When Does the Exercise of an Interest Constitute a Human Right?

Dr. Angus Menuge, PhD

Legitimizing Human Rights: Secular and Religious Perspectives, edited by Angus J.L. Menuge (Ashgate, 2013).

Human rights have never been so popular. On the one hand, they are used as ideological weapons to critique political and cultural adversaries. Liberals attack the existing marriage laws for limiting the rights of homosexuals. Conservatives charge that religious freedom has been eroded by the imposition of secularist ideology in the public square. Western democracies denounce other societies for their treatment of dissidents and religious minorities; these democracies are in turn criticized for exploiting the developing world. The United States is singled out for
its use of torture and capital punishment and for its failure to provide universal health care.

On the other hand, appeal to human rights is used to advance the causes of social justice and equality. In advanced liberal democracies, this includes more and more of what citizens expect from life. Healthcare, education and sexual orientation are now increasingly viewed as fundamental to human flourishing. Yet consensus on a basic list of human rights has proven elusive. Not a few of the countries signatory to major human rights agreements exempt themselves from laws that contradict the dominant beliefs and customs of their people. And even if abuses like slavery and religious discrimination are declared illegal, the prohibition may not be enforced because the practices are culturally entrenched and ignored by law enforcement. In the West, the demand to recognize almost every strong preference as legally protected has led to contradictory rights claims. The right to life appears to be the most fundamental right of all, since, without it, no other right can be exercised. Yet elective abortion, euthanasia and even infanticide are also claimed as human rights. And while believers appeal to freedom of conscience to justify a religious voice in the public square, secularists charge that this violates their right to be free from such intrusion

When does the exercise of an interest constitute a human right? The contributors to Menuge’s edited collection offer a range of secular and religious responses to this fundamental question of the legitimacy of human rights claims. The first section evaluates the plausibility of natural and transcendent foundations for human rights. A further section explores the nature of religious freedom and the vexed question of its proper limits as it arises in the US, European, and global contexts. The final section explores the pragmatic justification of human rights: how do we motivate the recognition and enforcement of human rights in the real world?

This topical book should be of interest to a range of academics from disciplines spanning law, philosophy, religion and politics. To learn more about this book, see the outline of contributions below and download the free Introduction by Menuge. A precis about the overall argument of the book is also available here.

Benefits of the book

  • It features an international and interdisciplinary team of scholars addressing this topic from both a theist and non-theist perspective.
  • It is attentive and responsive to both trends and habits of thought on this topic without itself being trendy.
  • It addresses underlying “meta-” issues in the literature where much of the “human rights” and “dignity” literature fails to journey.
  • It provides both a handsome introduction to the “state of the discussion” and a guide into further questions, problems and concerns in the literature.
  • It is a resource to be studied and consulted in both religious and non-religious educational and policy-making contexts.

Menuge on the Background of the book

Due to my participation in John Warwick Montgomery’s international academy of apologetics, evangelism and human rights, I came to see the fascinating connections between legal philosophy and Christian apologetics.  Then Montgomery and some other friends interested in the philosophy of law invited me to attend the IVR World Congress of Philosophy of Law and Social Philosophy.  At the Beijing meeting (2009), we discussed the strange state of play in both the popular and academic discussion of human rights.

At the popular level, human rights are all the rage.  Indeed almost any social good is declared to be a human right, and rights-talk is routinely used as a machine de guerre to discredit opposing views as unenlightened and oppressive.  Yet the association of rights with whatever is strongly desired has led to contradictory rights claims.  For example, there is a right to life, but also a right to terminate unwanted life.  And while many complain that the right to religious expression is being curtailed by an intrusive, secular state, others claim the right to live without exposure to that expression.  These contradictions seem unresolvable because participants in the discussion are unable to offer a clear criterion of what does and does not constitute a human right.  Claims are made with great passion, but little thought is given to how we decide whether these claims are justified.

