The majority argued that the law was formally neutral on religion and generally applicable.

49 Cantwell v. Connecticut, 310 U. S. 296 (1940). Flowers, Ronald B: That Godless Court? Supreme Court Decisions on Church-State Relationships, 2nd ed. Louisville 2005, 25. 50 Sherbert v. Verner, 374 U. S. 398 (1963); Wisconsin v. Yoder, 406 U. S. 205 (1972). 51 Employment Division of Oregon, Department of Human Resources of Oregon v. Smith, 494 U. S. 872 (1990).

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Unlike the earlier rulings, there was no attempt to balance the counselors’ free exercise rights against the interests of the state Many, including Justice Sandra Day O’Conner and Professor Michael W. McConnell, addressed the meaning of the controversial ruling. At the 1991 Bicentennial Conference on the Religion Clauses, Justice O’Conner summarized the concerns of many, “The Free Exercise Clause does not mean very much if all a state has to do is make a law generally applicable in order to severely burden a very central aspect of our citizens’ lives.” McConnell explained that the theoretical argument of the Smith case left “the court open to the charge of abandoning its traditional role as protector of minority rights against majoritarian oppression.”52 The decision quickly provoked a hostile reaction that went far beyond the legal community. A petition opposing the decision was supported by many: an unlikely coalition of religious groups (from the Unitarian-Universalist Association to the Baptist Joint Committee on Public Affairs), constitutional scholars, and research think-tanks.53 In a stinging rebuke of the Smith decision, both houses of Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 by nearly unanimous margins, mandating that the compelling interest test laid out in the Sherbert case be used by courts to adjudicate free exercise cases.54 The Court answered in 1997 with its decision in City of Boerne v. Flores, holding that RFRA as it applied to the state courts was unconstitutional, and that Congress had overstepped its bounds in instructing state courts on how to interpret the Constitution.55 What are the consequences of the Smith decision and RFRA? Did this decision reduce the court’s role as a protectorate of minority faiths as McConnell charged? Or, was Justice Kennedy correct that laws of general applicability very rarely burden the free exercise of religion in America?56 In an effort to end the speculation, John Wybraniec read and coded more than 2,000 religion cases making First Amendment claims from 1981 to 1997 at all levels of the judiciary.57 Wybraniec and Finke would later analyze these data using three distinct legal time periods: before Smith, after Smith (but before RFRA), and during the RFRA 52 As quoted in Wood, James E., Jr.: The Religious Freedom Restoration Act, in: Journal of Church and State 33/4 (1991), 673–679, 677. 53 Wood, James E., Jr.: Abridging the Free Exercise Clause, in: Journal of Church and State 32/4 (1990), 741–752, 749–750. 54 Laycock, Douglas: Free Exercise and the Religious Freedom Restoration Act, in: Fordham Law Review 62/4 (1994), 883–904. 55 City of Boerne v. Flores, 521 U. S. 507 (1997); Waltman, Jerold L.: Religious Free Exercise and Contemporary American Politics: The Saga of the Religious Land Use and Institutionalized Persons Act of 2000, New York 2011. 56 Justice Kennedy made this argument when speaking for the majority in City of Boerne v Flores. City of Boerne v. Flores, 117 S. Ct. 2157 (1997). 57 Wybraniec, John: The Battle over Religious Freedom: Court Decisions and the Religious Economy in the United States, West Lafayette 1998 (Ph.D. dissertation).

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40

35 28

30 25 20 15 10 5 0

Pre-Smith (January 1981–April 1990)

Smith RFRA (May 1990–November1993) (December 1993–January 1997)

Lorem Figure 3: Percentage of Favorable Decisions by ipsum Legal Period (N=1,171) Source: Adamczyk, Wybraniec, and Finke (2004) period.58 This allowed the authors to more fully address the key question: what were the consequences of Smith and RFRA? Limiting attention to the 1,171 cases specifically concerned with free exercise issues revealed striking differences for court decisions made prior to Smith, after Smith and prior to RFRA , and after RFRA . Figure 3 charts the differences across these three key time periods. The percentage of favorable decisions declined from 40 % prior to Smith to 28 % following Smith, and rebounded to over 45 % after RFRA was passed. Figure 4 shows that the courts’ use of the compelling interest test follows a nearly identical pattern. Some 24 percent of free exercise cases at all levels utilized this test prior to the Smith decision, but this number fell to 12 percent following Smith. With the passage of RFRA , however, the use of the compelling interest test returned to its approximate pre-Smith level at 25 percent. Although we do not have comparable data on decisions after the Boerne decision found RFRA unconstitutional, the consequences of the Smith decision

58 Wybraniec, John / Finke, Roger: Religious Regulation and the Courts: The Judiciary’s Changing Role in Protecting Minority Religions from Majoritarian Rule, in: Journal for the Scientific Study of Religion 40 (2001), 427–444.

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30 25

24 25

20

15 12 10

5

0

Pre-Smith (January 1981–April 1990)

Smith RFRA (May 1990–November 1993) (December 1993–January 1997)

Figure 4: Percentage of Decisions Citing Compelling Interest (N=1,171). Source: Wybraniec and Finke (2001)

are clear: an immediate reduction in the use of the compelling interest test and a far lower rate of favorable free exercise decisions. Even this drop in favorable rulings underestimates the impact of Smith. Religious groups were less likely to initiate free exercise claims in the period following Smith but prior to RFRA , dropping from 7.1 free exercise cases initiated per month prior to Smith (from 1981 to 1990) to only 3.2 cases in the post-Smith, pre-RFRA period. Without access to free exercise exemptions in the law, religious groups quickly curtailed their attempts to seek redress. This finding is consistent with concerns raised by colonial Baptists during the late 17th and earlier 18th centuries.59 The religious minorities of the late 1990s had far greater protections than the colonial Baptists, but the principle remains the same: when religious minorities receive fewer favorable rulings and appear to receive less protection from the courts, they initiate fewer court actions. This in turn may impact courts’ perceptions of the scope of religious practice; that is, with religious groups turning less to the courts requesting exemptions, the courts may be less 59 McLoughlin, William G.: New England Dissent 1603–1833, Cambridge 1971.

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aware of how laws of general applicability may burden religious exercise.60 The relationships illustrated in Figures 3 and 4 were further confirmed when conducting analysis using multivariate models.61 Even when a long list of controls was entered, the Smith decision and the failure to use the compelling interest test were each significant predictors of unfavorable rulings in free exercise cases. When compared to many global examples, the legal complaints of minority religions in America seem trivial. Yet, the Smith decision, the RFRA legislation challenging Smith, and the Boerne decision challenging RFRA all demonstrate how seemingly minor adjustments to the standards used in courts can significantly impact religions, especially the minority groups. The data collection clearly documented how the Smith decision sharply reduced the percentage of favorable rulings and reduced the number of cases being brought to court. 2.3 Beyond the Courts

Although the judicial decisions in the U. S. held center stage, other changes have been altering discussions on religious freedom. The first was a shift in popular support for the freedoms of all religions following 9/11 and other terrorist acts. Two annual surveys conducted by the First Amendment Center demonstrate how quickly social beliefs and attitudes changed. When the 2000 national survey asked Americans if they agreed that “the freedom to worship as one chooses … applies to all religious groups regardless of how extreme their beliefs are,” 73 percent agreed and only 19 percent thought it did not apply to the “extreme or fringe” beliefs. Only seven years later, however, the percentage agreeing dropped to 56 %.62 Whether it is America, or any other nation around the globe, the will of the majority is far too capricious to provide a safe haven for liberties. The significance of social restrictions informing the changing landscape of religious freedoms are found frequently in the continued social and cultural pressures targeted against Muslims and Islam in the United States. Bail documented how anti-Muslim beliefs not only spread through numerous fringe 60 Professor Drinan makes the similar point that we will not know what happens to religious individuals and persons if RFRA is not reinstated in some form. As he explains, “[a]t the local level, zoning commissions will quietly deny access to Jewish temples, controversial denominations, or Catholic schools. Appeals will not be taken nor will there be any public outcry. The number of individuals who will seek to vindicate their rights under the Smith decision will be small.” See Drinian, Robert F., S. J.: Reflections on the Demise of the Religious Freedom Restoration Act, in: Georgetown Law Journal 86 (1997–1998), 101–122, 115–116. 61 Wybraniec / Finke, Religious Regulation. 62 The results are based on the annual State of the First Amendment survey conducted by the Center for Survey Research and Analysis at the University of Connecticut and were reported in the 2007 “State of the First Amendment Survey Report” http://www. firstamendmentcenter.org/sofa/. Accessed on 3–14–2017. The 2000 survey can be downloaded from the Association of Religion Data Archives, www.theARDA .com.

