Published online by Cambridge University Press: 24 April 2015
The starting points of liberal theorizing are never neutral as between conceptions of the human good; they are always liberal starting points. And the inclusiveness of the debates within liberalism as to the fundamental principles of liberal justice reinforces the view that liberal theory is best understood, not at all as an attempt to find a rationality independent of tradition, but as itself the articulation of an historically developed and developing set of social institutions and forms of activity, that is, as the voice of a tradition. Like other traditions, liberalism has internal to it its own standards of rational justification. Like other traditions, liberalism has its set of authoritative texts and its disputes over their interpretation. Like other traditions, liberalism expresses itself socially through a particular kind of hierarchy.—Alasdair MacIntyre
Liberalism, when applied to the issues of citizenship and community … is caught in a paradox: while it must assume the existence of nation-states in order to have communities within which principles of individual liberty and value neutrality can hold sway, it must at the same time studiously ignore the normative basis of such communities, since to do otherwise would be to admit that nonliberal principles of exclusion and intolerance are fundamental to a liberal state.—Omar Dahbour
The nature and scope of the right to freedom of religion in international law is an increasingly contested and divisive question. While virtually all scholars from an array of traditions insist that the right itself is universal, they assert quite different foundations for and often widely divergent conceptions of that right.
1. MacIntyre, Alasdair, Whose Justice? Which Rationality? 345 (U. Notre Dame Press 1988)Google Scholar.
2. Dahbour, Omar, Illusion of the Peoples: A Critique of National Self-Determination 197 (Lexington Books 2003)Google Scholar.
3. When scholars define the “public sphere” of international law solely in secular rational terms such that the “irrationality” of religion and culture are excluded, reason is said to be constructed as a unitary, closed and homogenous system with fixed boundaries rather than as a “sites of contestation and heterogeneity, of hybridization and cross-fertilization, whose boundaries are inevitably indeterminate.” Lukes, Steven, Liberals and Cannibals: The Implications of Diversity 19 (Verso 2003)Google Scholar (discussing Benhabib's “pluralist” view of culture in Benhabib, Seyla, The Claims of Culture: Equality and Diversity in the Global Era xi (Princeton U. Press 2002))Google Scholar. As T.N. Madan has argued, this marks “the basic flaw of the ideology of secularism … [that claims ] holistic, non-dualistic character, and that the separation of the domains of the sacred and the secular must be acknowledged everywhere in the same manner.” The problem, Madan notes, with “the acceptance of this position is that non-Christian religious traditions either do not make this distinction (e.g., Islam), or do it hierarchically (e.g., Hinduism), subsuming the secular under the sacred.” Madan, T.N., Modern Myths, Locked Minds: Secularism and Fundamentalism in India 15 (Oxford U. Press 1997)Google Scholar.
4. The best exposition of this view is Gadamer, Hans-Georg, Truth and Method (2d ed., Continuum Intl. Publg. Group 1975)Google Scholar. Gadamer challenged the familiar oppositions between reason and tradition, reason and prejudice, and reason and authority. For Gadamer, prejudices are not the remnants of an unenlightened mentality but the very things which both permit and constrain interpretation and understanding. Reason in this sense is historical and “situated,” unable to free itself from historical context and horizons, gaining its distinctive power always within a living and finite tradition—the “lived world” of the individual (which precedes the individual herself). Because any interpreter views his or her object of interpretation both from and within a certain historically-situated “horizon” of expectations, beliefs and practices, understanding or meaning cannot be “objective” in the Cartesian or Enlightenment sense. Id. at ch. 4, 268-306.
5. Bernstein, Richard, Beyond Objectivism and Relativism: Science, Hermeneutics and Praxis 36 (U. Pa. Press 1983)Google Scholar.
6. Pope Benedict XVI has recently stated that the “Enlightenment is of Christian origin and it is no accident that it was born precisely and exclusively in the realm of the Christian faith.” Cardinal Joseph Ratzinger, Lecture, Christianity: “The Religion According to Reason” (Subiaco, Italy, Apr. I, 2005), http://www.zenit.org/article-13705?1=english (accessed Jan. 27, 2008).
7. The idea that metaphysics was a “premise from another source” led to Kant's statement that “he needed to set thinking aside in order to make room for his faith.” The result was that he “anchored faith exclusively in practical reason, denying it access to reality as a whole.” Pope Benedict XVI, Lecture, Faith, Reason and the University: Memories and Reflections, University of Regensburg, Sept. 12, 2006.
8. This has had two side-effects: (a) “only the kind of certainty resulting from the interplay of mathematical and empirical elements can be considered scientific”; and (b) “by its very nature this method excludes the question of God, making it appear an unscientific or pre-scientific question … [resulting in] a reduction of the radius of science and reason.” Not only does such a view “end up reducing Christianity to a mere fragment of its former self,” but
if science as a whole is this and this alone, then it is man himself who ends up being reduced, for the specifically human questions about our origin and destiny, the questions raised by religion and ethics, then have no place within the purview of collective reason as defined by “science”, so understood, and must be relegated to the realm of the subjective. The subject then decides on the basis of his experiences, what he considers tenable in matters of religion, and the subjective “conscience” becomes the sole arbiter of what is ethical. In this way, though, ethics and religion lose their power to create a community and become a completely personal matter. This is a dangerous state of affairs for humanity …. Id.
9. Thus, it is asserted that the “synthesis with Hellenism achieved in the early Church was a preliminary inculturation which ought not to be binding on other cultures.” This is false because “the fundamental decisions about the relationship between faith and the use of human reason are part of the faith itself; they are developments consonant with the nature of faith itself.” Id.
11. Such a conception of reason has two fatal disabilities underlying its rationality: first, it is “deaf to the divine,” and having relegated religion into the “realm of subcultures,” it is unable of “entering into a dialogue of cultures.” Second, “with its intrinsically Platonic element, [it] bears within itself a question which points beyond itself and beyond the possibilities of its methodology.” Pope Benedict XIV, Faith, Reason, supra n. 7. Interestingly, similar arguments have been made by leaders from other religious traditions. For example the former Iranian president, Mohammad Khatami, has criticized the inability of the West to engage in a “dialogue of civilizations.” During the recent Muhammad cartoons controversy, Khatami stated that “defining the question as one of freedom [of expression] amounted to brushing aside the sacred dignity that stands at the core of any religion.” Vick, Karl, Iran's Khatami Says Islam is the Enemy West Needs, Wash. Post A17 (03 5, 2006)Google Scholar.
12. Othman, Norani, Grounding Human Rights Arguments in Non-Western Culture: Shari'a and the Citizenship Rights of Women in a Modern Islamic State, in The East Asian Challenge for Human Rights 169 (Bauer, Joanne R. & Bell, Daniel A. eds., Cambridge U. Press 1999)Google Scholar. Certain Asian theorists, for example, today address the question of how to “transform Confucian Virtues into Human Rights.” See Cheng, Chung-ying, Transforming Confucian Virtues into Human Rights: A Study of Human Agency and Potency in Confucian Ethics, in Confucianism and Human Rights 142 (de Bary, Wm. Theodore & Weiming, Tu eds., Colum. U. Press 1999)Google Scholar. For an excellent discussion of the relationship between human rights and cultural diversity, see Charles Taylor, Conditions of an Unforced Consensus on Human Rights, in The East Asian Challenge for Human Rights, supra at 124; Taylor, Charles, Modes of Secularism, in Secularism and its Critics 33 (Bhargava, Rajeev ed., Oxford U. Press 1998)Google Scholar [hereinafter Taylor, Modes of Secularism].
13. In the second Meditation, Descartes stated that
Archimedes, in order that he might draw the terrestial globe out of its place, and transport it elsewhere, demanded only that one point should be fixed and immoveable; in the same way I shall have the right to conceive high hopes if I am happy enough to discover one thing only which is certain and indubitable.
Descartes, René, Meditations, in Philosophical Work of Descartes vol. 1, 198–199 (Haldane, Elizabeth & Ross, G.R.T. trans., Cambridge U. Press 1969)Google Scholar.
14. Bernstein, Beyond Objectivism, supra n. 5, at 18.
15. Koskenniemi, Martti, From Apology to Utopia: The Structure of International Legal Argument 52 (Cambridge U. Press 1989)Google Scholar.
16. MacIntyre, Whose Justice?, supra n. 1, at 6.
17. See Kennedy, David, Theses about International Law Discourse, 23 German Y.B. Intl. L. 353, 364 (1980)Google Scholar.
18. The example given by Waldron involves a conflict between the rights claims of an entrepreneurial pornographer (P) who enjoys the public sale and display of his pornographic wares, and a devout Muslim (Q) who abhors pornography and, according to the dictates of his religious beliefs, wishes to live and raise his family in a society free of the public displays of P. In the course of an extensive analysis, Waldron demonstrates how this example poses severe difficulties for any Kantian algebraic liberalism and its twin requirements of compossibility and adequacy which seek to secure order in a way that is fair to the aims and activities of all. I.e. the Kantian objective may be stated as follows: “Act externally in such a way that the free use of your will is compatible with the freedom of everyone according to a universal law.” Thus:
the liberal claim “may be described as the task of specifying a set of constraints on conduct (call it set C), satisfying two conditions: (1) no two actions permitted by C conflict with one another; and (2) for each individual who is subject to C, the range of actions permitted by C is adequate for the pursuit of his ends. I shall call these the requirements of compossibility and adequacy. Together they amount to something like algebraic specifications for the formal structure of a liberal society.