At the academic level too, there is a torrent of work on human rights, but most of it is devoted to exposing abuses, political advocacy for change, and discussion of the best legal framework for advancing human rights protections.  While all of this is important, it avoids the fundamental question of what makes it the case that there are any human rights which can be protected or abused.   For example, discussion of the legal basis for human rights does not resolve the question of justification, because legal frameworks can be used to institutionalize human rights abuses.  Thus, one of the key motivations for the subsequent development of the Universal Declaration of Human Rights (1948) was the sobering conclusion of the Nuremburg trials after WWII.   At these trials, as Montgomery notes:

The most telling defense offered by the accused was that they had simply followed orders or made decisions within the framework of their own legal system, in complete consistency with it, and that they therefore could not be condemned because they deviated from the alien value system of their conquerors (John Warwick Montgomery, The Law Above the Law (Minneapolis, MN: Bethany Lutheran Fellowship, 1975), 24).

It was this argument that compelled Robert Jackson, the Chief Counsel for the United States, to appeal to a higher law – a law above the law – inherent to civilization, that transcends the particular laws of various states. Montgomery concludes:

Thus have the horrors of…history forced us to recognize the puerile inadequacy of tying ultimate legal standards to the mores of a particular society (Ibid, 26).

Simply avoided in most discussions of human rights are three types of foundational, philosophical question:

  1. Ontological questions:  What is a human right?  Why should we think there are any human rights? Why suppose human beings have special rights not possessed by other creatures?
  2. Epistemological questions:  How can we know when something is or is not a human right?  Which worldview best explains human rights?
  3. Pragmatic questions:  How do we promote cultural acceptance of human rights? How do we reform societies or cultures with institutionalized human rights abuses?  How do we enforce human rights legal protections?

Realization of the importance of these questions and the need for them to be addressed afresh in a direct fashion led me to organize the workshop on the legitimizing of human rights for the 2011 meeting of the IVR  World Congress in Frankfurt, Germany.  It was soon suggested that the papers presented could be developed into the chapters of a book, and Ashgate was interested in the idea.

Still, it became obvious that additional voices needed to be included.  In particular, the relationship between religion and human rights is highly controversial.  Some affirm and some deny that theism is required as a justification for human rights.  Some affirm and some deny the idea that robust forms of religious expression should be protected as fundamental human rights.  So a number of additional chapters were solicited to air both sides of these issues.


(with some abstracts by the contributors)

Angus J.L. Menuge: Introduction. For a shorter version, read Menuge’s precis on the book.

Part I: The Foundation of Human Rights

  • Paul Copan: “Grounding human rights: naturalism’s failure and Biblical theism’s success.”

Abstract: The effort to locate metaphysical capital to undergird human rights claims in naturalism and its secularist worldview offshoots can only result in failure. By contrast, biblical theism offers robust ontological and epistemological foundations for human rights–particularly with its emphasis on the image of God. Naturalism’s materialistic, valueless, and deterministic context cannot adequately ground intrinsic human dignity and worth—unlike biblical theism’s context of a supremely good, personal Agent, who endows humans with value, free will, and rationality. Naturalistic objections that appeal to the Euthyphro argument or to Kant’s challenge to divine commands (e.g., Abraham and Isaac) are mistaken. And biblical theism’s philosophical success is matched by its historical influence to bring to the West many democratic values including human rights, abolition of slavery, and the bioethics movement, as atheist scholars themselves acknowledge.

  • Paul Cliteur: “Theism and human rights.”