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organizations, but also identified how these organizations were able to permeate American culture through the media.63 Other researchers document the emergence of social restrictions by emphasizing the impact of fear and reactions to terrorist events.64 Inevitably, prejudicial beliefs lead to social restrictions. Hate crimes and anti-Muslim assaults continued to rise over the last few years, with 2015 experiencing the highest levels since 9/11.65 As the negative perceptions towards Muslims increased and anti-Muslim sentiment garnered greater attention in the social sphere, so too have attempts to legally restrict Islam. In 2011 and 2012 alone, “78 bills or amendments aimed at interfering with Islamic religious practice or vilifying Islam were considered.”66 At the national level, changes to travel and refugee policies have drawn criticism for unfairly restricting Muslims, while favoring other religious practitioners.67 A second factor altering discussions on religious freedom was the legislative action responding to the judicial decisions. Shortly after the Smith decision, complaints were wagered against local governments passing laws that met the new standard of being “formally neutral and generally applicable,” but were viewed as placing undue burdens on religious groups. Zoning restrictions on religious organizations became one of the most immediate and hotly contested issues at the local level. After the Boerne ruling on RFRA , additional legislative actions were taken to address these concerns. The most significant was the Religious Land Use and Institutionalized Persons Act (or RLUIPA) enacted in 2000. This legislation 63 Bail, Christopher: Terrified: How Anti-Muslim Fringe Organizations Became Mainstream, Princeton 2015. 64 Disha, Ilir / Cavendish, James C. / K ing, Ryan D.: Historical Events and Spaces of Hate: Hate Crimes against Arabs and Muslims in Post-9/11 America, in: Social Problems 58/1 (2011), 21–46; King, Ryan D. / Sutton, Gretchen M.: High Times for Hate Crimes: Explaining the Temporal Clustering of Hate-Motivated Offending, in: Criminology 51/4 (2013), 871–894; Hanes, Emma / Machin, Stephen: Hate Crime in the Wake of Terror Attacks: Evidence From 7/7 and 9/11, in: Journal of Contemporary Criminal Justice 30/3 (2014), 247–267; Gaddis, Michael / Ghoshal, Raj: Arab American Housing Discrimination, Ethnic Competition, and the Contact Hypothesis, in: The Annals of the American Academy 660/1 (2015), 282–299. 65 Kishi, Katayoun: Anti-Muslim assaults reach 9/11-era levels, FBI data show, in: Pew Research Center, 21. November 2016, https://www.pewresearch.org/fact-tank/2016/11/21/ anti-muslim-assaults-reach-911-era-levels-fbi-data-show/, accessed 12.31.2017. 66 Council on American-Islamic Relations: A Brief Overview of the Pervasiveness of AntiIslam Legislation, in: Council on American-Islamic Relations, 2013, https://d3n8a8pro​ 7vhmx.cloudfront.net/cairhq/pages/4042/attachments/original/1504515298/Pervasiveness​ -of-anti-Islam-legislation.pdf?1504515298, accessed 12.31.2017. 67 Chalabi, Mona: Support for Trump Travel Ban in Line with Anti-Muslim Attitudes in America, in: The Guardian, 2.  Februar 2017, https://www.theguardian.com/us-news/2017/ feb/02/polls-widespread-backing-trump-travel-ban, accessed 24.08.2018; Thrush, Glenn: Trump’s New Travel Ban Blocks Migrants From Six Nations, Sparing Iraq, in: The New York Times, 6. March 2017, https://www.nytimes.com/2017/03/06/us/politics/travel-banmuslim-trump.html, accessed 24.08.2018.

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required the use of the compelling interest test at both the state and federal levels for free exercise cases that involve prisoners’ rights and land use restrictions on religious organizations.68 When the Supreme Court would later clarify in 2006 that RFRA could be applied in federal courts, but not in state jurisdictions, several states also enacted their own legislation similar to the original RFRA , often referred to as “mini-RFRAs.”69 Unlike RLUIPA , however, the mini-RFRAs have been largely ineffective in changing the rate of favorable rulings, but they have generated heated political debates.70 A third change altering religious freedom discussions, and one that has fueled legislative battles, has been the tensions between religious freedoms and other human rights. Several examples could be offered, such as those arising after the passage of the Affordable Care Act, but the most significant have been related to same-sex marriages and the rights of those in the LGBT community. These tensions have been evident throughout the country and have played out both within and across institutions. The tensions often arise when there are conflicts between anti-discriminatory laws of the state and the teachings of a religion. The Bellmore v. United Methodist Children’s Home case demonstrated this conflict in the area of employment discrimination when the Methodist Children’s Home, which received payments from the state, denied employment to Aimee Bellmore because of her sexual orientation.71 Similar conflicts have arisen in educational institutions. When the St. Cloud University School of Social Work “warned potential social work students that they could not view homosexual behavior as a sin,” the Christian Legal Society protested this requirement, eventually taking the case to the Supreme Court. Attempts in California to end discrimination based on sexual orientation included a law preventing colleges from including special moralityconduct clauses for their students that may discriminate against “protected classes,” even when such clauses reflected the university’s religious beliefs and doctrine. If a university failed to abide by this law, they were subject to losing “access to grants and government backed financial assistance like Cal Grants.”72 68 Jelen, Ted G.: To Serve God and Mammon: Church-State Relations in American Politics, Washington, DC 2010, 84–85. 69 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U. S. 418 (2006); Nugent, Nicholas: Toward a RFRA That Works, in: Vanderbilt Law Review 61/3 (2008), 1027–1066, 1052. 70 Martin, Robert R. / Finke, Roger: The Societal and Legal Impact of Free Exercise Guarantees: Findings from Quantitative Research, in Hertzke, Allen (ed.): Religious Freedom in America: Constitutional Roots and Contemporary Challenges, Norman 2015, 91–116. 71 Stern, Marc D.: Same-Sex Marriage and the Churches, in Laycock, Douglas / Picarello, Anthony R., Jr. / Wilson, Robin Fretwell (eds.): Same-Sex Marriage and Religious Liberty: Emerging Conflicts, Lanham 2008, 1–57. 72 Walker, Andrew T.: California’s Culture War against Religious Liberty, in: National Review, 9. June 2016, https://www.nationalreview.com/2016/06/religious-liberty-threatened-​ california-new-law-gender-identity/, accessed 24.08.2018.

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These conflicts are also reaching into the institution of the family. One prominent example is found within Catholic adoption agencies, where services were ceased once Massachusetts instituted a law preventing discrimination directed at same-sex couples during adoptions. The Catholic Church argued that the shuttering of the adoption agencies was because the new Massachusetts law “violate[d] its conscience.”73 When Douglas Laycock and colleagues assembled a diverse group of legal scholars to discuss the issues surrounding “same-sex marriage and religious liberty,” Laycock concluded that “[e]ach side sees the other as a genuine threat to its values and to its own liberty.”74 He argued that many of these conflicts could be avoided and were the product of extremists on each side making unnecessary demands. Yet, he acknowledged that some of the conflicts are unavoidable. Prominent lawmakers have attempted to institute mini-RFRAs to ensure that religious freedoms will not be denied by the state.75 These mini-RFRAs, however, are often viewed as an effort to use religious liberty as an excuse to discriminate against LGBT communities. When the Indiana Religious Freedom Restoration Act was signed into law, for example, opponents charged that it allowed businesses and other organizations to directly discriminate against LGBT individuals and communities under the guise of religious freedoms.76 The ongoing judicial, legislative and social debates surrounding religious freedoms in the U. S. demonstrate that how religious freedoms are defined and the relationship they hold with the state and larger culture are both undergoing constant change in the U. S. Our review of court cases before and after the Smith decision found that even modest changes in the standards used by the courts can have a significant impact on the protection they provide for religious freedoms, especially the freedoms of minority religions. The rapid shift in social attitudes following 9/11 reveals how capricious the will of the majority can be for 73 United States Conference of Catholic Bishops: Discrimination Against Catholic Adoption Services, in: United States Conference of Catholic Bishops, 2015, http://www.usccb.org/ issues-and-action/religious-liberty/discrimination-against-catholic-adoption-services.​ cfm, accessed 24.08.2018. 74 Laycock / Picarello / Wilson (eds.): Same-Sex Marriage. 75 Gjelten, Tom: In Religious Freedom Debate, 2 American Values Clash, in: NPR .org, 28. February 2017, https://www.npr.org/2017/02/28/517092031/in-religious-freedom-debate2-american-values-clash, accessed 24.08.2018. 76 Cook, Tony / LoBianco, Tom / Stanglin, Doug: Indiana Governor Amended “Religious Freedom” Law, in: USA Today, 2. April 2015, https://www.usatoday.com/story/news/nation/​ 2015/04/02/indiana-religious-freedom-law-deal-gay-discrimination/70819106/, accessed 24.08.2018. Cohn, Jonathan: Why Indiana’s Religious Freedom Law is Such a Big Deal, in: The Huffington Post, 1. April, 2015, https://www.huffpost.com/entry/indiana-religiousfreedom_n_6984156, accessed 24.08.2018. Other debates emphasize the religious and moral concerns surrounding bathroom bills around the country: Svitek, Patrick / Pollock, Cassandra: Religious Leaders Turn to Debate Over Texas “Bathroom Bill”, in: The Texas Tribune, 9. February 2017, https://www.texastribune.org/2017/02/09/bathroom-bill-debatedraws-religious-community/, accessed 24.08.2017.

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protecting human rights. Finally, the heated political debates confirm that there is no clear consensus on how religious freedoms should be protected or how this freedom should be defined. When placed in the global context, the religious freedoms in America appear as both high and stable. Yet, like countries across the globe, judicial decisions, legislative actions, social and cultural pressures and tensions with other human rights all continue to shape how the freedoms are supported or challenged.