Waldron, Jeremy, Toleration and Reasonableness, in The Culture of Toleration in Diverse Societies: Reasonable Tolerance 14–15 (McKinnon, Catriona & Castiglione, Dario eds., Manchester U. Press 2003)Google Scholar.
19. Id. at 29-30.
20. Cover, Robert, The Supreme Court, 1982 Term—Foreword: Nomos and Narrative, in Narrative, Violence and the Law: The Essays of Robert Cover 95 (Minow, Marthaet al. eds., U. Mich. Press 1993)Google Scholar (originally published in 97 Harv. L. Rev. 4 (1983)).
21. Bob Jones U. v. U.S., 103 S. Ct. 2017 (1983) (raising the question whether a religious school discriminating on the basis of race could be denied tax-exempt status by the IRS).
22. In the “paideic” world of the nomos, law is a resource in the larger effort of a community to endow life with meaning. As an ideal-type, it suggests: “(1) a common body of precept and narrative, (2) a common and personal way of being educated into this corpus, and (3) a sense of direction or growth that is constituted as the individual and his community work out the implications of their law.” This is a vision of a “strong community of common obligations” characteristic, for example, of Talmudic law and Christian conceptions of the Church where reciprocal obligations flow from commitment, not coercion, because people recognize the needs of others and respond to them. Cover, The Supreme Court, supra n. 20, at 105-106.
23. In what Cover refers to as the “imperial” legal order of the state, norms are “universal and enforced by institutions” in the interest of social order and discourse is “premised on objectivity—upon that which is external to the discourse itself.” This finds its fullest expression in the civil community where “[i]nterpersonal commitments are weak, premised only on a minimalist obligation to refrain from the coercion and violence that would make impossible the objective mode of discourse and the impartial and neutral application of norms.” Id. at 106.
24. Id. at 107-108.
25. Id. at 109.
27. Id. (emphasis added).
28. Id. 110.
29. A useful illustration of this dynamic is the Shah Bano case in India: Mohamed Ahmed Khan v. Shah Bano Begum (1985) 3 S.C.R. 844. If under the principle of nondiscrimination the state does not recognize sub-statist nomoi as legal subjects with the group-differentiated right to their own nomos, then it will apply its own moral conception of norms directly to members of that group without intersubjectively mediating its interpretation of those norms with the ethical conception offered by the minority nomos.
30. Liberal nationalists recognize the ambivalence and, in general, silence of liberal theory towards the claims of majority and minority groups and have sought in response to find pathways by which to combine (liberal) individualist and (pluralist) group doctrines. Three positions, in particular, have been advanced. The first, most commonly associated with the work of Joseph Raz, Avishai Margalit and Yael Tamir, has been to draw a connection between individual liberty and the need for a collective cultural life which is said to be possible only in a nation-state. See e.g. Tamir, Yael, Liberal Nationalism (Princeton U. Press 1993)Google Scholar; Margalit, Avishai & Raz, Joseph, National Self-Determination, 87 J. Phil. 439 (1990)CrossRefGoogle Scholar. The second approach has been to try to link democratic consent theory to national self-determination. See e.g. Beran, Harry, Self-Determination: A Philosophical Perspective, in Self-Determination in the Commonwealth (Macartney, W.J. Allan ed., Aberdeen U. Press 1988)Google Scholar. The third approach, often associated with the work of Michael Walzer, has been to view national self-determination not within an essentially individualistic conception of political legitimacy, but within a communitarian conception. See e.g. Walzer, Michael, The Communitarian Critique of Liberalism, 18 Pol. Theory 6, 21 (1990)CrossRefGoogle Scholar.
31. This is not to say, of course, that such states were entirely religiously and culturally homogenous. In Great Britain, for example, religious diversity (mainly within Christianity) became an important factor from the seventeenth century onward, and the France of the ancien regime cannot be said to have been completely culturally homogenous. The more general point is that this diversity, to the extent that it existed, did so within the context of broadly Christian emergent European nation-states.
32. Muthu's work seeks to “pluralize” our understanding of the Enlightenment through exploration of the anti-imperial political thought of philosophers such as Diderot, Kant and Herder. See Muthu, Sankar, Enlightenment Against Empire (Princeton U. Press 2003)Google Scholar.
33. In this respect, the logic of the argument I am advancing is similar to the critiques of formal equality advanced by critical legal scholars. Let us return, for example, to Waldron's example discussed above of the two-subject case of P and Q where
the rights claimed by P, as necessary for the pursuit of his aims, may be different from the rights claimed by Q, as necessary for the pursuit of hers. Of course, the rights claimed by P will be correlative to duties imposed on Q and vice versa. But although P's rights are correlative to Q's duties, and P's duties correlative to Q's rights, P cannot simply take the set of rights he has and the set of duties he has and, replacing proper names with variables, regard them as correlative. He is therefore no longer able to work out what duties he has simply by considering what would be correlative to the rights he claims. He must really pay attention to the situation and needs of the other person, Q, because these may differ significantly from anything he can extrapolate from his own case, or any understanding of what he would demand if we were standing in their shoes.
Waldron, Toleration and Reasonableness, supra n. 18, at 35 n. 10. (emphasis added). If we substitute “European states” for P and “non-European peoples” for Q, the argument is the same. An abstract conception of universal liberty (i.e., the universal proposition that “everyone is to have whatever is necessary for the pursuit of his or her own good”) will not entail equal or uniform rights of differently-situated subjects at a more concrete level. As difference theorists have argued, this requires a conception of justice that pays great attention to the concrete and the particular and emphasizes context-sensitive judgments regarding claims of culture and identity arising from different conceptions of the good.
34. See Danchin, Peter G., Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law, 33 Yale J. Intl. L. 1 (2008)Google Scholar.
35. Muthu, Enlightenment Against Empire, supra n. 32, at 273.
36. Id. at 275. As Muthu states, under “conditions of incommensurability, one can at best draw upon partial, incomplete, and plural standards, since there is no single norm, principle, or value with which they can be compared and judged.” Id.
37. Id. at 274.
38. To view human beings as fundamentally cultural agents “acknowledges their status as artful, reasoned and free individuals who are partly shaped by their social and cultural contexts, yet who also through their actions and through changing perceptions alter such contexts themselves.” Id. at 274. Here again we see a reflection of Cover's idea of the logic underlying the transformative structure of legal argument itself: that there is an ineliminably intersubjective and symbiotic relationship between human freedom and rational autonomy on the one hand, and human paideic social and cultural contexts on the other.
39. MacIntyre, Whose Justice?, supra n. 1, at 345.
41. Koskenniemi, From Apology to Utopia, supra n. 15, at ch. 2.
42. Id. at 73, 84.
43. Id. at 84.
44. Koskenniemi describes the main features of international law in medieval thought as follows:
“[O]rder” was a natural state of affairs, existing by the force of creation and discoverable in the natural arrangement of things and men through faith or recta ratio. If doubt arose, it could always be dismissed by appeal to the Church's or the Emperor's authority. Behind this authority stood the Christian idea of a Civitas maxima which both legitimized and constitutionalized it. Different institutions exercised powers in a system of mutual control, each submitted to legitimation proceeding “downwards” from the highest commands of divine law. Political order participated in the general arrangement of things in nature as well as in society, not yet differentiated from each other. It was visible in the hierarchical systems of loyalty between levels of society, accompanied by oaths of allegiance the network of which was sanctioned by Christian ideas of justice.
Id. at 56-57.
45. The original phrase is “etiamsi Deus non daretur”: “What we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God….” See Grotius, Hugo, De Jure Belli ac Pads, Libri Tres, vol. 1, Prolegomena § 11, at 13 (Kelsey, Francis W. trans., Classics Intl. L. No. 3, Clarendon Press 1925)Google Scholar. Grotius can be seen here to be building up his account of natural law layer by layer through notions such as mutual sociability and mutual aid. While he could get this far without God, Grotius did, however, hold to God's existence and repeatedly asserted that the law's ultimate source is divine will and that this basis was necessary for a complete theory of the natural law. He thus immediately follows the above passage in the Prolegomena by saying that:
Hence it follows that we must without exception render obedience to God as our Creator, to Whom we owe all that we are and have; especially since, in manifold ways, He has shown Himself supremely good and supremely powerful, so that to those who obey Him He is able to give supremely great rewards, even rewards that are eternal, since He Himself is eternal. We ought, moreover, to believe that He has willed to give rewards, and all the more should we cherish such a belief if He has so promised in plain words; that He has done this, we Christians believe, convinced by the indubitable assurance of testimonies.
46. Koskenniemi argues that “faith” and “reason” are not fundamentally different categories in the pre-classical lawyer's argument. The authority of norms or the legality of actions are decided by looking at the standard's content to see whether it reproduces the demands of faith or reason, not by having recourse to independent legislative authority. Whether the argument refers to God or nature is immaterial to the argumentative structure:
The faith which links normative conclusions to God and the reason which links them to nature act in a similar fashion. Both assume that obligation is something transcendental and discoverable in immediate reflexion or deduction from first principles. In fact, keeping the two apart seems both difficult and, for the conclusions reached, irrelevant. In one way or another, natural law becomes derivation of divine law while the content of the latter makes itself known in the former. Both take argumentative positions in contrast to non-normative, arbitrary will.