Abstract: A human right is a just entitlement one has simply in virtue of being human: human rights are universal, inherent and inalienable. Rooted in our nature as human beings, they can neither be granted nor revoked by the state or any other temporal authority. Many of today’s ardent defenders of human rights are secularists whose underlying worldview is naturalism. But can naturalism provide an adequate foundation for human rights? For naturalism, a human being is one occurrence among many, distinguished only by its natural history. That history consists of contingent events which have shaped every human faculty, including the moral sense. As Charles Darwin emphasized in The Descent of Man, this has radical implications for our understanding of morality. It implies that if our natural history had been relevantly different, our moral sense would not be the same. Evolutionary Ethics (EE) offers two answers to this question: Weak EE and Strong EE. Weak EE is a thesis of moral psychology: it gives an account of the origin of moral sentiments and beliefs. It has no ontological implications for morality (it is compatible with both the existence and the non-existence of objective moral values), and it does not imply that our moral perceptions are reliable. Strong EE claims that our psychological states reliably track moral reality and that they do so because what counts as a moral value itself depends on biological history, so it does have ontological implications. The basic dilemma for EE is this. If EE is correct then either: (1) human rights do not exist or (2) they are unknowable. In fact, I argue that either moral skepticism or moral anti-realism is the most plausible conclusion to draw from a Darwinian account of human nature. Quite obviously though, those supporting human rights protections believe that human rights are both real and knowable, and so they are best advised to look elsewhere for a noncontingent foundation for human rights, with biblical theism a leading candidate (as Paul Copan shows in his chapter).

  • Friedrich Toepel: “Human rights as legal rights.”

Abstract: This article pleads for an understanding of human rights as primarily legal rights. For him, it is possible to see these rights as eternal and inalienable from a certain moral perspective once they have been recognized by a system of international law. History teaches us, however, that human rights have come to be recognized which were not always recognized as such (for example the women’s right to vote). Legal positivism makes the clearest understanding of human rights possible. Other views which treat human rights as moral rights are dangerous insofar as they foster unrealistic expectations. Rights are nowadays predominantly understood as Hohfeldian claim-rights, and it is not realistic to expect the enforcement of a claim based merely on a moral right which is not supported by institutions of international law. Moral rights are not necessary concepts of moral discourse. It should be sufficient to determine whether it is morally right or wrong for someone to have something instead of determining whether someone has a moral right to it. Legal positivism combined with constructivism can also allow for a legal perspective which introduces human rights retroactively. Moreover, if legal positivism treats the legal system as an autopoietic system, it can escape the Hobbesian legitimation regress argument.

Part II: Religious Liberty and the Secular State

  • John H. Calvert: “Human rights in a secular state will depend on its legal; definition of religion.”

Abstract: John H. Calvert, Esq., a Constitutional Lawyer, argues that human rights should be maximized in a truly secular state – one which may not by its constitution endorse a particular religious view or abridge one’s right to implement a religious viewpoint. However, to be “truly secular,” the state must define religion to include non-theistic and pantheistic belief systems. If religion is defined narrowly as just theistic, a so-called secular state will become one that aids non-theistic belief systems while discriminating against the theistic – it will become a functional atheocracy. Accordingly, citizens of states required to be secular, should seek to promote and establish laws and regulations that define religion inclusively so as to require the state to be truly neutral as to competing theistic and non-theistic world views.

  • Vito Breda: “Balancing secularism with religious freedom: in Lautsi v Italy, the European Court of Human Rights evolved.”