Conclusion As we noted in the introduction, the religious freedoms promised in Universal Declaration of Human Rights overlap extensively with other human rights. Religious freedoms can be viewed as an extension of human rights on freedom to assemble and the freedom to hold and express opinions. Yet, we have highlighted three distinctive qualities about religion that often separate it from other human rights. First, religion has an established institutional base that often holds a distinctive relationship with the state; second, religion is often interwoven into the strong cultural and historical ties of a nation; and, third, religion has the institutional and ideological capacity to generate devotion and mobilize activity. Relying on three recent data collections, this essay has documented that despite religious freedoms being routinely promised in global declarations and national constitutions, the freedoms are routinely denied, and the level of restrictions placed on religion is increasing. Even when we confined our attention to a single measure on government interference in religious worship and practice, the challenges to religious freedom are high. As expected, the denial of freedoms was highest in the Middle East and North Africa and in South and Central Asia, but none of the global regions were exempt from this interference. Drawing on past research, we found that the reduction in religious freedom often results from strong social and cultural pressures combined with a judiciary and local institutions that fail to protect these freedoms. We also found that the methods used for denying freedoms are often far more subtle than the open persecution associated with the violation of religious freedoms. Religious registration was reviewed as one method governments use to subtly restrict the freedom and activities of religions. We found that the use of religious registration is increasing and the use of this method for discriminatory purposes is also on the rise. As with restrictions, we found that religious registration was prevalent across the globe. Democracies as well as authoritarian regimes used registration requirements to curtail the activities of select or all religions. One of the most common justifications for increasing registration requirements that curtail religious freedoms is to ensure the safety and well-being of the society as a whole. Contrary to the expectations of Huntington and others, however, we found that religious and cultural homogeneity does not ensure peace and tranquility. Instead, we argued that it is the response to religious

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pluralism, and not religious pluralism per se, that can lead to increased conflict. A reduction in the restrictions placed on religion are associated with reduced social conflicts related to religion. Finally, we offered a brief update on religious freedoms in the United States and the ongoing debates on the limits of these freedoms. Once again, we saw the importance the judiciary has played in determining these limits. The Smith decision demonstrated how a single court case can have a powerful impact on the protections provided to religious minorities and to the larger discussion on religious freedom. The legislative battles that followed illustrated both the efforts to restore old standards for religious freedom and the open conflicts these attempts had with other human rights. Just as religious freedoms can overlap with other human rights, they can also be in open conflict with other rights. Our overview demonstrated that not only can the protections of human rights conflict with religious beliefs, but also religious freedom justifications can be used to impede or impinge upon other human rights. Finding a balance between all human rights, including religious freedoms, remains one of the greatest challenges. Both the stakes and the challenges for ensuring religious freedoms are high. Not only do these freedoms ensure the more general freedoms of expression and assembly, but they are also important for retaining the peace. Our research finds that during the times when religious freedoms are most essential for preserving the peace, the social pressures for increasing the restrictions are the highest.

Bibliography Affi, Ahmed / Affi, Hassan: Contemporary Interpretation of Islamic Law, Kibworth Beauchamp 2014. Anderson, Carol: Eyes off the Prize: The United Nations and the African American Struggle for Human Rights, 1944–1955, Cambridge 2003. Arenhövel, Mark: Über das Befriedungspotenzial der Religionen in der postsäkularen Gesellschaft, in: Brocker, Manfred / Hildebrandt, Matthias (eds.): Friedensstiftende Religionen? Religionen und die Deeskalation politischer Konflikte, Wiesbaden 2008, 158–178. The Assembly of Canonical Orthodox Bishops of the United States of America: Response to Racist Violence in Charlottesville, VA, 18. August 2017, http://www. assemblyofbishops.org/news/2017/response-to-racist-violence-charlottesville-va, accessed 22.03.2018. Auxier, Randall E. / Hahn, Lewis E. (eds.): The Philosophy of Richard Rorty, Chicago 2010. Bail, Christopher: Terrified: How Anti-Muslim Fringe Organizations Became Mainstream, Princeton 2015. Baird, Robert: Religion in America; or, An Account of the Origin, Progress, Relation to the State, and Present Condition of the Evangelical Churches in the United States. With Notices of the Unevangelical Denomination, Glasgow 1844. Barreto, José-Manuel: Rorty and Human Rights: Contingency, Emotions and How to Defend Human Rights Telling Stories, in: Utrecht Law Review 7/2 (2011), 96–99. Barsalou, Oliver: The Cold War and the Rise of an American Conception of Human Rights, 1945–48, in: Slotte, Pamela / Halme-Tuomisaari, Miia (eds.): Revisiting the Origins of Human Rights, Cambridge 2015, 362–380. Bederin, Mashood: Islam and Human Rights: Advocacy for Social Change in Local Contexts, New Delhi 2006. Beecher, Henry K.: Ethics and Clinical Research, in: The New England Journal of Medicine 274 (1966), S.1354–1360. Benhabib, Seyla: Dignity in Adversity: Human Rights in Troubled Times, Cambridge 2011. Berger, Deidre / Bindenagel, James D. / Fücks, Ralf / u. A.: “In Spite of It All, America: A Trans-Atlantic Manifesto in Times of Donald Trump – a German Perspective,” in: The New York Times, 11. October 2017. https://www/nytimes.com/2017/10/11/ world/europe/germany-united-states-trump-manifesto.html, accessed 21.03.2018. Berger, Peter L.: The Desecularization of the World: Resurgent Religion and World Politics, Washington D. C. 1999. Bezzerides, A. M. / Prodromous, E. H. (eds.): Eastern Orthodox Christianity and American Higher Education: Theological, Historical and Contemporary Reflections, Notre Dame 2016. Billings, Dwight B. / Scott, Shaunna L.: Religion and Political Legitimation, in: Annual Review of Sociology 20 (1994), S.173–202. Birnbacher, D.: Mehrdeutigkeiten im Begriff der Menschenwürde, in: Aufklärung und Kritik 1 (1995), 4–13.

154

Bibliography

Bolotin, A. / Quinquis, B. / Sorokin, A. / Ehrlich, S. D.: Clustered Regularly Interspaced Short Palindrome Repeats (CRISPRs) Have Spacers of Extrachromosomal Origin, in: Microbiology 151/8 (August 2005), 2551–61. Bon Tempo, Carl: Americans at the Gate: The United States and Refugees During the Cold War, Princeton 2009. Bon Tempo, Carl: From the Center-Right: Freedom House and Human Rights in the 1970s and 1980s, in Iriye, Akira / Goedde, Petra / Hitchcock, William (eds.): The Human Rights Revolution: An International History, New York 2012, 223–244 Bon Tempo, Carl: Human Rights and the U. S. Republican Party in the Late 1970s, in: Moyn, Samuel / Eckel, Jan (eds.): The Breakthrough: Human Rights in the 1970s, Philadelphia 2013, 146–165. Bon Tempo, Carl: U. S. Refugee Policy and the Forty Years Crisis, in: Reinisch, Jessica / Frank, Matthew (eds.): Refugees in Twentieth-Century Europe: The Forty Years Crisis?, New York 2017, 177–194. Borgwardt, Elizabeth: A New Deal for the World: America’s Vision for Human Rights, Cambridge 2005. Bradley, Mark: The World Re-Imagined: Americans and Human Rights in the Twentieth Century, Cambridge 2016. Brett, Annabel: “Human Rights and the Thomist Tradition,” in: Slotte, Pamela / HalmeTuomisaari, Miia (eds.): Revisiting the Origins of Human Rights, Cambridge 2015, 82–101. Brieskorn, Norbert: Menschenrechte. Eine historisch-philosophische Grundlegung, Stuttgart 1997. Brock, Dan W.: Voluntary Active Euthanasia, in: Hastings Center Report 22/2 (1992), 10–22. Brocker, Manfred / Hildebrandt, Matthias (eds.): Friedensstiftende Religionen? Religionen und die Deeskalation politischer Konflikte, Wiesbaden 2008. Broyde, Michael J.: Access to Justice in Jewish Financial Law: The Case of Returning Lost Property, in: Harris, Michael J. / Rynhold, Daniel / Wright, Tamra (eds.): Radical Responsibility: Celebrating the Thought of Chief Rabbi Lord Jonathan Sacks, New York / Jerusalem 2013, 111–123. Broyde, Michael J.: Child Custody: A Pure Law Analysis, in: Passamaneck, S. M. / Finley, M.: Jewish Law Association Studies VII: The Paris Conference Volume, Binghamton 1994, 1–20. Broyde, Michael J.: Introduction: Rights and Duties in the Jewish Tradition, in: Pollack, Daniel (ed.): Contrasts in American and Jewish Law, Hoboken 2001, xxii–xxx. Broyde, Michael J. / Pill, Shlomo C.: Human Rights in Judaism: Freedom of Religion, Conscience, and Association in Rabbinic Practice (forthcoming). Broyde, Michael J. / Witte, John Jr. (eds.): Human Rights in Judaism: Cultural, Religious, and Political Perspectives, Lanham 1998. Buzan, Berry / Waever, Ole / Wilde, Jaap de: Security: A New Framework for Analysis, Boulder / London 1998. Caney, Simon: Climate Change, Human Rights and Moral Thresholds, in: Humphreys, Stephen (ed.): Human Rights and Climate Change, Cambridge 2010, 69–90. Caney, Simon : Human Rights and Global Climate Change, in: Pierik, Oland / Werner, Wouter (eds.): Cosmopolitanism in Context: Perspectives from International Law and Political Theory, Cambridge 2010, 19–44.