Koskenniemi, Apology to Utopia, supra n. 15, at 75.
47. Thus, the “unity of law and morality is the unity of reason (or revelation) and right will.” For Grotius, natural law may be discovered by a priori reasoning as well as a posteriori evidence. Its deduction from first principles is just as “objective” as drawing inferences about it from sovereign behavior. This is natural as the sovereign is merely an agent of the normative order.”
Id. at 76-77.
48. Thus, the “problem of indeterminacy of legal rules is located at the realm of faith and solved by recourse to authority. Only when the sense of disparity between the normative outcomes and the perceived reality became too great, faith could be questioned and a transition to classical discourse could take place.” Id. at 73-74. While a consensus gentium, or custom, may be evidence of rules, it has no independent authority and cannot be law simply by consensus. The authority of all law proper, or ius gentium, (whether divine, natural, human, or international) derives from the same source: an immanent divine order. “The possibility of conflict is defined away: all law stems from the same source. By definition, then, human law cannot enter into conflict with natural law because if it entered, it would not be ‘law.’ Ius gentium is proper law, not contract, and therefore not binding simply because willed.” Id. at 77.
49. Id. at 192. Thus, the
Prince's will has no independent authority following from the “inside” of his postulated freedom, no “reserved domain” which would emerge in contrast or conflict to the normative order. His authority is delegated competence, constantly controlled by the normative order. The Prince is an agent of the normative order.
Id. at 76.
50. See Francisco Vitoria, De Indis et de lure Belli Relectiones, 1696, § I, 120-122 (John Pawley Bate trans., Classics of Intl. L., no. 7, Carnegie Instn. 1917); Grotius, De Jure Belli ac Pads, supra n. 45, Prolegomena § 16, 15; Id., bk. I, ch. I, § X, at 38-39. The ius gentium of early international lawyers was, in this respect, “not so much international as inter-individual law, applicable on a universal scale.” Koskenniemi, Apology to Utopia, supra n. 15, at 76 n. 95. The liberal distinction between the public and the private was thus completely absent.
There was no individual freedom, no private realm which would have independent legitimacy as against the world at large. If there was freedom, it was allocated from above and retrievable at any time. It was not a personal “right” but rather a competence or an authorization to do what was necessary.
51. Vitoria, De Indis, supra n. 50, § I, 116, 120-128. As God had given territory to Indians, he thereby “established their legitimate authority” and any claims to interfere with it, including those of the Pope and the Emperor, were invalid ab initio, id. § II, 129-139.
52. Koskenniemi, Apology to Utopia, supra n. 15, at 79.
53. Id. at 78. See generally Vitoria, De Indis, supra n. 50, Second relectio, § 26-31, at 174-177. Note that while Vitoria believed that difference of religion was not a cause of just war, he did believe that Christians had a right to preach the Gospel to unbelievers, a right which included using the means of war. Interestingly, he also argued that war and the imposition of new rulers were justified to stop native rulers from enforcing human sacrifices or engaging in cannibalism. Evans regards this as a “move away from the medieval idea of a theological just war concept and a move towards a secular concept based upon natural law.” Evans, Malcolm, Religious Liberty and International Law in Europe 33 (Cambridge U. Press 1997)CrossRefGoogle Scholar.
54. Note also Suárez's asymmetrical sovereign right of intervention:
If an infidel Prince prevents his population from being converted to Christianity, any Christian sovereign may intervene. But an infidel Prince may not intervene if the Christian sovereign does not allow his subjects to be converted into heretics. Proof of this is that to prevent Christ's law from being accepted does irreparable harm while prevention [of] other law's acceptance does not.
Koskenniemi, Apology to Utopia, supra n. 15, at 79 (quoting Suárez, Francisco S.J., De Triplici Virtute Theologica, Fide, Spe et Charitate, 1621, Classics Intl. L. vol. II, no. 20 (1944) § V, at 826–827Google Scholar). See further Doyle, John P., Francisco Suárez on The Law of Nations, in Religion and International Law 103–120 (Janis, Mark W. & Evans, Carolyn eds., Martinus Nijhoff Publishers 1999)Google Scholar.
55. As Janis observes, “[i]n modern times, only the 20th century begins to rival the 17th in terms of its bloodshed. In the largely Germanic territories of the Holy Roman Empire, ‘the carnage and desolation were probably greater than men had ever wrought in one generation in any land before.’” Mark W. Janis, Religion and the Literature of International Law: Some Standard Texts, in Religion and International Law, supra n. 54, at 121, 122 (quoting Will, & Durant, Ariel, The Age of Reason Begins 567 (Simon, & Schuster, 1961))Google Scholar.
56. For the early lawyers, war was not a conflict between legitimate sovereigns but a public procedure against a wrong-doer. There was thus no conflict or symmetry between sovereignties and a war could not be objectively just on both sides. If a sovereign erred in making his judgment, however, he could be excused. This did not change the nature of the war as a public procedure but it absolved the sovereign who had no just cause and allowed him to remain sovereign. Vitoria, De Indis, supra n. 50, Second relectio, § 32, at 177; Suárez, De Triplici, supra n. 54, § VI, at 828-830; Grotius, De Jure Belli, supra n. 45, bk. II, ch. XXIII, at 565-566.
57. As Janis notes, this move represents Grotius's attempt to overcome the cynicism of the philosophy of Euphemus that “in the case of a king or imperial city nothing is unjust which is expedient.” Grotius, De Jure Belli, supra n. 45, Prolegomena, § III. Janis, Religion and Literature, supra n. 55, at 123.
58. Grotius, De Jure Belli, supra n. 45, bk. III, ch. IV, at 641 ff.
59. Koskenniemi, Apology to Utopia, supra n. 15, at 82 (citing Grotius, De Jure Belli, supra n. 45, bk. II, ch. XXIII, § II, 558; bk. Ill, ch. IV, § IV, at 644).
60. de Visscher, Charles, Theory and Reality in Public International Law 13 (Corbett, P.E. trans., rev. ed., Princeton U. Press 1968)CrossRefGoogle Scholar. This same shift can be seen in the writings of Alberico Gentili (1552-1608), a Protestant jurist who rejected the claim that differences of religion could justify wars between States and who even called for the toleration of religious differences within States. As Evans notes, however, in the
Reformation and the wars of religion that it spawned, this was more of a plea than an observation. Nevertheless this marks the beginning of a shift in perspective. The decay of the concept of empire and papacy as forces uniting Christendom is reflected in the separation of temporal and spiritual power. In doing so, Gentili prefigured the emergence of the secularized society of nations.
Evans, Religious Liberty, supra n. 53, at 37.
61. Taylor, Modes of Secularism, supra n. 12, at 31, 33 (arguing that Pufendorf and Locke offered versions of Natural Law of this kind).
62. Janis, Religion and Literature, supra n. 55, at 123, 125. In this way, his legal principles were “especially valuable in an age when Europeans were seeking ways to legitimate and structure a society where competing religious and political institutions needed to coexist.” Id. at 126.
63. Id. at 125. Evans, however, argues that it
may be doubted whether [Grotius] could have accepted the justness of a war waged by non-Christians against Christians who had acted with similar “cruelty” towards them. Indeed, he claimed that there was a duty of Christian States to protect themselves against the enemies of Christianity. Whilst it might be true that Grotius advocated “peaceful co-existence” with non-believers, this did not imply equality, or even toleration.
Evans, Religious Liberty, supra n. 53, at 40-41. But cf. Nussbaum, Arthur, A Concise History of the Law of Nations 110 (Macmillan Co. 1954)Google Scholar (arguing that “[i]n fact, tolerance is the outstanding feature of Grotius' work”).
64. This approach “asks us to abstract from these deeper or higher beliefs altogether for purposes of political morality” in search of a common basis for peaceful and equitable coexistence that lies “in a protected area, immune from all these warring beliefs” and which “on its own can be shown to be so compelling, that it will command our political allegiance.” Taylor, Modes of Secularism, supra n. 61, at 33-34.
65. Id. at 33-34 (noting that Grotius derived the principle pacta sunt servanda from the axioms that humans are both rational and sociable creatures and that, even if God didn't exist—etiamsi Deus non daretur—these norms would be binding on us).
66. Tuck suggests that Grotius advanced a theory of justice that was “avowedly Aristotelian and accommodated to the assumptions of Protestant political thinkers.” Its basic premise was that
“what God has shown to be his will, that is law”—Grotius could not yet disengage himself from the divine voluntarism inevitably associated with Protestantism. But he explained what God wants in terms of man's innate sociability, to which all further natural laws were to be related, and in that explanation we can see the first indications of what was to be his eventual untheistic theory, with man's sociability becoming the sole premiss.
Tuck, Natural Rights Theories, supra n. 50, at 59-60 (citations omitted).
67. Nussbaum, A Concise History, supra n. 63, at 109.
68. Tuck, Natural Rights Theories, supra n. 50, at 72-73. The claim that sociability necessitates respect for individual rights thus “stressed individuality in the area of rights, but communality in the area of obligation.” Tuck sees this as resting on a “psychological implausibility” which would be the dominant point of contention during the next fifty years of debate: i.e., “does a natural rights theory require a strongly individualistic psychology and ethical theory?” Id. at 82.
