Of Human Dignities

Mark L. Movsesian*

Dignitatis Humanae: “Of Human Dignity.” The Second Vatican Council’s 1965 declaration on religious liberty must have seemed a triumph—an exclamation mark signaling the success of a decades-long project, begun during the Second World War, to restore human rights to the center of Catholic social teaching.¹ In wartime addresses, Pope Pius XII had called for recognition of human rights, based in human dignity, as the foundation for a stable peace.² In 1963, Pope John XXIII had made universal human rights, including religious liberty, part of the Magisterium.³ The project had had effects outside the Church as well. In 1948, largely as a result of Catholic influence, the United Nations had adopted a Universal Declaration of Human Rights with human dignity at its core.⁴ That declaration contained a ringing endorsement of religious liberty: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom 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.”⁵

How different things looks now. True, numerous treaties protect human rights; international organizations monitor their enforcement.⁶ Conventional wisdom holds that human rights, including religious liberty, are universal.⁷ Yet, as Allen Hertzke writes, “[d]espite considerable progress since the passage of the Universal Declaration, only a minority of people on earth enjoys the kind of religious freedom called for in international covenants.”⁸ According to a recent Pew Survey, “some 70 percent of the world’s 6.8 billion people live in countries with high restrictions on religion.”⁹ One cannot know, of course, what the situation would be like without them. But there is little evidence that either the Universal Declaration or Dignitatis Humanae have done much to secure, as a practical matter, the universal vision of religious freedom they contemplate.¹⁰

Notwithstanding a surface consensus, fifty years after Dignitatis Humanae, nothing like universal agreement exists on what human dignity means and what it entails for religious liberty.¹¹ A variety of competing understandings exist. There are objective understandings that ground dignity in external factors beyond individual choice. The Catholic Church advocates one such understanding; the Russian Orthodox Church and the Organization of Islamic Cooperation advocate others.¹² Objective understandings conflict with a subjective conception of human dignity, based on the will of the individual, which most secular human rights advocates prefer. The rival conceptions of dignity clash, particularly in the context of “new rights” like same-sex marriage.¹³ In that context, groups and countries that advocate objective conceptions of dignity join forces to resist supporters of the subjective understanding.

A conflict also exists between individualist and corporate understandings.¹⁴ The former conceive dignity mostly in terms of individual persons. Notwithstanding disagreement on the objective/subjective question, both the Catholic and the secular understandings of human dignity are principally individualist. Corporate understandings, by contrast, emphasize group dignity and rights. On corporate understandings, religious communities—in particular, traditional religious communities—can assert claims to religious liberty against outsiders who threaten communal integrity. Although important differences exist between them, the Russian Orthodox Church and the Organization of Islamic Cooperation both endorse understandings of religious liberty with strong corporate elements. The conflict between individualist and corporate understandings plays out particularly in controversies over proselytism and the right to convert. On these issues, the Catholic Church and secular human rights advocates find themselves on the same side, arguing together against voices from other traditions.

In short, the postwar project to forge a universal notion of human dignity has failed. Instead, radically different understandings contend against one another and prevent agreement on crucial issues. How are we lawyers to respond? One response is to work harder to achieve consensus. At a conference on religious freedom the St. John’s Center for Law and Religion cosponsored in Rome in 2014, Pope Francis asked us all to recommit to the universal conception of religious liberty contained in Dignitatis Humanae. Recognizing “universally shared values,” Francis maintained, could promote “mutual respect” among religions and “global cooperation in view of the common good.”¹⁵ Serious scholars, particularly from the United States, have advocated more robust promotion of a universal notion of human dignity, and religious liberty, across the globe.¹⁶

With respect, these efforts seem to me misguided. True, one can point to examples that suggest a convergence of ideas about human dignity.¹⁷ But, on the whole, the differences are too profound to be resolved easily. The chances that any one camp will persuade the others to adopt its views on dignity and religious freedom seem to me slim. Rather than trying to forge agreement on universal concepts, we lawyers should commit to a more modest approach, one that accepts the reality of disagreement and finds a humane way to accommodate it. Such an approach will seem defeatist to universalizers. But it has greater likelihood of success in the real world than the more ambitious programs currently on offer.