Bibliography

155

Casanova, Jose: Public Religions in the Modern World, Chicago 1994. Catholic Church: The Dignity of the Human Person, in: Catechism of the Catholic Church, Part Three, Section One, Chapter One, Articles 1–8, http://www.vatican. va/archive/ccc_css/archive/catechism/p3s1c1.htm, accessed 03.07.2019. Chalabi, Mona: Support for Trump Travel Ban in Line with Anti-Muslim Attitudes in America, in: The Guardian, 2. Februar 2017, https://www.theguardian.com/us-​ news/2017/feb/02/polls-widespread-backing-trump-travel-ban, accessed 24.08.2018. Cmiel, Kenneth: The Emergence of Human Rights Politics in the United States, in: Journal of American History, 86/3 (1999), 1231–1250. Cohen, G. Daniel, The Holocaust and the “Human Rights Revolution”: A Reassessment, in: Iriye, Akira / Goedde, Petra / Hitchcock, William (eds.): The Human Rights Revolution: An International History, New York 2012. Cohen, G. Daniel: In War’s Wake: Europe’s Displaced Persons in the Postwar Order, New York 2011. Cohn, Jonathan: Why Indiana’s Religious Freedom Law is Such a Big Deal, in: The Huffington Post, 1. April, 2015, https://www.huffpost.com/entry/indiana-religiousfreedom_n_6984156, accessed 24.08.2018. Conn, James S. J.: Roman Catholic Response to “Duty to Educate—Fact Pattern,” in: Symposium on Religious Law: Roman Catholic, Islamic, and Jewish Treatment of Familial Issues, Including Education, Abortion, In Vitro Fertilization, Prenuptial Agreements, Contraception, and Marital Fraud, in: Loyola of Los Angeles International & Comparative Law Journal 16/1 (1993), 12–21. Cook, Tony / LoBianco, Tom / Stanglin, Doug: Indiana Governor Amended “Religious Freedom” Law, in: USA Today, 2. April 2015, https://www.usatoday.com/story/ news/nation/2015/04/02/indiana-religious-freedom-law-deal-gay-discrimination/​ 70819106/, accessed 24.08.2018. Corley, Felix / K inahan, John: Azerbaijan: Religious Freedom Survey, in: Forum 18 News Service, 17. April 2012, http://www.forum18.org/archive.php?article_id=1690, accessed 24.08.2018. Cover, Robert M.: Obligation: A Jewish Jurisprudence of the Social Order, in: Journal of Law & Religion 5/65 (1987), 65–74. Davis, Mark H.: Measuring Individual Differences in Empathy: Evidence for a Multidimensional Approach, in: Journal of Personality and Social Psychology 44/1 (1983), 113–126. Detrick, Sharon: The United Nations Convention on the Rights of the Child: A Guide to the Travaux Préparatoroires, Dordrecht 1992, 382–403. Deuser, Hermann / Joas, Hans / Jung, Matthias / Schletter, Magnus (eds.): The Varieties of Transcendence: Pragmatism and the Theory of Religion, New York 2016. Deutsche Forschungsgemeinschaft: Animal Experiments in Research, Bonn 2007. Disha, Ilir / Cavendish, James C. / K ing, Ryan D.: Historical Events and Spaces of Hate: Hate Crimes against Arabs and Muslims in Post-9/11 America, in: Social Problems 58/1 (2011), 21–46. Doise, Willem / Spini, Dario / Clémence, Alain: Human Rights Studied as Social Representations in a Cross-National Context, in: European Journal of Social Psychology 29/1 (1999), 1–29. Dravenau, Daniel: Die Entwicklung milieuspezifischer Handlungsbefähigung, in: Grundmann, Matthias / u. a. (eds.): Handlungsbefähigung und Milieu, Berlin 2006, 191–235.

156

Bibliography

Drinian, Robert F., S. J.: Reflections on the Demise of the Religious Freedom Restoration Act, in: Georgetown Law Journal 86 (1997–1998), 101–122. Durham, W. Cole Jr. / Tahzib-Lie, Bahia G. (eds.): Facilitating Freedom of Religion or Belief: A Deskbook, Leiden 2004. Duvert, Cyrille: Anti-Cultism in the French Parliament, in: Richardson, James T. (ed.): Regulating Religion: Case Studies From Around the Globe, New York 2004, 41–52. Dworkin, Gerald / Frey, Raymond G. / Bok, Sissela: Euthanasia and Physician-Assisted Suicide: For and Against, Cambridge 1998. Eckel, Jan: The Rebirth of Politics from the Spirit of Morality: Explaining the Human Rights Revolution of the 1970s, in: Moyn, Samuel / Eckel, Jan (eds.): The Breakthrough: Human Rights in the 1970s, Philadelphia 2013, 226–259. Edenhofer, Ottmer / Wallacher, Johannes / Lotze-Campen, Hermann / Reder, Michael / ​ Knopf, Brigitte / Müller, Johannes (eds.): Climate Change, Justice and Sustainability: Linking Climate and Development Policy, New York / London 2012. Eichenberg, Julia: Sammelrezension: Geschichte der Menchenrechte, in: Hsozkult.​ de, 23. Dezember 2016, http://hsozkult.geschichte.hu-berlin.de/rezensionen/​20164-201, accessed 23.12.2016. Eisenberg, Nancy / Strayer, Janet (eds.): Empathy and Its Development, Cambridge 1990. Elon, Menachem: Jewish Law: History Sources and Principles, Philadelphia 1948. Elon, Menacham (ed.): The Principles of Jewish Law, Jerusalem 2007. Emanuel, Ezekiel J.: Euthanasia: Historical, Ethical, and Empiric Perspectives, in: Archives of Internal Medicine 154/17 (1994), 1890–1901. Encyclopedia Judaica, Jerusalem 1973. Encyclopedia Talmudica, Jerusalem 1978. Esser, Andrea Marlen: Eine Ethik für Endliche. Kants Tugendlehre in der Gegenwart, Stuttgart / Bad Cannstatt 2004. Evans, Robert: Military Scientists Tested Mustard Gas on Indians, in: The Guardian, 1. September 2007, https://www.theguardian.com/uk/2007/sep/01/india.military, accessed 20.08.2018. Fikentscher, Wolfgang: Methoden des Rechts in vergleichender Darstellung, Bd. 2: Anglo-amerikanischer Rechtskreis, Tübingen 1975. Finke, Roger: Religious Deregulation: Origins and Consequences, in: Journal of Church and State 32 (1990), 609–626. Finke, Roger / Harris, Jaime: Wars and Rumors of Wars: Explaining Religiously Motivated Violence, in: Fox, Jonathan (ed.): Religion, Politics, Society and the State, Boulder 2012, 53–71. Finke, Roger / Martin, Robert R.: Ensuring Liberties: Understanding State Restrictions on Religious Freedoms, in: Journal for the Scientific Study of Religion 53/4 (2014), 687–705. Finke, Roger / Mataic, Dane R. / Fox, Jonathan: Assessing the Impact of Religious Registration, in: Journal for the Scientific Study of Religion 56/4 (May 2018), 720–736. Finke, Roger / Martin, Robert R. / Fox, Jonathan: Explaining Religious Discrimination against Religious Minorities, in: Politics & Religion, 10/2 (2017), 389–416.  Flashberty, James: Rorty, Religious Beliefs, and Pragmatism, in: International Philosophical Quarterly 45/2 (2005), 175–185. Fox, Jonathan: Political Secularism, Religion and the State: A Time Series Analysis of Worldwide Data, New York 2015.

Bibliography

157

Fox, Jonathan (ed.): Religion, Politics, Society and the State, Oxford / New York 2012. Fox, Jonathan: AWorld Survey of Religion and the State, New York 2008. Fox, Jonathan / Finke, Roger / Eisenstein, Marie: Does Societal-Level Discrimination Lead to Government-Based Discrimination against Religious Minorities in Western Democracies? (forthcoming). Frankenberry, Nancy (ed.): Radical Interpretation in Religion, Cambridge 2002. Friedmann, Wolfgang: Law in a Changing Society, Berkeley 1959. Froese, Paul: The Great Secularization Experiment: What Soviet Communism Taught Us About Religion in the Modern Era, Berkeley 2008. Frondhoff, Bert-Friedrich / Hoffmann, Siegfried: Gene-Editing Decision Outrages German Researchers, in: Handelblatt Global, 28. July 2018, https://global.handelsblatt. com/companies/german-eu-crispr-ruling-biotech-949606, accessed 20.08.2018. Funk, Josef: Der Primat des Naturrechts: Die Transzendenz des Naturrechts gegenüber dem positiven Recht, Mödling bei Wien 1952. Gaddis, S. Michael / Ghoshal, Raj: Arab American Housing Discrimination, Ethnic Competition, and the Contact Hypothesis, in: The Annals of the American Academy 660/1 (2015), 282–299. Gattrell, Peter: The Making of the Modern Refugee, Oxford 2013. Gest, Alain / Guyard, Jacques: Report Made in the Name of the Board of Inquiry into Sects, 22. December 1995, http://www.assemblee-nationale.fr/rap-enq/r2468.asp, accessed 24.08.2018. Gjelten, Tom: In Religious Freedom Debate, 2 American Values Clash, in: NPR . org, 28. February 2017, https://www.npr.org/2017/02/28/517092031/in-religiousfreedom-debate-2-american-values-clash, accessed 24.08.2018. Glendon, Mary Ann: Rights Talk: The Impoverishment of Political Discourse, New York 1991. Gold, Hal: Unit 731 Testimony: Japan’s Wartime Human Experimentation Program, Tokyo 1996. Gomien, Donna: Whose Right (and Whose Duty) Is It? An Analysis of the Substance and Implementation of the Convention on the Rights of the Child, in: Human Rights 7/161 (1989), S.162–165. Goodman, Lenn E.: Religious Pluralism and Values in the Public Sphere, New York 2014. Grim, Brian J. / Finke, Roger: International Religion Indexes: Government Regulation, Government Favoritism, and Social Regulation of Religion, in: Interdisciplinary Journal of Research on Religion 2 (2006), 1–40. Grim, Brian J. / Finke, Roger: The Price of Freedom Denied: Religious Persecution and Violence, Cambridge 2011. Grim, Brian J. / Finke, Roger: Religious Persecution in Cross-National Context: Clashing Civilizations or Regulated Religious Economies?, in: American Sociological Review 72 (2007), 633–658. Grimm, Dieter: Dignity in a Legal Context: Dignity as an Absolute Right, in: McCrudden, Christopher (ed.): Understanding Human Dignity, Oxford 2013, 381–391. Grimm, Dieter: “Ich bin ein Freund der Verfassung”: Wissenschaftsbiographisches Interview von Oliver Lepsius, Christian Waldhoff und Matthias Roßbach, Tübingen 2017.