69. “Given the natural facts about men, the laws of nature followed by (allegedly) strict entailment without any mediating premisses about God's will (though his will might still be an explanation of those natural facts).” Id. at 76-77.
70. Id. at 80.
71. See Mill, John Stuart, Considerations on Representative Government, in Utilitarianism, Liberty, Representative Government 230, 233 (Acton, H.B. ed., Adamant Media Corp. 1972) (originally published in 1863)Google Scholar.
72. This problem manifests itself in two ways. First, liberalism lacks a theory of citizenship and thus provides “no theory of whom we feel responsibility for and whom we can ignore.” The prior existence of a territorial state with a limited citizenry is thus taken for granted as the context in which liberties are to be secured. Second, liberalism lacks an account of “social goods”—those that can only be attained through the cooperation of many individuals. This means that liberal theory can “give reasons for asserting rights, but rarely and with difficulty reasons for individuals to assume duties.” Dahbour, Illusion of the Peoples, supra n. 2, at 196.
74. Tamir has argued that “liberals have no choice but to presuppose the existence of [communal] ties and ‘treat community as prior to justice and fairness in the sense that questions of justice and fairness are regarded as questions of what would be fair or just within a particular political community.’” Tamir, Yael, Liberal Nationalism 118 (Princeton U. Press 1993)Google Scholar (quoting Dworkin, Ronald, Law's Empire (Harv. U. Press 1986)Google Scholar). For Tamir, the dependence of liberalism on nationalism has two components: (1) the assumption of membership in a nation-state that generates a culture of “belonging,” and therefore of individuals' obligation to the state, and (2) the limitation of principles of distributive justice to application within a nation-state, without considering whether such principles should be applied beyond the boundaries of that state. Dahbour, Illusion of the Peoples, supra n. 2, at 196.
75. The distinction in the literature on nationalism between territorial-civic and ethnocultural nationalism involves a confusing mix of geographical, sociological, judgmental and normative parameters. For Hans Kohn, the distinction involved two models within Europe (statist, territorial-civic nationalism describing the “advanced” countries of the West such as England, the U.S. and France; ethnocultural nationalism describing the “less advanced” countries in Central and Eastern Europe such as Germany, Italy and Spain—but also Ireland). See Kohn, Hans, Nationalism: Its Meaning and History 29–30 (Von Nostrand 1955)Google Scholar. There is the further question whether nationalism in either of these two guises is problematic as applied to non-Western (i.e., non-European) societies. For discussion on these issues (which are beyond the scope of this analysis), see Gans, Chaim, The Limits of Nationalism 7–38 (Cambridge U. Press 2003)CrossRefGoogle Scholar.
76. Noting that there were “nations long before nationalism,” Yack suggests that
[b]y encouraging us to think of political community as distinct from and prior to the establishment of political authority, the liberal conception of popular sovereignty thus brings our image of political community much closer to national community than it had been in the past.
Yack, Bernard, Nationalism, Popular Sovereignty, and the Liberal Democratic State, in The Nation-State in Question 39–40 (Paul, T.V.et al. eds., Princeton U. Press 2003) (emphasis added)Google Scholar.
77. Marx, Anthony W., Faith in Nation: Exclusionary Origins of Nationalism vii (Oxford U. Press 2003)Google Scholar.
78. Of course, it is important not to over generalize or essentialize this point. In Germany, for example, the cuius regio, eius religio principle led to complex processes of consolidation and fragmentation along religious lines.
79. Id. at 36. As Gorski writes, both church and state constructed new mechanisms of moral regulation (for example, inquisitions, visitations, consistories) and social control (for example, schools, poorhouses, hospitals). Neither purely religious nor strictly political, these institutions were rather res mixtae in which church and state interpenetrated one another to varying degrees. Nonetheless, these institutions could be and eventually were absorbed and appropriated by the state. Confessionalism thus forged a new “infrastructure of power,” by which the state began to effectively penetrate social life for the first time.
Gorski, Philip, Calvinism and State-Formation in Early Modern Europe, in State/Culture: State Formation after the Cultural Turn 147, 149 (Steinmetz, George ed., Cornell U. Press 1999)Google Scholar (n. & citation omitted).
80. Gorski, Calvinism and State-Formation, supra n. 79, at 170. As Kohn observes, England became the “new Israel” while, building on faith, “France, the devoted daughter of the Catholic Church, graduated to become the mother of her people.” Kohn, Nationalism, supra n. 75, at 11, 16. See further Marx, Faith in Nation, supra n. 77, at 37.
81. Elliott notes that the accommodation of the Moors largely disappeared when “the fall of Constantinople in 1453 revived the crusading enthusiasm of Christendom,” provoking a renewal of efforts at “reconquista” at least of Iberia from the Moors. Elliott, John, Imperial Spain, 1469-1716, at 34, 46–50 (Penguin 1963)Google Scholar. See Marx, Faith in Nation, supra n. 77, at 41-44.
82. Elliott, Imperial Spain, supra n. 81, at 126.
83. Marx, Faith in Nation, supra n. 77, at 46.
84. See e.g. the Edict of Saint-Germain of 17 January 1562, which suspended and superseded prohibitions and punishments in relation to the Huguenots for “preaching, prayers and other practices of their religion.” The French Wars of Religion: Selected Documents 31–32 (Potter, David ed., Palgrave Macmillan 1997)CrossRefGoogle Scholar.
85. Marx, Faith in Nation, supra n. 77, at 56.
86. Id. at 58.
87. Id. at 62.
88. Id. at 65.
89. These points are especially pertinent to the cosmopolitan history of Catholicism. On the first point, it should be noted that Henry VII engaged in the building of the English administrative state without excessive reliance on religious forces. On the second point, it should further be noted that the expulsion of the Jews from England in the twelfth and thirteenth centuries is generally regarded as being unrelated to the founding of the English nation (and thus may be more coincidental than an essential causal factor upon which nation-building depended.) I am grateful to Jeremy Waldron for discussion on these points.
90. Marx, Faith in Nation, supra n. 77, at 41, 54-55, 66.
91. Referring to the French Revolution, nationalism is described by Kohn as an “inclusive and liberating force” and one that “preserved pluralism … (and) political liberalism.” Kohn, Hans, The Idea of Nationalism 3–4 (Macmillan 1944)Google Scholar. As regards England, parliamentary rule is described by Haas as establishing “personal liberty with lessons learned about the need for religious toleration.” Haas, Ernst B., Nationalism, Liberalism and Progress: Volume 1, The Rise and Decline of Nationalism 68 (Cornell U. Press 1997)Google Scholar.
92. The link between national cohesion and liberal democracy is well-established. Rustow, for example, argues that democratization requires a “single background condition—national unity …. [T]he vast majority of citizens in a democracy-to-be must have no doubt… as to which political community they belong …. ‘[T]he people cannot decide [for democracy] until somebody decides who are the people.’” Dankwart A. Rustow, Transitions to Democracy: Toward a Dynamic Model, 2 Comp. Pol. 337, 350-351 (1970) (quoting Jennings, Approach to Self-Government, supra n. 73, at 56).
93. As Van Kley observes, “if, as seems plausible, there exists some kind of law of the conservation of the sacred, then the price paid for the desacralization of the remaining symbols of transcendence was an ideological resacralization of a ‘regenerated’ body of the politic—the nation, the partrie, the people.” Van Kley, Dale K., The Religious Origins of the French Revolution 367 (Yale U. Press 1996)Google Scholar. The official separation of religious belief from secular nationalism has been regarded as one of the reasons it took post-revolutionary France so long to be represented by a stable democratic order.
94. In 1794, the Jacobins began a campaign against patois and in favor of the increased use of French to unify the people against linguistic and other differences. See Bell, David A., Lingua Populi, Lingua Dei: Language, Religion, and the Origins of French Revolutionary Nationalism, 100 Am. Hist. Rev. 1403, 1419 (1995)CrossRefGoogle Scholar. In 1792, émigré nobles were said to be traitors and the next year all foreign-born citizens were stripped of their rights by the Committee on Public Safety. Marx, Faith in Nation, supra n. 77, at 172.
95. See generally Brubaker, Rogers, Citizenship and Nationhood in France and Germany (Howard U. Press 1992)Google Scholar.
96. There is no (or little) mention of Christian teachings or religious toleration, for example, in the Second Treatise. Locke here was grappling with and primarily concerned about the sovereign legitimacy of states (plural) and the consequences of imperialism among other things. Waldron suggests that the Second Treatise is an attempt to “‘understand Political Power’ and distinguish it from other forms of power.” See Waldron, Jeremy, God, Locke and Equality: Christian Foundations in Locke's Political Thought 207 (Cambridge U. Press 2002)CrossRefGoogle Scholar. Thus, Locke's reading of St. Paul's teaching in Romans “does not entail that existing political authority is to be treated as legitimate”
Whether the powers that be are exercising legitimate authority, and consequently whether we ought to obey them, is something that our Christian faith gives us no particular basis for examining. We must examine it using other resources—like ordinary reason, as encapsulated in good political theory. If reason shows that some de facto ruler is not exercising legitimate authority, then Romans 13 gives the ruler no support. But if reason shows that a de facto ruler is exercising legitimate authority, then the fact that some of his subjects are Christians (while the ruler perhaps is not) does not detract from his authority.
