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Can God and Caesar Coexist?: Balancing Religious Freedom and International Law

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Father Robert F. Drinan—priest, scholar, lawyer, politician, activist, and ethicist—has spent his life working to strengthen human rights. In this important book, Father Drinan explores the state of religious freedom worldwide, arguing that international law and legal institutions have not gone far enough to protect religious freedom. The international community, says Father Drinan, has been slow to recognize the urgent need of balancing the requirements of a pluralistic society...

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Can God and Caesar Coexist?: Balancing Religious Freedom and International Law

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Overview

Father Robert F. Drinan—priest, scholar, lawyer, politician, activist, and ethicist—has spent his life working to strengthen human rights. In this important book, Father Drinan explores the state of religious freedom worldwide, arguing that international law and legal institutions have not gone far enough to protect religious freedom. The international community, says Father Drinan, has been slow to recognize the urgent need of balancing the requirements of a pluralistic society with the demands of religious freedom.

Despite numerous proclamations from the United Nations and from individual nations about the importance of religious freedom, says Father Drinan, there is still no covenant, legally binding instrument, or world tribunal to monitor freedom of religion. Drinan explores the status of religious freedom in certain Christian, Muslim, Jewish, and Communist societies whose doctrines may promote intolerance. And he asserts that the silence of international law allows nations to continue to punish persons who practice a faith viewed unfavorably by the government.

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Editorial Reviews

From the Publisher
"A unique and persuasive personal statement that effectively demonstrates that international law has never done very well protecting religious freedom. Father Drinan's enterprise is intelligent, humane, and perceptive."—Mark W. Janis, University of Connecticut School of Law

"No one is better placed than Robert Drinan to tackle the intersection between religious freedom and the public world. In this book he does that incisively, making complex issues accessible and abstract problems personal. Religious freedom may constitute the greatest challenge of our age. In Father Drinan we have an astute guide at hand to lead us on our way."—William F. Schulz, Executive Director, Amnesty International USA

Mark W. Janis
“A unique and persuasive personal statement that effectively demonstrates that international law has never done very well protecting religious freedom. . . . Intelligent, humane, and perceptive.”—Mark W. Janis, University of Connecticut School of Law
John T. Noonan Jr.
No universal formula exists to cover all conflicts between faith-driven behavior and what a particular society will demand. If the American experience is taken as example, evolution of a global consensus will be slow. In the meantime, believers will suffer the cost of discipleship (the Christian shorthand for the cost is the cross) without support in international law. Drinan's unsparing analysis permits no more optimistic conclusion.
— The New York Times
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Product Details

  • ISBN-13: 9780300100860
  • Publisher: Yale University Press
  • Publication date: 10/28/2004
  • Pages: 272
  • Product dimensions: 5.90 (w) x 8.50 (h) x 0.80 (d)

Meet the Author

Robert F. Drinan, S.J., professor of law at Georgetown University Law Center, has had a long and distinguished career. He has been a visiting professor at four American universities and dean of the Boston College Law School. He was a United States Congressman for five terms as a Representative from Massachusetts. He has served on public and privately sponsored delegations and human rights missions to many countries and has been a member of numerous committees devoted to the furtherance of human rights. Father Drinan has received numerous awards, the most recent being the 2003 Franklin and Eleanor Roosevelt Institute’s Freedom of Worship medal. He is also the author of eleven previous books.

Drinan was also awarded the 2004 ABA Medal, the ABA medal recognizes exceptionally distinguished service to the cause of American jurisprudence.

"In an amazing career that has spanned more than half a century, Father Drinan has never faltered in his extraordinary humanitarian efforts and support for justice under the law. He has demonstrated to lawyers what it means to be committed to public service and to countless law students what is embodied in the highest dedication to ethical, moral legal practice. By his standards of leadership, he contributes to the luster and dignity of our award," said Archer in announcing the selection.”—From the ABA Award presentation

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Table of Contents

1 A new global right : religious freedom 1
2 The dimensions of the freedom of religion and of conscience 8
3 Religion in the structure of the United Nations 30
4 Religious freedom in the United States 48
5 Religious freedom and the European Court of Human Rights 86
6 Vatican II vigorously defends religious freedom 96
7 The rights of dissenters 113
8 Religious freedom and issues of gender and sexuality 134
9 When governments repress and persecute religion 151
10 The People's Republic of China and religious freedom 165
11 Religious freedom and the Muslim world 181
12 The world's Jewish community and religious freedom 191
13 Questions of God and Caesar 212
App. A United Nations declaration on the elimination of all forms of intolerance and of discrimination based on religion or belief (1981) 247
App. B Vatican II statement on the Jews 253
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First Chapter

Can God & Caesar Coexist?

Balancing Religious Freedom and International Law
By ROBERT F. DRINAN, S.J.

Yale University Press

Copyright © 2004 Yale University
All right reserved.

ISBN: 0-300-10086-8


Chapter One

A New Global Right: Religious Freedom

Scores of constitutions drawn up since the end of World War II have proclaimed religious freedom as one of the most fundamental rights known to humanity. Similarly, international covenants of human rights have exalted the right to religious liberty as a privilege that is so foundational and precious that it should be guaranteed by international law.