158

Bibliography

Große Kracht / Hermann-Josef (eds.): Der moderne Glaube an die Menschenwürde, Bielefeld 2014. Grundmann, Matthias / u. a. (eds.): Handlungsbefähigung und Milieu, Berlin 2006. Gurrentz, Benjamin T. / Finke, Roger: When Contact Counts: Intergroup Contact on Business and Intermarriage Resistance in the Caucasus Region, in: Social Science Research 63 (2017), 308–323. Habermas, Jürgen: An Awareness of What is Missing, in: Habermas, Jürgen / Reder, Michael / Schmidt, Josef (eds.): Awareness of What is Missing: Faith and Reason in a Post-Secular Age, Cambridge 2010. Habermas, Jürgen: Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Cambridge 1996. Habermas, Jürgen: Between Naturalism and Religion: Philosophical Essays, Cambridge 2008. Habermas, Jürgen: The Future of Human Nature, Cambridge 2003. Habermas, Jürgen: The Inclusion of The Other, Cambridge 1998. Habermas, Jürgen: Der interkulturelle Diskurs über Menschenrechte: Vermeint­liche und tatsächliche Probleme, in: E+Z: Entwicklung und Zusammenarbeit 38/7 (1997), 164–166. Habermas, Jürgen (ed.): Justification and Application: Remarks on Discourse Ethics, Cambridge 1991. Habermas, Jürgen: On the Concept of Human Dignity and the Realist Utopia of Human Rights, in: Metaphilosophy 41/4 (2010), 464–480. Habermas, Jürgen: The Postnational Constellation: Political Essays, Cambridge 2001. Habermas, Jürgen: The Theory of Communicative Action, Boston 1984/1987. Habermas, Jürgen / Reder, Michael / Schmidt, Josef (eds.): Awareness of What is Missing: Faith and Reason in a Post-Secular Age, Cambridge 2010. Hale, C. R., u. a.: RNA-Guided RNA Cleavage by a CRISPR RNA-Cas Protein Complex, in: Cell 139 (2009), 945–956. Hanes, Emma / Machin, Stephen: Hate Crime in the Wake of Terror Attacks: Evidence From 7/7 and 9/11, in: Journal of Contemporary Criminal Justice 30/3 (2014), 247–267. Harkness, J.  /  Lederer, S. E.  /  Wikler, D.: Laying Ethical Foundations for Clinical Research, in: Bulletin of the World Health Organization 79/4 (2001), 365–366. Harris, John: Consent and End-of-Life Decisions, in: Journal of Medical Ethics, 29/1 (2003), 10–15. Harris, Michael J. / Rynhold, Daniel / Wright, Tamra (eds.): Radical Responsibility: Celebrating the Thought of Chief Rabbi Lord Jonathan Sacks, New York / Jerusalem 2013. Hart, H. L. A.: The Concept of Law, Oxford 1961. Heintzelman, Carol A.: The Tuskegee Syphilis Study and Its Implications for the 21st Century, in: The New Social Worker 10/4 (2003), http://www.socialworker. com/feature-articles/ethics-articles/The_Tuskegee_Syphilis_Study_and_Its_ Implications_for_the_21st_Century/, accessed 20.08.2018. Helmholz, Richard H.: The Spirit of Classical Canon Law, Athens 2010. Heneghan, Tom: Germany Worried About ‘Imported Anti-Semitism’ After Immigrant Protests, in: National Catholic Reporter, 10. Januar 2018, https://www.

Bibliography

159

ncronline.org/news/world/germany-worried-about-imported-anti-semitism-afterimmigrant-protests, accessed 23.03.2018. Hertzke, Allen (ed.): Religious Freedom in America: Constitutional Roots and Contemporary Challenges, Norman 2015. Herzog, Isaac: Moral Rights and Duties in Jewish Law in: The Main Institutions of Jewish Law, Bd. 1, London 1936, 381–386. Hoffman, Martin L.: The Contribution of Empathy to Justice and Moral Judgment, in: Eisenberg, Nancy / Strayer, Janet (eds.): Empathy and Its Development, Cambridge 1990, 47–80. Hoffmann, Stefan Ludwig (ed.): Human Rights in the Twentieth Century, Cambridge / New York 2010. Hoffmann, Stefan Ludwig: Introduction: Genealogies of Human Rights, in: Hoffmann, Stefan Ludwig (ed.): Human Rights in the Twentieth Century, Cambridge / New York 2010, S.1–26. Holmes, Oliver Wendell: The Path of the Law, in: Harvard Law Review 10 (1897), 457–478. Hopf, C. / Nunner-Winkler, G. (eds.): Frühe Bindungen und moralische Entwicklung, Weinheim / Munich 2007. Horan, Kathleen Conrey: Postminority Support for College Education—A Legally Enforceable Obligation in Divorce Proceedings?, in: Family Law Quarterly 20/4 (1987), 589–612. Hunt, Lynn: Inventing Human Rights: A History, New York, 2008. Huntington, Samuel P.: The Clash of Civilizations?, in: Foreign Affairs 72/3 (1993), 22–49. Huntington, Samuel P.: The Clash of Civilizations and the Remaking of World Order, New York 1996. Hurrelmann, Klaus / Grundmann, Matthias / Walper, Sabine (eds.): Handbuch Sozialisationsforschung, Weinheim / Basel 2008. Inazu, John D.: Confident Pluralism: Surviving and Thriving through Deep Difference, Chicago 2016. Iriye, Akira / Goedde, Petra / Hitchcock, William (eds.): The Human Rights Revolution: An International History, New York 2012. Ishay, Michelline: The History of Human Rights: From Ancient Times to the Globalization Era, Berkeley 2008 Jelen, Ted G.: To Serve God and Mammon: Church-State Relations in American Politics, Washington, DC 2010. Joas, Hans: Religious Experience and its Interpretation: Reflections on James and Royce, in: Deuser, Hermann / Joas, Hans / Jung, Matthias / Schletter, Magnus (eds.): The Varieties of Transcendence: Pragmatism and the Theory of Religion, New York 2016, 219–235. Joas, Hans: The Sacredness of the Person: A New Genealogy of Human Rights, Washington, D. C. 2013. Jones, Timothy: Constitutional Court Strikes Down Absolute Headscarf Ban, in: DW.com, 13. März 2015, http://www.dw.com/en/constitutional-court-strikes-down-​ absolute-headscarf-ban/a-18313377, accessed 22.03.2018. Kamisar, Yale: Are Laws Against Assisted Suicide Unconstitutional?, in: Hastings Center Report 23/3 (1993), 32–41.

160

Bibliography

Kao, Grace Y.: Grounding Human Rights in a Pluralist World, Washington, D. C. 2011. Kass, Leon: Neither for Love nor Money: Why Doctors Must Not Kill, in: The Public Interest 94 (1989), 25–46. Kaufmann, Arthur: Die Ontologische Begründung des Rechts, Darmstadt 1965. Kaufmann, Erich: Grundtatsachen und Grundbegriffe der Demokratie, München 1951. Keller, Monika / Malti, Tina: Sozialisation sozio-moralischer Kompetenzen, in: Hurrelmann, Klaus / Grundmann, Matthias / Walper, Sabine (eds.): Handbuch Sozialisationsforschung, Weinheim / Basel 2008, 411–412. Keller, Monika / Malti, Tina / Dravenau, Daniel: Bindung, Sozialisation und die Entwicklung sozio-moralischen Denkens von der Kindheit bis zum Jugendalter, in: Hopf, C. / Nunner-Winkler, G. (eds.): Frühe Bindungen und moralische Entwicklung, Weinheim / Munich 2007, 125–150. Kelly, Patrick William: Sovereign Emergencies: Latin America and the Making of Global Human Rights Politics, Cambridge 2018. Keys, Barbara: Reclaiming American Virtue, Cambridge 2014. King, Ryan D. / Sutton, Gretchen M.: High Times for Hate Crimes: Explaining the Temporal Clustering of Hate-Motivated Offending, in: Criminology 51/4 (2013), 871–894. Kishi, Katayoun: Anti-Muslim assaults reach 9/11-era levels, FBI data show, in: Pew Research Center, 21. November 2016, https://www.pewresearch.org/fact-tank/2016/​ 11/21/anti-muslim-assaults-reach-911-era-levels-fbi-data-show/, accessed 12.31.2017. Koerner, Robert Lee: Modern Trends in Legal Theory, in: The Catholic Lawyer 3 (1957), 143–154. Koesel, Karrie J.: Region and Authoritarianism: Cooperation, Conflict, and the Consequences, New York 2014. Konvitz, Milton R.: Judaism and Human Rights, New York 1972. Krawietz, Werner: Das positive Recht und seine Funktion, kategoriale und methodologische Überlegungen zu einer funktionalen Rechtstheorie, Berlin / Munich 1967. Kriele, Martin: Befreiung und politische Aufklärung: Plädoyer für die Würde des Menschen, Freiburg 1980. Krüger, Uwe: Der Adressat des Rechtsgesetzes: Ein Beitrag zur Gesetzgebungslehre, Berlin / Munich 1969. Lamm, Norman: Torah Umadda: The Encounter of Religious Learning and Worldly Knowledge in the Jewish Tradition, Northvale 1992. Lander, E. S.: The Heroes of CRISPR , in: Cell 164 (2016), 18–28. Laycock, Douglas: Free Exercise and the Religious Freedom Restoration Act, in: Fordham Law Review 62/4 (1994), 883–904. Laycock, Douglas / Picarello, Anthony R., Jr. / Wilson, Robin Fretwell (eds.): Same-Sex Marriage and Religious Liberty: Emerging Conflicts, Lanham 2008. Lehner, Ulrich: The Catholic Enlightenment: The Forgotten History of a Global Movement, Oxford / New York: 2016. Lessius, Leonardus: De Justitia et Jure ceterisque virtutibus cardinalibus, o. O. 1662. Levesque, Roger: International Human Rights Grow Up: Implications for America Jurisprudence and Domestic Policy, in: California Western International Law Journal 24 (1994), 193–240. Levine, Aaron: Free Enterprise and Jewish Law, New York 1980.