Id. at 196-197. Here we can see the ascending-descending nature of Locke's political theory. It is not that God and theology are irrelevant to the question of political authority (for while governments are chosen and appointed by ordinary consenting people, the authority of people to do so itself derives from God). Rather, as Waldron concludes, “Romans 13 is to be read in the light of Locke's theoretical (indeed his contractarian) argument, rather than the other way around.” Id. at 196-197.
97. Id. at 212 (citing Locke, John, A Letter Concerning Toleration 26, 28 (Tully, James ed., Kessinger Publg. 1983)) (alteration in original)Google Scholar.
98. See id. at 213.
99. Id. at 214.
100. The starting point in Locke's conception of political authority is ascension from individual consent. The descending part is to be found in his natural law theory which, Locke himself would later say in The Reasonableness of Christianity has nowhere been better expounded than in Christianity. See id. at 207. For Waldron's analysis of the apparent dissonance between the “lack of Gospel-based argument” in the Second Treatise and the pessimism in the Reasonableness about a “systematic and compelling exposition of the natural law, even in the post-Christian era, except on the basis of the teachings of Christ.” See id. at 207-216.
101 . Id. at 221 (citing Locke, Letter, supra n. 97, at 50).
102. Locke, Letter, supra n. 97, at 25.
103. Marx, Faith in Nation, supra n. 77, at 179. For discussion on Locke's views of toleration among Protestants, see Mendus, Susan & Horton, John, Locke and Toleration, in John Locke: A Letter Concerning Toleration in Focus 1 (Horton, John & Mendus, Susan eds., Routledge 1991)Google Scholar.
104. In relation to Roman Catholics, Locke states that
the Magistrate ought not to forbid the Preaching or Professing of Any Speculative Opinions in any Church because they have no manner of relation to the Civil Rights of the Subjects. If a Roman Catholick believe that to be really the Body of Christ, which another man calls Bread, he does no injury thereby to his Neighbor.
Locke, Letter, supra n. 97, at 46. As Waldron observes, when “Locke sums up his position on toleration at the end of the Letter—“The Sum of all we drive at is, That every Man may enjoy the same Rights that are granted to others”—we find that Rome is included effortlessly along with Geneva.” See Waldron, God, Locke and Equality, supra n. 96, at 218-220. The same is true in the later Letters. Throughout, Locke insists that “neither pagan nor Mahometan, nor Jew, ought to be excluded from the civil rights of the commonwealth because of his religion.” Locke, Letter, supra n. 97, at 56.
105. Locke, Letter, supra n. 97, at 50. In another passage on the same page, Locke refers to Muslims in the same vein:
It is ridiculous for anyone to profess himself to be a Mahumetan only in his Religion, but in every thing else a faithful Subject to a Christian Magistrate, whilst at the same time he acknowledges himself bound to yield blind obedience to the Mufti of Constantinople; who himself is intirely obedient to the Ottoman Emperor, and frames the feigned Oracles of that Religion according to his pleasure.
106. See supra text accompanying n. 101. Waldron suggests, however, that Locke is careful to “characterize these views in general terms, so that their link with Rome or with any particular religious sect is understood as contingent rather than necessary.” Waldron, God, Locke and Equality, supra n. 96, at 222.
107. Locke, Letter, supra n. 97, at 49.
108. Waldron, God, Locke and Equality, supra n. 96, at 223.
109. For example, in the first reason above for excluding Catholics on the basis of doctrines enshrining Roman Catholic privileges, Locke appears to assume that there must be “one law for all, no exceptions” and that law must be “secular.” Consistent with rationalist Enlightenment premises, the idea of minority rights or the ones of religiously-based autonomy regimes of the kind we find existing today in India, for example, are not considered by Locke. Religion involves individual “conscience” and differences of belief between individuals, even between a Catholic and a Muslim, do “no injury thereby to his Neighbor.” See supra n. 104. The separation between the religious and secular spheres has already been made in Locke's thought both within the (Protestant) individual and the (liberal) state. It does not occur to him that this separation may itself be subjective and that there may be other equally reasonable and rational ways of understanding that relationship.
110. Waldron, God, Locke and Equality, supra n. 96, at 237.
111. Waldron argues that for Locke, it was an open question about the extent to which non-Christian or non-monotheistic faiths may provide a basis (through some form of Rawlsian overlapping consensus) for a theory of natural rights and human equality. Certainly, while Locke's main concern was with theism per se (i.e., belief in God), his work drew virtually exclusively on Judeo-Christian sources. See id. at 230-231.
112. Locke, Letter, supra n. 97, at 51.
113. Waldron, God, Locke and Equality, supra n. 96, at 225.
114. This is not to say, however, that Locke did not turn his “universalist critique against European customs, and conjectures” as well. The point is not that “Locke reflexively invest[ed] the practices of his own culture with an aura of moral universalism” or that he was “complicit in a deliberate attempt to dehumanize the peoples and practices that the colonists faced in the new world.” Id. at 168. Rather, the point is that Locke's Natural Law and the doctrines he derived from it no longer appear to us, three centuries later, as either especially “natural,” “objective,” or “universal.”
115. Locke, Letter, supra n. 97, at 43 (cited in Waldron, God, Locke and Equality, supra n. 96, at 167).
117. Marx refers to this as the “ugly secret” at the heart of liberalism.
Founded on this basis [of exclusions], liberal democracy would then eventually serve as cover, with gradual enfranchisement hiding past exclusions and obfuscating that at the heart of liberalism is an illiberal determination of who is a member of the incorporated community and who is not.
Marx, Faith in Nation, supra n. 77, at 200.
118. Waldron, God, Locke and Equality, supra n. 96, at 242.
119. J.S. Mill, for example, did not assign rights a foundational role in his moral or political theory. In the case of those liberal philosophers who did, such as Locke, they were “commonly pressed into service in the interests of an individualistic moral outlook.” Raz, Joseph, The Morality of Freedom 250–251 (Oxford U. Press 1986)Google Scholar.
120. Id. at 251.
121. Id. at 252.
122. Id. at 251.
123. Id. at 254. As Raz observes, this is not to say that fundamental rights are not in competition with other collective goods, or that they do not conflict with other rights. On the contrary, the point is merely that “there is no general rule giving either rights or collective goods priority in cases of conflict.” Id. at 255.
124. On this distinction, see supra n. 71 to 77 and accompanying text.
126. This shift is well-captured by Waldron, who notes the analogy between “John Locke on God” and “John Rawls on moral personality.” Waldron suggests that Rawls's conception in his political liberalism of the human person as a free agent with certain moral powers “has to be able to do by itself… all the work for equality that is done, for Locke, by the notion of our status in the eyes of God.” Waldron, God, Locke and Equality, supra n. 96, at 239-240. Thus:
For Locke, the religious foundation is indispensable: we have seen it do important work in political theory, as premise and as a constraint. For Rawls, the moral personality stuff is a similarly load-bearing part of the theoretical structure, and similarly indispensable.
Id. at 240.
In proceeding to note that Rawls's theory does not necessarily fail by relying on some comprehensive conception of moral personality, Waldron argues that the “overlapping consensus that defines his political liberalism does have indispensable content, and some of that content is controversial.” Id.
127. David Kennedy, Losing Faith in the Secular: Law, Religion and the Culture of International Governance, in Religion and International Law, supra n. 54, at 309, 313.
128. See id. at 313.
129. Evans, Religious Liberty, supra n. 53, at 42. See also Cassese, Antonio, International Law in a Divided World 37–38 (Oxford U. Press 1986)Google Scholar.
130. Note, e.g., Ago who has argued that the origins of the modern international legal system should be traced back to the three empires of Charlemagne, Byzantium, and the Ottomans—each adopting a different religion and each interacting with the others. Ago, Roberto, Pluralism and the Origins of the International Community, 3 Italian Y.B. of Intl. L. 3 (1977)Google Scholar.
131. For Koskenniemi, the order which was instituted between sovereigns in the Peace of Westphalia marks “the transition from a Christian view of the world as an objective hierarchy of normative meaning to a historically relative consensus.” This was manifested in three ways:
It was recognized that even the possible existence of universal values was not a sufficient casus belli; secondly, the formal equality of the European sovereigns guaranteed the legitimacy of the internal policies of these same sovereigns; thirdly, the arrangement proceduralized inter-sovereign relations and allowed national interest as legitimate reason of war if only proper formalities were followed. At Westphalia, the sovereigns made a social contract. This involved accepting an ascending and a descending argument about international legitimacy: order was to emerge from the sovereigns themselves and the right of sovereigns to constitute an order of their liking was assumed as “inherent.”
Koskenniemi, Apology to Utopia, supra n. 15, at 72-73.
132. Note that Rawls, too, locates the
historical origin of political liberalism (and of liberalism more generally)… [in] the Reformation and its aftermath, with the long controversies over religious toleration in the sixteenth and seventeenth centuries. Something like the modern understanding of liberty of conscience and freedom of thought began then. As Hegel saw, pluralism made religious liberty possible, certainly not Luther's and Calvin's intention.
Rawls, John, Political Liberalism xxiv (Colum. U. Press 1993)Google Scholar.