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© 2016 Mark L. Movsesian. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Frederick A. Whitney Professor and Director, Center for Law and Religion, St. John’s University. I thank Robert Delahunty, Marc DeGirolami, Lawrence Joseph, John McGinnis, and Peggy McGuinness, as well as the participants in this symposium, for helpful comments, and St. John’s Law student Christina Vlahos for research assistance.

1 Human rights have long roots in Catholic thought, going back at least to the sixteenth-century neo-Scholastics. But the Church had distanced itself from rights-talk in the nineteenth century, alarmed by the excesses of the Enlightenment and the French Revolution. See John Witte, Jr., Introduction to Christianity and Human Rights 8, 22, 24 (John Witte, Jr. & Frank S. Alexander eds., 2010).

2 Drew Christiansen, S.J., Commentary on Pacem in Terris, in Modern Catholic Social Teaching 217, 236 (Kenneth R. Himes ed., 2005); Samuel Moyn, Christian Human Rights 3 (2015).

3 See Christiansen, supra note 2, at 217, 233; Christopher McCrudden, In Pursuit of Human Dignity: An Introduction to Current Debates, in Understanding Human Dignity 1, 16–17 (Christopher McCrudden ed., 2013).

4 G.A. Res. 217 A (III), art. 1, Universal Declaration of Human Rights (Dec. 10, 1948). Although the drafters came from varied cultural backgrounds, see Mary Ann Glendon, A World Made New 225–26 (2001), Catholic ideas had a powerful influence, through thinkers like Maritain, Malik, and others. Christiansen, supra note 2, at 235–36 (discussing influence of Catholic ideas).

5 G.A. Res. 217 A (III), supra note 4, art. 18.

6 For a good overview, see T. Jeremy Gunn, The Human Rights System, in Christianity and Human Rights, supra note 1, at 193.

7 See Christoph Grabenwarter, Freedom of Religion: The Contribution of Benedict XVI to a Universal Guarantee from a European Perspective, in Pope Benedict XVI’S Legal Thought 150, 153 (Marta Cartabia & Andrea Simoncini eds., 2015).

8 Allen D. Hertzke, Religious Freedom in the World Today: Paradox and Promise, in Universal Rights in a World of Diversity 118 (Mary Ann Glendon & Hans F. Zacher eds., 2012).

9 Id.

10 See Eric A. Posner, The Twilight of Human Rights Law 7 (2014) (“[T]here is little evidence that human rights treaties, on the whole, have improved the well-being of people, or even resulted in respect for the rights in those treaties.”).

11 See Thomas Banchoff & Robert Wuthnow, Introduction to Religion and the Global Politics of Human Rights 3 (Thomas Banchoff & Robert Wuthnow eds., 2011) (noting that notwithstanding the “near-global consensus that human rights are a good thing,” controversy rages about “[w]hat rights mean and how to realize them”).

12 For a recent analysis of the human rights perspectives of these three religious voices, see generally Peter Petkoff, Religious Exceptionalism, Religious Rights, and Public International Law, in The Changing Nature of Religious Rights Under International Law 211 (Malcolm D. Evans et al. eds., 2015) [hereinafter Changing Nature of Religious Rights].

13 See Marta Cartabia, The Challenges of “New Rights” and Militant Secularism, in Universal Rights in a World of Diversity, supra note 8, at 428, 428–29.

14 Jose Casanova, Globalization and the Free Exercise of Religion Worldwide, in Challenges to Religious Liberty in the Twenty-First Century 139, 140–41 (Gerard V. Bradley ed., 2012) [hereinafter Challenges to Religious Liberty].

15 Pope Francis, Address of Pope Francis to Participants in the Conference on “International Religious Freedom and the Global Clash of Values” (June 20, 2014), http://w2. vatican.va/content/francesco/en/speeches/2014/june/documents/papa-francesco_ 20140620_liberta-religiosa.html. For the conference proceedings, see La Liberta Religiosa Secondo il Diritto Internazionale e il Conflitto Globale Dei Valori (Monica Lugato ed., 2015).

16 See, e.g., Thomas F. Farr, World of Faith and Freedom: Why International Religious Liberty is Vital to American National Security (2008); Daniel Philpott, A Foreign Policy of Religious Freedom: Theoretical and Evidentiary Foundations, in Challenges to Religious Liberty, supra note 14, at 175.

17 See, e.g., Andrea Pin, The Arab Road to Dignity: The Goal of the “Arab Spring” (unpublished manuscript) (on file with author)