Bibliography

161

Levy, Ken: Gonzales v. Oregon and Physician-Assisted Suicide: Ethical and Policy Issues, in: Tulsa Law Review 42 (2007), 699–729. Li, Anne: ‘Religious Liberty’ Has Replaced ‘Gay Marriage’ In GOP Talking Points, in: FiveThirtyEight, 9. Maerz 2016. https://fivethirtyeight.com/features/religiousliberty-has-replaced-gay-marriage-in-gop-talking-points/, accessed 07.12.2017. Lipschutz, Ronnie (ed.): On Security, New York 1995. Liptak, Adam: Across the Atlantic, Another Supreme Court Case on Cake and Gay Rights, in: The New York Times, 18. Dezember 2017, https://www.nytimes.com/​ 2017/12/18/us/politics/northern-ireland-court-case-cake-gay-rights.html, accessed 18.12.2017. Loescher, Gil / Scanlan, John: Calculated Kindness: Refugees and America’s Half Open Door, 1945-Present, New York 1986. Lohmann, G.: Nicht affektive Ergriffenheit, sondern öffentlicher Diskurs. Sakrali­ sierte Person oder säkulare Menschenwürde als Basis der Menschenrechte, in: Große Kracht / Hermann-Josef (eds.): Der moderne Glaube an die Menschenwürde, Bielefeld 2014, 13–27. Lopez-Munoz, F. / Garcia-Garcia, P. / A lamo, C.: The Pharmaceutical Industry and the German National Socialist Regime: I. G. Farben and Pharmacological Research, in: Journal of Clinical Pharmacy and Therapeutics 34 (2009), 67–77. Luce, John M. / A lpers, Ann: Legal Aspects of Withholding and Withdrawing Life Support from Critically Ill Patients in the United States and Providing Palliative Care to Them, in: American Journal of Respiratory and Critical Care Medicine 162/6 (2000), 2029–2032. Lutz-Bachman, Matthias / Bohmann, James (eds.): Frieden durch Recht: Kants Friedensidee und das Problem einer neuen Weltordnung, Frankfurt am Main 1996. Mabee, Bryan: Re-imagining the Borders of US Security after 9/11: Securitization, Risk, and the Creation of the Department of Homeland Security, in: Globalizations 4/3 (2007), 385–397. Mack, Elke / Schramm, Michael / K lasen, Stephen / Pogge, Thomas (eds.): Absolute Poverty and Global Justice. Empirical Data—Moral Theories—Initiatives, London / New York 2009. Maihofer, Werner: Naturrecht oder Rechtspositivismus, Bad Homburg 1962. Makrides, Vasilios N. / Wasmuth, Jennifer / Kube, Stefan (eds.): Christentum und Menschenrechte in Europe. Perspektiven und Debatten in Ost und West, Frankfurtam-Main 2016. Mali, P., u. a.: RNA-Guided Human Genome Engineering via Cas9, in: Science 339 (2013), 823–826. Mall, Ram A.: Intercultural Philosophy, Lanham 2000. Marchart, Oliver: Post-Foundational Political Thought: Political Difference in Nancy, Lefort, Badiou and Laclau, Edinburgh 2007. Marrus, Michael: The Unwanted: European Refugees in the Twentieth Century, Oxford 1985. Martin, Robert R. / Finke, Roger: The Societal and Legal Impact of Free Exercise Guarantees: Findings from Quantitative Research, in Hertzke, Allen (eds.): Religious Freedom in America: Constitutional Roots and Contemporary Challenges, Norman 2015, 91–116. Matzner-Bekerman, Shoshana: The Jewish Child: Halakhic Perspectives, Hoboken 1984.

162

Bibliography

McCrudden, Christopher: Human Dignity and Judicial Interpretation of Human Rights, in: The European Journal of Law 19/4 (2008), 655–724. McCrudden, Christopher (ed.): Understanding Human Dignity, Oxford 2013. McLoughlin, William G.: New England Dissent 1603–1833, Cambridge 1971. Mead, Sidney E.: The Lively Experiment: The Shaping of Christianity in America, New York 1963. Mislin, David: The Messy Reality of Religious Liberty In America, in Salon, 3. Dezember 2017. https://www.salon.com/2017/12/03/the-messy-reality-of-religious-liberty-​ in-​america_partner/, letzer Zugriff 07.12.2017. Moodle, Michael R. / Conn, James / A l-Hibri, Azizah / Broyde, Michael J. / u. A.: Symposium on Religious Law: Roman Catholic, Islamic, and Jewish Treatment of Familial Issues, Including Education, Abortion, In Vitro Fertilization, Prenuptial Agreements, Contraception, and Marital Fraud, in: Loyola of Los Angeles International & Comparative Law Journal 16/1 (1993), 9–106. Movsesian, Mark: Religious Rights, in: First Things, Januar 2016, http://www.firsthings. com/article/2016/01/religious-rights, accessed 21.03.2018. Moyn, Samuel / Eckel, Jan (eds.): The Breakthrough: Human Rights in the 1970s, Philadelphia 2013. Moyn, Samuel: Christian Human Rights, Philadelphia 2015. Moyn, Samuel: The Last Utopia: Human Rights in History, Cambridge 2010. Müller, Johannes: Entwicklungspolitik als globale Herausforderung. Methodische und ethische Grundlegung, Stuttgart 1997. Müller, Johannes / Reder, Michael: Religions and Global Justice: Reflections from an Inter-cultural and Inter-religious Perspective, in: Mack, Elke / Schramm, Michael / ​ Klasen, Stephen / Pogge, Thomas (eds.): Absolute Poverty and Global Justice. Empirical Data—Moral Theories—Initiatives, London / New York 2009, 91–99. Mukherjee, Sy: Goldman Sachs: China is beating the US in the Gene Editing Arms Race, in: Fortune, 13. April 2018, http://fortune.com/2018/04/13/goldman-sachschina-gene-editing-race/; accessed 20.08.2018. Nancy, Jean-Luc: The Inoperative Community, Minneapolis 1991. Natapoff, Alexandra: 1993: The Year of Living Dangerously: State Courts Expand the Right to Education, in: Education Law Reporter 92 (1994), 755–787. National Academies of Science, Engineering and Medicine: Human Genome Editing: Science, Ethics, and Governance, Washington, D. C. 2017. Neeleman, J: Suicide as a Crime in the UK : Legal History, International Comparisons and Present Implications, in: Acta Psychiatrica Scandinavica 94/4 (1996), 252–257. Nienaber, Michael: “Europe must do more to defend liberal world order—Germany’s Schaeuble,” in: Reuters¸ 20. June 2017. https://www.reuters.com/article/us-germany-​ europe-schaeuble-idUSKBN19B30C, accessed 21.03.2018. Noll, Peter: Gesetzgebungslehre, Bd. 37: Rororo Studium: Rechtswissenschaften, Rein­ bek 1973. Noonan, John T., Jr.: A Church That Can and Cannot Change: The Development of Catholic Moral Teaching, Notre Dame 2005. Nordenfelt, Lennart: The Varieties of Dignity, in: Health Care Analysis 12/2 (2004), 69–81. Novack, David: Religious Human Rights in Judaism, in: Broyde, Michael J. / Witte,