133. The feudal structure of the Empire comprised two classes of territories. The first encompassed approximately eighty territories ruled directly by their own princes but through whom the emperor “mediated” his authority. Of these, around fifty were ecclesiastical territories and the rest were secular. The other class comprised either “free” imperial cities or cities which were the “private possession of a large number of lesser knights of the Empire, who held their often quite small possession directly from the emperor, whose authority in both these instances was ‘immediate.’” Evans, Religious Liberty, supra n. 53, at 46.
134. Nussbaum, A Concise History, supra n. 63, at 61. The Peace explicitly recognized the freedom of the Lutheran Church to self-government over internal matters (Art. 20); and this surrender of ecclesiastical jurisdiction ensured that in the free and imperial cities of the Empire, both religions were permitted co-existence. For the text of the Peace, see Evans, Religious Liberty, supra n. 53, at 46.
135. See Evans, Religious Liberty, supra n. 53, at 47.
136. Under Art. 18 of the Peace, Ecclesiastical territories that had been won over to Lutheranism were compelled to return to Roman Catholicism although, by the Declaratio Ferdinandea, the emperor agreed to allow practicing Lutherans in these territories to continue in their faith. Id. at 47-48.
137. Id. at 48.
138. Treaty of Peace between France and the Empire, signed at Münster 14 (24) Oct. 1648 (1 CTS 271); Treaty of Peace between Sweden and the Empire, signed at Osnabrück 14 (24) Oct. 1648 (1CTS 119).
139. Nussbaum, A Concise History, supra n. 63, at 115-117.
140. This affected contentious issues regarding the ownership of religious property and the enjoyment of religious freedoms. As Evans notes, the treaty “sought to enforce the religious status quo as of , and where religions had co-existed the continuation of both was affirmed.” Evans, Religious Liberty, supra n. 53, at 52.
141. According to the terms of Article V, §§ 28-30:
Catholics and Lutherans who were not entitled to the public or private exercise of their religion in 1624 because of their being in a territory of a different religious allegiance (in which it was confirmed by the treaty) were to be “patiently suffered and tolerated, without any hindrance or impediment” in both public and private worship, and were also to be able to send their children to foreign schools or have private tutors, but only for a short period. The lord of the territory was entitled to require a subject of the different faith to move elsewhere after a period of five years.
Id. at 52-53.
142. The aim of most post-Westphalian treaty practice was to preserve the status quo of religious practice in the face of any territorial changes between states or dynastic ambitions. When territory was ceded by one sovereign to another, subjects would therefore be allowed to continue in the private exercise of their religious beliefs or to emigrate. Id. at 55-57 (noting, however, that the “spirit of the Enlightenment engendered a liberalization of internal regulation of religious affairs throughout Europe”).
143. Thus, Article IX of the Polish-Prussian Treaty of Warsaw (1773) provided that the King of Prussia shall “guarantee all and such constitutions that shall be drawn up … in the Diet … both upon the structure of the free government … and on the pacification and the status of the Uniate religion and of the Protestants, Calvinist and Lutheran.” Id. at 57.
144. In Zelo domus Dei, Pope Innocent X denounced the religious aspects of the Treaties of Westphalia as “null, void, invalid, inequitable, unjust, condemned, reprobated, frivolous, of no force or effect.” Nussbaum, A Concise History, supra n. 63, at 116.
145. Evans, Religious Liberty, supra n. 53, at 59.
146. While collective freedom of worship was protected, “non-Muslims could not proselytize, they could build new churches only under license, and they were required to wear distinctive dress so they could be recognized. There were limits on intermarriage, and they had to pay special taxes in lieu of military service.” Kymlicka, Will, Two Models of Pluralism and Tolerance, in Toleration: An Elusive Virtue 81, 83 (Heyd, David ed., Princeton U. Press 1996)Google Scholar.
147. Id. at 83-84.
148. Id. at 84.
149. Id. See further Braude, Benjamin & Lewis, Bernard, Introduction, in Christians and Jews in the Ottoman Empire: The Functioning of a Plural Society 22–23 (Braude, Benjamin & Lewis, Bernard eds., Holmes & Meier Publg. 1982Google Scholar) (noting that in 1856 the Ottoman rulers sided with various reformers wanting to secularize, liberalize and democratize the millet system and use it as the basis for national self-government).
150. See Tuck, Richard, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant 12 (Oxford U. Press 1999)Google Scholar (arguing that it was Hobbes “above all who made clear the relationship between humanism and natural rights, and who demonstrated the link between the older jurisprudence of war and the new political theory”).
151. Kymlicka, Two Models, supra n. 146, at 85 (citations omitted).
152. This is confirmed by recent surveys of ethnonationalist conflict in the world which show that “self-government arrangements diminish the likelihood of violent conflict, while refusing or rescinding self-government rights is likely to escalate the level of conflict.” Kymlicka, Will, Western Political Theory and Ethnic Relations in Eastern Europe, in Can Liberal Pluralism be Exported?: Western Political Theory and Ethnic Relations in Eastern Europe 13, 26 (Kymlicka, Will & Opalski, Magda eds., Oxford U. Press 2001)Google Scholar.
153. Braude & Lewis, Christians and Jews, supra n. 149, at vol. 1, 1. When the Byzantine Empire fell to the Ottomans in 1453 with the taking of Constantinople, the religious independence of Christians was preserved and the Orthodox Church in fact flourished under the Ottomans, who supported them in their conflict with the Western Catholic powers (which the Orthodox Church saw as a greater threat). See Palmer, Alan, The Decline and Fall of the Ottoman Empire 28–31 (J. Murray 1992)Google Scholar; Evans, Religious Liberty, supra n. 53, at 60.
154. This conception of toleration of religious minorities by a religious majority group did not, however, differ much from the system of “licensed coexistence” in sixteenth and seventeenth-century Europe. As Kymlicka notes, the
Ottoman restrictions on the building and location of non-Muslim churches were similar to the system of “licensed coexistence” established under the Edict of Nantes (1598). Under that edict, which ended the Wars of Religion, Protestants in France could build new churches only in certain locations, and only with state license.
Kymlicka, Two Models of Pluralism and Tolerance, supra n. 146, at 84. Similarly,
both systems combined toleration of religious worship with discrimination in terms of public office. In the millet system, the non-Muslim communities gained freedom of worship in the 1400s but only achieved full legal equality in 1856. This parallels the growth of toleration in Britain, which adopted the Toleration Act in 1689, but which imposed some legal disabilities on Catholics and Jews until 1829 and 1846 respectively.
Id. at 98 n. 5.
155. As Arjomand notes, under the public law of the Muslim lands before the advent of modern constitutionalism the “function of government was not essentially to act as the executive of the sacred law (Shari'a) but to maintain order and rule with justice among the Muslim and non-Muslim subjects (re'aya) so that they could abide by the sacred law according to the religion and/or Muslim school (madhhab) of their choice.” Thus, contrary to both certain Orientalist and fundamentalist schools of thought, the
umma, or community of believers was never the political community. The political community of the Ottoman and Moghul empires contained as many or more non-Muslim as Muslim subjects (and the Safavid empire as many Sunnis as Sh'ites). So much so, that the European travelers in the Ottoman empire mistook the term “subjects” “(re'aya)” to mean Christians.
Arjomand, Said Amir, Religious Human Rights and the Principle of Legal Pluralism in the Middle East, in Religious Human Rights in Global Perspective: Legal Perspectives 331, 333–334 (van der Vyver, Johan D. & Witte, John Jr., eds., Martinus Nijhoff Publishers 1996)Google Scholar.
157. Kymlicka criticizes Rawls, in particular, for talking about the principle of tolerance as if “there were just one, which he equates with the idea of freedom of conscience.” Kymlicka, Two Models of Pluralism and Tolerance, supra n. 146, at 86. Rawls, e.g., has stated that the
success of liberal institutions may come as a discovery of a new social possibility: the possibility of a reasonably harmonious and stable pluralist society. Before the successful and peaceful practice of toleration in societies with liberal political institutions there was no way of knowing of that possibility. It can easily seem more natural to believe, as the centuries' long practice of intolerance appeared to confirm, that social unity and concord requires agreement on a general and comprehensive religious, philosophical or moral doctrine.
158. Kymlicka, Two Models of Pluralism and Tolerance, supra n. 146, at 86.
159. Id. at 83-87.
160. Arjomand, for example, has pointed out that the constitutional and public law of the contemporary Middle East “replaced not the Shari'a but the public law of the Muslim monarchies, especially those of the three early modern Muslim empires: the Ottoman empire in Eastern Europe, the Near East and North Africa; the Safavid—and later Qajar—empires in Iran; and the Mughal empire in India.” Arjomand, Religious Human Rights, supra n. 155, at 331. The public law of medieval and early modern Islam thus recognized a “basic duality of temporal and religious laws,” the public law consisting of the “kanun” and the divine law consisting of the shari'a. Id. at 334.
161. This included the exercise of criminal and civil jurisdiction over co-nationals and the right of free and public worship. See Nussbaum, A Concise History, supra n. 63, at 52-58. Note that under Articles III and IV of the First Franco-Turkish Capitulation, Suleiman the Magnificent conferred upon Francis I of France the power to appoint consuls with authority to determine “all causes, suits and differences, both civil and criminal, which might arise between merchants and other subjects of the King.” The local Cadi also had no criminal jurisdiction over French subjects and Article VI provided that they “have the right to practise their own religion.” Evans, Religious Liberty, supra n. 53, at 61.