Abstract: Until recently, the principles of secularism, religious pluralism and state neutrality have been perceived in the jurisprudence of the European Court of Human Rights (ECtHR) as partially overlapping concepts. However, in Lautsi and others v. Italy, the Grand Chamber of the ECtHR has—in a landmark decision—qualified the interplay between these ideas. This chapter will argue that Lautsi v. Italy signals a turning point in the previous ECtHR jurisprudence, which often associated secularism with the protection of pluralism and democracy. There are two main consequences of the decision. Firstly, the ECtHR recognized that a state’s neutrality cannot be deductively constructed as a logical manifestation of secularism. In this context secularism means “a secular view of a lay public sphere as the only solution to ensuring genuine equality between members of majority and minority churches, agnostics, atheists or non-theists and eliminating religious and anti-religious tensions” (McGoldrick). For instance, in Sahin v. Turkey, the Grand Chamber explicitly embraced the narrative of the Turkish Constitutional Court that allied secularism with a defense of pluralism. Secondly, in Lautsi v. Italy, the ECtHR recognized the epistemic implications of pluralism. Pluralism as a legal concept demands the recognition of diversity and the acceptance of a dialogue that transforms a multitude of legal orders (and a plurality of perceptions of the good life represented by such a multitude), in procedures aimed at accommodating concurring individual rights. Concurring rights are granted to all (for example the right given to parents to choose the type of education for their children) but they might generate competing claims over public resources. The multiplicity of calls for recognition of individual rights makes it inappropriate and impractical for a state to favor one group over the other, leading instead to an open-ended dialogue in which institutions are, by default, receptive of all demands. McGoldrick calls this pluralist approach to faith based demands: “positively secular.” In this chapter, I argue that the recognition of pluralism and the democratic practices that qualify that pluralism should be a point of departure for the jurisprudence of the ECtHR in areas such as the display of religious symbols in classrooms. This approach serves as an alternative to the practice of balancing rights, which greatly restricts the breadth of religious freedom and de jure imposes a monist conception of rational thinking.

  • John Warwick Montgomery: “Restrictions on religious freedom: when and how justified?”

Part III: Enforcing and Motivating Human Rights

  • Hendrik Kaptein: “No human rights without retribution: plights and promises of redress as if nothing happened.”

Abstract: Human rights violations abound, notwithstanding well-nigh universal lip-service to their primary importance. Criminal and other legal practices fall far short of realizing full redress for such violations. Real redress or in fact retribution in its original sense implies restoring victims of human rights violations (and of any wrongful harm) to equivalents of their original rightful positions, “as if nothing wrong happened”. This essential aspect of respect for human rights ought to be part of the reform agenda for national and international legal practice.

  • Dallas Miller: “The motivation to protect and advance human rights: a faith-based approach.”

Abstract: The aim of my contribution was to analyze the impact of the Christian teaching, and more specifically Catholic doctrine, upon the contemporary human rights discourse. I have differentiated three main perspectives within which religious community may have an impact upon the social surroundings: general, specific and implementation function. Within a general function religious (ethical) community is perceived as a fundamental basis of morality. Within a specific function many religious communities provide their members guidance as well as detailed criteria concerning the required personal conduct within the public sphere. Within an implementation function religious community is entrusted with the burden of controlling the level of norms-observance among its members.


Menuge has brought together a first-rate, international set of contributors to advance our reflection on the foundation, nature, and importance of human rights. This book should be studied by all those interested in human rights and who take seriously the need to inquire into the basis and justification of those rights.
Charles Taliaferro, St. Olaf College, USA

Amongst the plethora of books on human rights, this book is remarkable. Firstly, it confronts two opposite and socially important perspectives of human rights: secular and religious. Secondly, it presents dialogues from both sides and the contributors present differing viewpoints on many issues. This is what makes the book especially exciting and I recommend it with a deep conviction.
Lech Morawski, Nicolas Copernicus University, Poland

Since the publication of the Universal Declaration of Human Rights in 1948, human rights have been an important element in bridging cultures. But what is the foundation of human rights? Can human rights be founded within secular culture or do we need religion for that? This is a central preoccupation in this interesting and important volume.
Afshin Ellian, Leiden University, The Netherlands

Taken together, the essays collected in Legitimizing Human Rights serve to remind atheists that if they insist on removing all traces of the law’s debt to the Biblical religions, they will have also undercut the most philosophically compelling grounds for upholding the idea of human rights.
Steve Fuller, University of Warwick, UK

One of the marks of an outstanding anthology is that its contributors confront the reader in such a way that he finds himself in an ebb and flow of dialogue, dissent, and agreement while paging through it. That’s how I found myself while reading this important collection. In an age in which religious belief is not taken seriously in the rarefied corridors of the academy, this book is a welcome contribution to the literature on human rights, theology, and religious liberty.
Francis J. Beckwith, Baylor University, USA