Bibliography

163

John Jr. (eds.): Human Rights in Judaism: Cultural, Religious, and Political Perspectives, Lanham 1998, 1–33. Nugent, Nicholas: Toward a RFRA That Works, in: Vanderbilt Law Review 61/3 (2008), 1027–1066. o.A.: Displaced Persons Get Spellman Aid, in: The New York Times, 16. Juni 1947. o.A.: People Without Countries, in: The New York Times, 2. Mai 1947. o.A.: Rechtsprobleme in Staat und Kirche: Festschrift für Rudolf Smend zum 70. Geburtstag, 15. Januar 1952, Göttingen 1952. o.A., Speaking of Open Doors, in: The New York Times, 21. Mai 1948. Orthodoxe Bischofskonferenz In Deutschland: A Letter from the Bishops of the Orthodox Church in Germany to Young People concerning Love-Sexuality-Marriage, 12. Dezember 2017, http://www.obkd.de/Texte/Brief%20OBKD%20an%20die%20 Jugend-en.pdf, accessed 02.03.2018. Palmer, Edith: Restrictions on Genetically Modified Organisms: Germany, in: Library of Congress.gov, 31. Maerz 2014, https://www.loc.gov/law/help/restrictions-ongmos/germany.php, accessed 06.04.2017. Passamaneck, S. M. / Finley, M.: Jewish Law Association Studies VII: The Paris Conference Volume, Binghamton 1994. Patterson, Edwin W.: Jurisprudence: Men and Ideas of the Law, Brooklyn 1953. Peek, Lori: Becoming Muslim: The Development of a Religious Identity, in: Sociology of Religion 66/3 (2005), 215–242. Peters, Gerhard / Woolley, John T. (eds.): The American Presidency Project, http:// www.presidency.ucsb.edu. Pew Research Center, Muslim Americans: Middle Class and Mostly Mainstream, 26. Juni 2007, in: Pew Research Center, http://pewforum.org/surveys/muslimamerican/, accessed 24.08.2018. Pew Research Center: Religious Hostilities Reach Six-Year High, 14. Januar 2014, in: Pew Research Center, https://www.pewforum.org/2014/01/14/religious-hostilitiesreach-six-year-high/, accessed 24.08.2018. Pierik, Oland / Werner, Wouter (eds.): Cosmopolitanism in Context: Perspectives from International Law and Political Theory, Cambridge 2010. Podoprigora, Roman: Freedom of Religion and Belief and Discretionary State Approval of Religious Activity, in: Durham, W. Cole, Jr. / Tahzib-Lie, Bahia G. (eds.): Facilitating Freedom of Religion or Belief: A Deskbook, Leiden 2004, 425–440. Pollack, Daniel (ed.): Contrasts in American and Jewish Law, Hoboken 2001. Porter, Stephen: Benevolent Empire? U. S. Power, Humanitarianism, and the World’s Dispossessed, Philadelphia 2017. Porter, Stephen: Benevolent or Fair Superpower?, in: Porter, Stephen: Benevolent Empire? U. S. Power, Humanitarianism, and the World’s Dispossessed, Philadelphia 2017, 101–127. Powell, Milton B. (ed.): The Voluntary Church: Religious Life, 1740–1860, Seen Through the Eyes of European Visitors, New York 1967. Quante, Michael: Einführung in die Allgemeine Ethik, Darmstadt 2013. Reder, Michael: Climate Change and Human Rights, in Edenhofer, Ottmer / Wallacher, Johannes / Lotze-Campen, Hermann / Reder, Michael / K nopf, Brigitte / Müller, Johannes (eds.): Climate Change, Justice and Sustainability: Linking Climate and Development Policy, New York / London 2012, 61–71.

164

Bibliography

Reder, Michael: How Far Can Faith and Reason be Distinguished?, in: Habermas, Jürgen / Reder, Michael / Schmidt, Josef (eds.): Awareness of What is Missing: Faith and Reason in a Post-Secular Age, Cambridge 2010, 36–50. Reder, Michael: On Human Experiences and Cultural Practices. Pragmatism, Democracy, and Religion,” in: Yearbook on Practical Philosophy in Global Perspective 1 (2017), 69–89. Reder, Michael: Religion in säkularer Gesellschaft: Über die neue Aufmerksamkeit für Religion in der politischen Philosophie, Freiburg 2014. Reder, Michael / Köhler, Lukas: Human Rights as a Normative Guideline for Climate Policy, in: Düwell, Markus / Bos, Gunther: Human Rights and Sustainability— Moral Responsibilities for the Future, Oxford 2016, 123–136. Reder, Michael / Müller, Johannes: Cultures and Religions, in: Edenhofer, Ottmer / Wallacher, Johannes / Lotze-Campen, Hermann / Reder, Michael / K nopf, Brigitte / Müller, Johannes (eds.): Climate Change, Justice and Sustainability: Linking Climate and Development Policy, New York / London 2012, 111–118. Reder, Michael / Schmidt, Josef: Habermas and Religion, in: Habermas, Jürgen / Reder, Michael / Schmidt, Josef (eds.): Awareness of What is Missing: Faith and Reason in a Post-Secular Age, Cambridge 2010, 1–14. Reinisch, Jessica / Frank, Matthew (eds.): Refugees in Twentieth-Century Europe: The Forty Years Crisis?, New York 2017. Reiter, Johannes: Menschenwürde als Maßstab, in: Bundeszentrale für politische Bildung (ed.): Aus Politik und Zeitgeschichte 23–24 (2004), https://www.bpb.de/ apuz/28290/menschenwuerde-als-massstab?p=all, accessed 03.07.2019. Richardson, James T. / Edelman, Bryan: Cult Controversies and Legal Developments Concerning New Religious Movements in Japan and China, in: Richardson, James T. (Hg.): Regulating Religion: Case Studies from Around the Globe, New York 2004, 359–380. Richardson, James T. (Hg.): Regulating Religion: Case Studies from Around the Globe, New York 2004. Roeber, A. G.: Orthodox Christians, Human Rights, and the Dignity of the Person: Reflections on Charles Malik (1907–1987), in: Journal of Eastern Christian Studies 70/3–4 (2018), 285–306. Roeber, A. G.: Das Problem der Zwei-Reiche-Lehre in den USA, in: Otte, Hans / Kampmann, J. (ed.): Angewandtes Luthertum? Die Zwei-Reiche-Lehre als theologische Konstruktion in politischen Kontexten des 20. Jahrhunderts, Gütersloh 2017, 348–364. Roeber, A. G.: Review of Makrides, Vasilios N. / Wasmuth, Jennifer / Kube, Stefan (eds.): Christentum und Menschenrechte in Europe. Perspektiven und Debatten in Ost und West, Frankfurt-am-Main 2016, in: Theologische Revue 112/6 (2016): 502–503. Rorty, Richard: Achieving Our Country: Leftist Thought in Twentieth-Century America, Cambridge 1998. Rorty, Richard: Contingency, Irony, and Solidarity, Cambridge 1989. Rorty, Richard: Philosophy as Cultural Politics: Philosophical Papers, Cambridge 2007. Rorty, Richard: Anticlericalism and Atheism, in: Rorty, Richard / Vattimo, Gianni / ​ Zabala, Santiago (eds.): The Future of Religion, New York 2005, 29–42. Rorty, Richard / Vattimo, Gianni / Zabala, Santiago: Dialogue: What is Religion’s Future

Bibliography

165

After Metaphysics?, in: Rorty, Richard / Vattimo, Gianni / Zabala, Santiago (eds.): The Future of Religion, New York 2005, 55–82. Rorty, Richard / Vattimo, Gianni / Zabala, Santiago (eds.): The Future of Religion, New York 2005. Rorty, Richard: Religion as Conversation Stopper, in: Common Knowledge 3/1 (1994), 1–6. Rosen, Michael: Dignity: Its History and Meaning, Cambridge 2012. Rusk, Richard C.: Educational Obligations for Children of Dissolved Marriages, in: Res Gestea 36 (1992): 156–162. Russian Orthodox Church: The Russian Orthodox Church’s Basic Teaching on Human Dignity, Freedom and Rights, 2008, in: The Russian Orthodox Church: Department for External Relations, https://mospat.ru/en/documents/dignity-free​ dom-rights, accessed 03.07.2019. Sarkissian, Ani: The Varieties of Religious Repression: Why Governments Restrict Religion, New York 2015. Schaber, Peter: Menschenwürde: ein für die Medizinethik irrelevanter Begriff?, in: Ethik in der Medizin 24/4 (2012), 20–21. Schaefer, K. A. / u. a.: Unexpected Mutations after CRISPR—Cas9 Editing In Vivo, in: Methods 14/6 (May 2017), 547–548. Schaff, Philip: America: A Sketch of Its Political, Social, and Religious Character, Cambridge 1855. Schüle, Adolf: Demokratie als politische Form und als Lebensform, in: o.A.: Rechtsprobleme in Staat und Kirche: Festschrift für Rudolf Smend zum 70. Geburtstag, 15. Januar 1952, Göttingen 1952, 321–344. Shterin, Marat S. / R ichardson, James T.: Effects of Western Anti-Cult Movement On Development of Laws Concerning Religion in Post-Communist Russia, in: Journal of Church and State 42 (2000), 247–271. Sikkink, Kathryn: Evidence for Hope: Making Human Rights Work in the 21st Century, Princeton / Oxford 2017. Skloot, Rebecca: The Immortal Life of Henrietta Lacks, New York 2010. Slotte, Pamela / Halme-Tuomisaari, Miia (eds.): Revisiting the Origins of Human Rights, Cambridge 2015, 362–380. Souillac, Genevieve: Human Rights in Crisis: The Sacred and the Secular in Contemporary French Thought, Lanham / New York / Oxford 2005. Stearns, Peter N.: Human Rights in World History, New York 2012. Stern, Marc D.: Same-Sex Marriage and the Churches, in Laycock, Douglas / Picarello, Anthony R., Jr. / Wilson, Robin Fretwell (eds.): Same-Sex Marriage and Religious Liberty: Emerging Conflicts, Lanham 2008, 1–57. Stout, Jeffrey: Democracy and Tradition, Princeton 2004. Stout, Jeffrey: Ethics After Babel: The Languages of Morals and their Discontents, Boston 1988. Stout, Jeffrey: Presidential Address: The Folly of Secularism, in: Journal of the American Academy of Religion 76/3 (2008), 533–544. Stout, Jeffrey: Radical Interpretation and Pragmatism: Davidson, Rorty, and Brandom on Truth, in: Frankenberry, Nancy (ed.): Radical Interpretation in Religion, Cambridge 2002, 25–52.