162. See e.g. the Treaty of Carlowitz (1699) and the Treaty of Passerowitz (1718), which confirmed Roman Catholics (Latin rite) in the enjoyment of “whatever privileges the preceding … Emperors of the Ottomans have favourably granted in their realms, either by earlier sacred treaties or by other imperial marks, either by edict or by special mandate.” The Treaty of Kutschuk-Kainardji, concluded between Russia and Turkey in 1774, went even further and granted parallel liberties to Orthodox Christians. Evans, Religious Liberty, supra n. 53, at 62-63.
163. Thornberry, Patrick, International Law and the Rights of Minorities 29 (Oxford U. Press 1991)Google Scholar.
165. Evans, Religious Liberty, supra n. 53, at 64. A similar pattern can be seen later in the nineteenth century when the western powers forced China to accede to the “Unequal Treaties.” See Nussbaum, A Concise History, supra n. 63, at 194-195.
166. de Vattel, Emmerich, Le Droit des Gens (de Lapradelle, Albert ed., Adamant Media Corp. 1916)Google Scholar ch. III, at 9a. Vattel's general argument was that while in civil society each member must yield certain rights to a general body capable of legislation and sanctions, such an idea is inappropriate in the case of the relationship between nations where each State is independent of all the others. See Tuck, Rights of War and Peace, supra n. 150, at 192.
167. Koskenniemi, Apology to Utopia, supra n. 15, at 86. Thus, Vattel's conception of pacta sunt servanda and good faith rested not on religious foundations but on a secular natural law emphasizing reciprocity and reason. Vattel, Le Droit des Gens, supra n. 166, bk. II, ch. 12, § 163.
168. For Vattel, nations were formed by civil compacts and thus their obligation of self-preservation derived from “human act” and not nature. Id. at bk. I, ch. 2, § 16.
169. Koskenniemi, Apology to Utopia, supra n. 15, at 90. See Vattel, Le Droit des Gens, supra n. 166, Préliminaires § 11.
170. Vattel, Le Droit des Gens, supra n. 166, bk. I, ch. 12, § 125.
171. The horrible idea of spreading religion by the sword is subversive to the Law of Nations and the most terrible scourge of peoples …. While Charlemagne was ravaging Saxony with fire and sword, in order to establish Christianity there, the successors of Mahomet were devastating Asia and Africa, in order to set up the Koran.
Id. at bk. II, ch. 4, § 59.
172. Id. at bk I, ch. 12, §§ 129-130.
173. Id. at bk. II, ch. 1, § 7. See Janis, Religion and the Literature of International Law, supra n. 55, at 128.
174. Did not Grotius perceive that in spite of all the precautions added in the following paragraphs, his view opens the door to all the passions of zealots and fanatics, and gives to ambitious men pretexts without number? Mahomet and his successors laid waste to and subdued Asia to avenge disbelief in the unity of God; and all those whom they regarded as associateurs, or idolaters, were victims of their fanaticism.
Vattel, Le Droit des Gens, supra n. 166, at bk. II, ch. 1, § 7.
175. States, for example, are for Vattel the sole judges of their own treaty obligations. If there is a perceived conflict between a treaty's objectively binding nature and State freedom, the State is only under an imperfect duty to interpret the treaty equitably and in good faith. Id. at bk. II, ch. 12, §§ 1591-1570. The obvious risk of this approach is that a state remains bound only if that is what it wills.
176. Weber famously asserted an ideological link between the rise of Protestantism and the rise of capitalism and saw it as no accident that the first free-market societies developed in the Protestant states of the Netherlands, England and America. Weber, Max, The Protestant Ethic and the Spirit of Capitalism (Parsons, Talcott trans., Oxford U. Press 1992)Google Scholar.
177. As Orend argues, “Locke himself was a strong supporter of the Glorious Revolution, so it is important to note that the book was not just abstract philosophy but also very much a product of its time, almost like a sophisticated political pamphlet justifying the change in government.” Orend, Brian, Human Rights: Concept and Context 201–202 (Broadview Press 2002)Google Scholar.
178. Nussbaum, A Concise History, supra n. 63, at 232.
179. Koskenniemi, Apology to Utopia, supra n. 15, at 99 n. 220 (citing von Stachau, Kaltenborn, Kritikdes Völkerrechts 24–25 (1847))Google Scholar.
180. As Koskenniemi suggests, Austin in his Province of Jurisprudence Determined (1832) argued that only positive law is a proper subject for jurisprudence and that the precepts of international law are “but the opinions of States” and thus such writing is “even at its best (i.e., when descriptive and positivistic) writing about positive morality.” Koskenniemi, Apology to Utopia, supra n. 15, at 101. For Austin, the early lawyers such as Grotius and Pufendorf “confounded … the rule which actually obtains among civilized nations … with their own vague ideas of international morality as it ought to be.” Id. at n. 234 (quoting Austin, John, Lectures on Jurisprudence and the Philosophy of Positive Law 74–75 (Lawbook Exch. 1913))Google Scholar (alterations in original). The Vattelian premise of the equality of states meant that there could be no superior-inferior relation and this led Austin to his famous conclusion that international law is not law “properly so-called.” Id. at 102.
181. Jellinek argued that the fact that international law emerges from the State's or nation's will does not necessarily make it a matter of opinion or arbitrary State will. State will can bind itself and the naturalist position that autolimitation is impossible should be rejected. See Koskenniemi, Apology to Utopia, supra n. 15, at 104. By combining State purpose and the nature of international relations, Jellinek attempted to achieve the equivalent in liberal argument to an objective law existing beyond State will.
182. Koskenniemi, Apology to Utopia, supra n. 15, at 105-106. Koskenniemi concludes that Austin was a “moral cognitivist” and Jellinek used “State purpose as an objective telos.” Both views are descending and lead beyond liberalism. Id. at 106.
183. Koskenniemi notes that the arguments of many professionals conserved the idea of natural law and even “insisted on the natural character of most international law.” The structure of their argument was “identical to that of professional positivists or eclectics, the difference being in syntax, or order of making the descending or ascending points.” Id. at 106. The term “positivism” is, however, open to many interpretations and thus may include certain normativist and sociological strands beyond simple “voluntarism.” Id. at 106-107.
184. Koskenniemi, Apology to Utopia, supra n. 15, at 107. Koskenniemi shows how two professional theorists, Klüber (1762-1836) and de Martens (1845-1900), integrate both of these strands into their arguments. Although they start from opposing positions (the former ascending, the latter descending), they end up in similar doctrinal outcomes. Id. at 108-117 (citing Klüber, J.L., Droit des Gens Moderne de l'Europe (1819)Google Scholar; de Martens, F., Traité de Droit International I-III (1883-1884, 1887))Google Scholar.
185. Noyes, John E., Christianity and Late Nineteenth-Century British Theories of International Law, in The Influence of Religion on the Development of International Law 86 (Janis, Mark W. ed., Martinus Nijhoff Publishers 1991)Google Scholar.
186. Oppenheim, L., International Law: A Treatise 4, 346 (Lawbooks Exch. 1905)Google Scholar. Oppenheim considered religion along with science, art, developed agriculture, industry and trade to be the main interests that define “civilised States.” He thus stated: “As the civilised States are, with only a few exceptions, Christian States, there are already religious ideas which wind a band around them.” Id. at 10.
187. Id. at 148.
188. For an extended analysis of this issue, see Anghie, Antony, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law, 40 Harv. Intl. L.J. 1 (1999)Google Scholar (exploring the relationship between positivism and colonialism).
189. See Lorimer, James, The Institutes of the Law of Nations: A Treatise of the Jural Relations of Separate Political Communities 93 ff. (Oxford U. 1884)Google Scholar. See further Koskenniemi, Martti, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960, at 131 (Cambridge U. Press 2002)Google Scholar.
190. Lorimer, James, The Institutes of Law: A Treatise of the Principles of Jurisprudence as Determined by Nature 334 (T. & T. Clark, L. Publishers 1872)Google Scholar.
191. Lorimer, The Institutes of the Law of Nations, supra n. 189, at 12.
192. Lorimer, James, Studies National and International 153, 157 (William Green & Sons 1890)Google Scholar.
193. See Koskenniemi, Gentle Civilizer of Nations, supra n. 189, at 78 (discussing the “idea of moral character as the nucleus of civilized conscience-consciousness” in late nineteenth-century international legal thought).
194. For Pufendorf's theory of sovereignty and criticism of Hobbes, see Pufendorf, Samuel, The Law of Nature and Nations II. 3. 20, at 141 (Kennet, Basil trans., 5th ed. 1749)Google Scholar.
195. Noyes, Christianity, supra n. 185, at 91 (citing Lorimer, Law of Nations, supra n. 189, at 126-133).
196. Lorimer, Law of Nations, supra n. 189, at 114.
197. For an argument that much of the Enlightenment represents the secularization of Christian values, see Gray, John, Enlightenment's Wake: Politics and Culture at the Close of the Modern Age, ch. 10 (Routledge 1995)CrossRefGoogle Scholar. Note also Stuart Hampshire's observation that the “positivist interpretation of history” was widespread in the nineteenth century and suggested that there must be a step-by-step convergence on liberal values, i.e., “our values.” “The positivists believed that all societies across the globe will gradually discard their traditional attachments … because of the need for rational, scientific and experimental modes of thought which a modern industrial economy involves.” Hampshire, Stuart, Justice is Strife, 65 Proc. & Addresses Am. Phil. Assn. 19, 24–25 (11 1991)Google Scholar.
198. For extensive discussion on the implications of this point, see Noyes, Christianity, supra n. 185, at 92-102. Lorimer, for example, rejected “Mahometan States” as not being entitled to recognition under the law of nations as the “Koran would still have stood between it and the world without, and contradicted its constitutional professions of reciprocating will.” Thus, “[u]nless we are all to become Mahometans, that is a time which Mahometanism tells us can never come.” Lorimer, Law of Nations, supra n. 189, at 124.
200. As Anghie observes, the “existence of a distinction between the civilized and the uncivilized was so vehemently presupposed by the positivist jurists, that the state of nature—and therefore naturalism—becomes epistemologically incoherent because lacking this central distinction.” Anghie, Finding the Peripheries, supra n. 188, at 24.
201. Noyes, Christianity, supra n. 185, at 93.
202. Lorimer, Institutes of Law, supra n. 190, at 332.
203. Id. at 335-336.
204. On the question of colonization, Lorimer stated as follows:
All that can be said is, that at the point at which the rights and duties of recognition cease, the rights and duties of guardianship begin …. Colonisation, and the reclamation of barbarians and savages, if possible in point of fact, are duties morally and jurally inevitable; and where circumstances demand the application of physical force, they fall within necessary objects of war.
Lorimer, Law of Nations, supra n. 189, at 227-228.
205. Id. at 184.
206. For a useful discussion of the transformation of the right to freedom of thought, conscience and religion from the writings of early thinkers into national law, and ultimately into international law, see Krishnaswami, Arcot, Study of Discrimination in the Matter of Religious Rights and Practices, U.N. Doc. E/CN.4/Sub. 2/200/Rev. 1 (1960)Google Scholar, reprinted in Religion and Human Rights: Basic Documents 2 (Stahnke, Tad & Martin, J. Paul eds., Ctr. for Study of Hum. Rights 1998)Google Scholar.
207. For the relevant provisions of these various agreements, see Protection of Linguistic, Racial and Religious Minorities by the League of Nations, League of Nations C.L. 110 1927 I.B. 2 (1927). See also Claude, Inis L. Jr., National Minorities: An International Problem (Harv. U. Press 1955)CrossRefGoogle Scholar; Evans, Malcolm D., Religious Liberty and International Law in Europe 105ff (Cambridge U. Press 2008)Google Scholar.
208. Evans, Religious Liberty, supra n. 53, at 105-106.
209. Article 10 sought to ensure that the Jewish community retained full control of its schools, a right not extended to other minorities, who had to rely on the Polish government to ensure their enjoyment of funding under Article 9 (requiring education to be provided in minority languages). See Annex D to Minutes of 23rd Meeting of the New States Committee in Miller, D.H., My Diary at the Peace Conference vol. 13, 171Google Scholar (privately published, Appeal Printing 1924). Article 11 specifically protected Jews from being compelled to perform any act which constituted a violation of their Sabbath (with the exception of military service). See Evans, Religious Liberty, supra n. 53, at 119-120.
210. Evans, Religious Liberty, supra n. 53, at 120.
211. New States Committee, Minutes, 27th Meeting, Annex C, in Miller, My Diary, supra n. 209, at 220-221. Cf. Advisory Opinion No. 11, Minority Schools in Albania, 1935 P.C.I.J. (Ser. E) No. 11, at 136 (Apr. 6, 1935) (holding that the minorities treaties required “equality of opportunity” for minority groups with majority populations and that this required not just “negative nondiscrimination” but “positive measures” to protect and preserve minority languages, culture and religion).
212. Treaty of St. Germain, Arts. 62-69 (Austria); Treaty of Trianon, Arts. 55-60 (Hungary); Treaty of Neuilly, Arts. 49-57 (Bulgaria).
213. Treaty of Sèvres Arts. 140-150 (Fr.).
214. See Evans, Religious Liberty, supra n. 53, at 143.
215. See Macartney, C.A., National States and National Minorities 289 (Oxford U. Press 1934)Google Scholar. As noted above, none of the Allied Powers themselves were prepared to assume reciprocal minority obligations. The failure of the United States to join the League of Nations also contributed significantly to its final collapse.
216. See Bowett, D.W., The Law of International Institutions 17–18 (4th ed., Stevens 1982)Google Scholar (noting that whether a breach of the League Covenant had occurred, or whether there was an obligation to apply economic sanctions under Article 16(1), was ultimately dependent on each member's view of the situation).
217. See Veatch, Richard, Minorities and the League of Nations, in The League of Nations in Retrospect 369, 381 (de Gryuyter, Walter ed., UN 1983)Google Scholar.
219. Robinson, Jacobet al., Were the Minorities Treaties a Failure? 265 (Inst. Jewish Affairs Am. Jewish Cong & World Jewish Cong. 1943)Google Scholar.
220. Minority Schools in Albania 1935 P.C.I. J. (Ser. A/B) No. 64, at 17 (suggesting that the protection of racial, religious or linguistic minorities and the ensuring of “true equality” between a majority and a minority requires “suitable means for the preservation of their racial peculiarities, their traditions and their national characteristics”).
222. See e.g. Lauren, Paul Gordon, The Evolution of International Human Rights—Visions Seen (U. Pa. Press 1998) especially 105–138Google Scholar (“Visions and Rights Between the Wars”) and 172-204 (“Peace and a Charter with Human Rights”); Morsink, Johannes, The Universal Declaration of Human Rights: Origins, Drafting, and Intent 288–294 (U. Pa. Press 1999)Google Scholar.
223. See UN Charter, art. 1, ¶3; UDHR, art. 2, ¶ 1. See also ICCPR, art. 2, ¶ 1 & 26.
224. Summary Record of the Seventy-Third Meeting, UN ESCOR, Coram, on Hum. Rts., 3d Sess., at 5, UN Doc. E/CN.4/SR. 73 (1948). In the previous year, Eleanor Roosevelt made the point that while there were different ethnic and linguistic groups in the U.S., their rights were adequately secured on the basis of individual rights and the nondiscrimination principle. See Working Group on the Declaration of Human Rights, UN ESCOR, Comm. on H.R., 2d Sess., at 1, UN Doc. E/CN.4/57 (1947). For a powerful account of this period in American foreign policy, see Anderson, Carol, Eyes Off the Prize: The United Nations and the African American Struggle for Human Rights, 1944–1955 (Cambridge U. Press 2003)Google Scholar (pointing to the “exigencies of the Cold War” and need to camouflage the “the reality of Jim Crow democracy” and the “Colored question” as shaping the U.S. drafting positions).
225. Given these post-1948 developments, Morsink has asked whether today an additional provision modeled on Article 27 of the ICCPR should be added to the Declaration. This would, in his view, correct the “greatest defect of this pivotal document,” i.e., the blindness it shares with the UN Charter about the connection that exists between the prevention of discrimination and the protection of minorities. See Morsink, Universal Declaration oj Human Rights, supra n. 222. See also Thornberry, International Law, supra n. 163, at 141-142 (suggesting that Article 27 is the “only expression of the right to an identity in modern human rights conventions intended for universal application.”).
226. Resolution Adopted by the General Assembly on Nov. 25, 1981 (on the Report of the Third Committee (A/36/684)) [hereinafter the 1981 Declaration].
228. See Danchin, Peter G., U.S. Unilateralism and the International Protection of Religious Freedom: The Multilateral Alternative, 41 Colum. J. Transnational L. 33 (2002)Google Scholar; Protecting the Human Rights of Religious Minorities in Eastern Europe 192 (Danchin, Peter G. & Cole, Elizabeth A. eds., Colum. U. Press 2002)Google Scholar.
229. In 1948, most African and Asian states were European colonies and thus did not participate in the drafting of the Universal Declaration. See Leary, Virginia, The Effect of Western Perspectives on International Human Rights, in Human Rights in Africa: Cross-Cultural Perspectives 20 (An-Na'im, Abdullahi Ahmed & Deng, Francis M. eds., Brookings Instn. Press 1990)Google Scholar.
231. This notion is central to Alasdair MacIntyre's thesis of the failure of the Enlightenment project to provide an autonomous justification for morality. For Maclntyre, the Enlightenment disengages human beings from this [prior] communal and metaphysical-religious context and thereby robs them of their practice-immanent (as seen from the Aristotelian perspective) and practice-transcending (as seen from the Augustinian-Thomistic perspective) telos as it attempts to justify morality on the basis of a contextless reason of persons robbed of all particularity. Being without ethical substance, this attempt fails and results in a mélange consisting of the ruins of past conceptions of morality, from which the existing “emotivist” culture draws the conclusion that there are no moral obligations at all for such detached persons.
See Forst, Rainer, Contexts of Justice: Political Philosophy beyond Liberalism and Communitarianism 203 (Farrell, John M.M. trans., U. Cal. Press 2002) (citing MacIntyre, Whose Justice, supra n. 1)Google Scholar.
232. See Koskenniemi, Apology to Utopia, supra n. 15, at 460-462.
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