166

Bibliography

Stout, Jeffrey: Rorty on Religion and Politics, in: Auxier, Randall E. / Hahn, Lewis E. (eds.): The Philosophy of Richard Rorty, Chicago 2010, 523–545. Sullivan, Emily: Anti-Semitic Incidents See Largest Single-Year Increase on Record, Audit Finds, in National Public Radio (NPR), 27. Februar 2018, https://www.npr. org/org/sections/thetwo-way/2018/02/27/589119452/anti-semitic-incidents-seelargest-single-year-increase-on-record-audit-finds, accessed 23.03.2018. Svitek, Patrick / Pollock, Cassandra: Religious Leaders Turn to Debate Over Texas “Bathroom Bill”, in: The Texas Tribune, 9. Februar 2017, https://www.texas​ tribune.org/2017/02/09/bathroom-bill-debate-draws-religious-community/, accessed 24.08.2017. Thrush, Glenn: Trump’s New Travel Ban Blocks Migrants From Six Nations, Sparing Iraq, in: The New York Times, 6.  Maerz 2017, https://www.nytimes.com/2017/03/06/ us/politics/travel-ban-muslim-trump.html, accessed 24.08.2018. Tocqueville, Alexis De: Democracy in America, London 1840/2003. Topcu, Canan: Dispute About Prof. Mouhanad Khorchide: a Conflict of Many Layers, in: Qantara.de, 3. Februar 2014, http://en.qantara.de/content/dispute-about-profmouhanad-khorchide, accessed 22.03.2018. Truman, Harry S.: Special Message to the Congress on Admission of Displaced Persons, 7 July 1947, in: Peters, Gerhard / Woolley, John T. (eds.): The American Presidency Project, http://www.presidency.ucsb.edu/ws/?pid=12697, accessed 22.09.2018. Truman, Harry S.: Statement and Directive by the President on Immigration to the United States of Certain Displaced Persons and Refugees in Europe, 22 December 1945, in: Peters, Gerhard / Woolley, John T. (eds.): The American Presidency Project, http://www.presidency.ucsb.edu/ws/?pid=12253, accessed 22.09.2018. Truman, Harry S.: Statement by the President Upon Signing Bill Amending the Displaced Persons Act, 16 June, 1950, in: Peters, Gerhard / Woolley, John T. (eds.): The American Presidency Project, http://www.presidency.ucsb.edu/ws/?pid=13531, accessed 22.09.2018. Truman, Harry S.: Statement by the President Upon Signing the Displaced Persons Act, 25 June 1948, in: Peters, Gerhard / Woolley, John T. (eds.): The American Presidency Project, http://www.presidency.ucsb.edu/ws/?pid=12942, accessed 22.09.2018. Truman, Harry S.: Special Message to the Congress on Aid for Refugees and Displaced Persons, 24 March, 1952, in: Peters, Gerhard / Woolley, John T. (eds.): The American Presidency Project, http://www.presidency.ucsb.edu/ws/?pid=14435, accessed 22.09.2018. United Nations General Assembly: Universal Declaration of Human Rights, 10. Dezember 1948, http://www.un.org/en/documents/udhr/index.shtml, accessed 24.08.2018. United States Conference of Catholic Bishops: Discrimination Against Catholic Adoption Services, in: United States Conference of Catholic Bishops, 2015, http://www. usccb.org/issues-and-action/religious-liberty/discrimination-against-catholicadoption-services.cfm, accessed 24.08.2018. United Nations Human Rights Office of the High Commissioner: Transforming Our World. Human Rights in the 2030 Agenda for Sustainable Development, New York 2015. Van der Ven, Johannes A. (ed.): Empirical Research on Religion and Human Rights, 3 vols., Leiden 2013. Vollman, J. / Winau, R.: The Prussian Regulation of 1900: Early Ethical Standards for

Bibliography

167

Human Experimentation in Germany, in: Ethics and Human Research 18/4 (1996), 9–11. Waever, Ole: Politics, Security, Theory, in: Security Dialogue, 42/4–5 (2011), 465–480. Waever, Ole: Securitization and Desecuritization, in: Lipschutz, Ronnie (ed.): On Security, New York 1995. Walker, Andrew T.: California’s Culture War against Religious Liberty, in: National Review, 9. Juni 2016, https://www.nationalreview.com/2016/06/religious-libertythreatened-california-new-law-gender-identity/, accessed 24.08.2018. Wagner, Hans: Die Würde des Menschen: Wesen und Normfunktion, Würzburg 1992. Wallace, Ruth A. : Religion, Privatization and Maladaptation: A Comment on Niklas Luhmann, in: Sociological Analysis 46/1 (1985), 27–31. Waltman, Jerold L.: Religious Free Exercise and Contemporary American Politics: The Saga of the Religious Land Use and Institutionalized Persons Act of 2000, New York 2011. Waltz, Susan: Reclaiming and Rebuilding the History of the Universal Declaration of Human Rights, in: Third World Quarterly 23 (2002), 437–448. Walzer, Michael: Human Rights in Global Society, in: Internationale Politik—Transatlantic Edition 6/1 (2005), 4–13. Wanner, Catherine: Missionaries of Faith and Culture: Evangelical Encounters in Ukraine, in: Slavic Review 63/4 (2004), 732–755. Weigel, George: The Catholic Journey to Religious Freedom, in: National Review, 20. Dezember 2017, http://www.nationalreview.com/article/454792/george-weigelreligious-freedom-institute-speech, accessed 20.12.2017. Werneke, Thomas: Die Stimme der Vernunft? Menschenrechtssprache als Teil des Politischen während des Ost-West-Konflikts, 1961–1973, Brüssel 2016. Wetz, Franz J.: Texte zur Menschenwürde, Stuttgart 2011. Wildenthal, Lora: The Language of Human Rights in West Germany, Philadelphia 2012. Wils, Sterben: Zur Ethik der Euthanasie, Paderborn / München / Wien / Zürich 1999. Witham, Larry: France Determines Jehovah’s Witnesses Are Not A Religion, in: The Washington Times, 6–12. Juli 2001, p. 21. Witte, John Jr.: The Contributions of Christianity to the Development of Western Rights, in: Witte, John (ed.): Church, State, and Freedom: Toward a New Reformation of Rights (forthcoming). Witte, John Jr.: Introduction, in: Witte, John Jr. / ven der Vyver, Johan D. (eds.): Religious Human Rights in Global Perspective, xvii–xxxv. Witte, John Jr. / ven der Vyver, Johan D. (eds.): Religious Human Rights in Global Perspective, Grand Rapids 1996. Witte, John Jr.: Review of Samuel Moyn, Christian Human Rights (2015), in: Books and Culture 22/2 (2016), 22–24. ­Wittreck, Fabian: Christentum und Menschenrechte, Tübingen 2013. Woloschak, G. E.: Perspectives from the Academy: Being Orthodox and a Scientist, in: Bezzerides, A. M. / Prodromous, E. H. (eds.): Eastern Orthodox Christianity and American Higher Education: Theological, Historical and Contemporary Reflections, Notre Dame 2016, 266–278. Wood, James E., Jr.: Abridging the Free Exercise Clause, in: Journal of Church and State 32/4 (1990), 741–752.

168

Bibliography

Wood, James E., Jr.: The Religious Freedom Restoration Act, in: Journal of Church and State 33/4 (1991), 673–679. Wybraniec, John: The Battle over Religious Freedom: Court Decisions and the Religious Economy in the United States, West Lafayette 1998 (Ph.D. dissertation). Wybraniec, John / Finke, Roger: Religious Regulation and the Courts: The Judiciary’s Changing Role in Protecting Minority Religions from Majoritarian Rule, in: Journal for the Scientific Study of Religion 40 (2001), 427–444. Yang, Fenggang: The Red, Black, and Gray Markets of Religion in China, in: The Sociological Quarterly 47 (2006), 93–122. Yang, Fenggang: Religion in China: Survival and Revival Under Communist Rule, New York 2012. Zacchias, Paulus: Quaestionum medico-legalium opus absolutissimum, Roma 1737. Ziebertz, H.-G. / Döhnert, S. / Unser, A.: Predictors of Attitudes Towards Human Dignity: An Empirical Analysis Among Youth in Germany, in: Ziebertz, H.-G. / Sterkens, C. J. A.: Religion and Civil Human Rights in Empirical Perspective, Heidelberg 2017, 17–60. Ziebertz, H.-G. / Sterkens, C. J. A.: Religion and Civil Human Rights in Empirical Perspective, Heidelberg 2017. Ziebertz, Hans-Georg / Sterkens, Carl / Finke, Roger: Religion and Human Rights, 2 vols., Springer 2017–2018. Ziegler, Mary: Beyond Abortion: Roe v. Wade and the Battle for Privacy, Cambridge, MA / London 2018.

Contributors Carl Bon Tempo is Associate Professor of History at the State University of New York Albany, New York Christof Breitsameter is Professor of Theology, Catholic Theological Faculty, Ludwig-Maximilians-Universität, Munich Michael J. Broyde is Professor of Law at the Emory University School of Law, Atlanta, Georgia. Roger Finke is Professor of Sociology at the Pennsylvania State University, University Park, Pennsylvania Dieter Grimm is a member of the Wissenschafskolleg Berlin and Professor of Law at the Humboldt University Berlin and Yale University, New Haven, Connecticut Dane R. Mataic is Assistant Professor of Sociology at North Dakota State University, Fargo, North Dakota Michael Reder is Professor of Philosophy, Hochschule für Philosophie, Munich. A. G. Roeber is Professor Emeritus of History and Religious Studies, The Penn­ sylvania State University and Professor of Church History, St. Vladimir’s Orthodox Theological Seminary, Yonkers, New York Gayle E. Woloschak is Professor of Radiation Oncology, Northwestern University School of Medicine, Chicago, IL and Adjunct Professor of Religion, Lutheran School of Theology, Chicago Hans-Georg Ziebertz is Professor of Religious Education and Sociology, Julius Maximilian University of Würzburg