Support for the right to practice the religion of one's choice is very new in human history, and it prompts dozens of questions. If the new right to religious freedom were accepted and enforced, for example, would the world be spared the savagery of wars prompted at least in part by the clash of religious beliefs?

The worldwide spread of national and international commitments to religious freedom also begets a host of questions. Can the governmental and other bodies that support this right believe that the absolutism with which most religious bodies have traditionally promulgated their beliefs is now so diminished that the adherents of most religions would not seek to impose their views on others? Is agnosticism now so widespread that neither believers nor nonbelievers have the certainty that is necessary to seek to impose their religious views by force? Whether or not this is the case, the origins and implications of these unprecedented world commitments to protect religious freedom deserve intense scrutiny and evaluation.

Support is not universal, and resistance to ensuring religious freedom must also be evaluated. China and India, for example, are not open to witnesses of religions that are not indigenous to those countries. Similarly, the forty or so nations that contain the world's billion Muslims are not always receptive to religious beliefs or bodies whose teachings are, at least in part, contrary to Islam.

In other words, although the vast majority of nations have made a commitment to religious freedom, it is unclear how those nations actually behave in respect to creeds and cults that are at variance with their historic cultural and religious beliefs.

One would like to think that wars inspired by religious zeal were safely in the past. Clearly they are now forbidden by customary international law; after all, the 191 nations that have ratified the United Nations covenants on political and economic rights have solemnly pledged to refrain from such wars. But the international machinery to prevent them is very new and still feeble.

The ultimate reasons why religious freedom is cherished so widely and so deeply today need to be explored and amplified. At its most superficial level, the right to the free exercise of religion is a rule of expediency that can be traced to 1648, when the Peace of Westphalia restored to Lutherans the free practice of their religion in the Holy Roman Empire and extended it to the Calvinists, while recognizing that the dominant religion of a nation normally forms the core of the church-state relationship in that country. Given the presumptive power of the religious majority, religious minorities are protected by the general right to religious freedom. This rule, with some modifications, may be agreeable to the nations of Europe, the United States, and the Commonwealth, but the concept sometimes lacks legs elsewhere.

Of every hundred people on Earth, nearly twenty are Muslim. The fifty-five nations that make up the Islamic Conference are deeply divided over the question of religious freedom. Although most Muslims, if asked, would register disapproval of the Taliban's destruction of Buddhist shrines in Afghanistan in 2001, for example, there is nevertheless a consensus among Muslim nations that the secular state can embrace the full exercise of the rights and duties that derive from the Koran.

The uncertainty around the world concerning the extent to which governments should guarantee religious freedom is one of the major reasons why the United Nations has not pursued a covenant or a legally binding instrument on freedom of religion, as it has done with respect to such issues as the rights of minorities, women, and children. Similarly, that uncertainty is one of the principal reasons why it has never considered establishing a world entity to monitor compliance with the demands of religious freedom, as it has done to implement its covenants on political and economic rights.

As one contemplates the possibility of a world tribunal competent to adjudicate and penalize denials of religious freedom, one must reflect on Christ's predictions that his followers would be persecuted. Indeed, nothing in the New Testament is clearer. Given this received wisdom, why should Christians now seek assurances that they will not be harmed or treated as second-class citizens? In the early years after the Crucifixion, it never entered a Christian's mind-or anyone else's-to insist on the kind of right to religious freedom now set forth solemnly in several documents of the United Nations.

Christians like myself may be asked whether their desire to ensure religious freedom for all who have faith in any religion is at odds with their belief in Christianity. But this suggestion of a conflict of faith is not valid, because central to Christianity is the conviction that no one believes in Christ unless that person receives the grace to believe directly from God. Christ made it clear to his Apostles and to all of us that he chose them, they did not choose him. Faith is not earned or merited; it is a gratuitous gift from God. A Christian may, and indeed must, desire that governments facilitate the rights of all persons who accept the gift of faith as it is offered to them by God.

To be sure, the Catholic Church did not always seek religious freedom for every believer. For centuries the Church held to the conviction that governments should be required to discourage and even ban not only non-Christian religions but any version of Christianity that differed from Catholicism. But in 1965 the Second Vatican Council radically altered that doctrine, so that now the Catholic Church strongly states that any governmental coercion of individuals to adhere or not to adhere to any religion is wrong.

By this policy, Christians seek to protect from persecution not merely themselves but all followers of all the religions of the world. Christians are well aware of Christ's words: "If they persecuted me, they will also persecute you" (John 15:20). The words Christ uttered just before this prediction are equally foreboding: "Because you do not belong to the world, and I have chosen you out of the world, the world hates you" (John 15:17).

People of faith are well aware of the complexity of the task of guaranteeing religious freedom. The second edition of World Christian Encyclopedia, issued in 2001, reports that 84 percent of the world's 6.06 billion persons declare themselves to be adherents of some form of organized religion. Fewer than 2 billion are Christian, and about half of these are Catholic. Muslims number 1.1 billion; Hindus, 812 million; and Buddhists, 359 million. The number of Jews throughout the world is estimated to be 14 million. Animists and others account for most of the rest.

The idea of creating some sort of international legal machinery to resolve clashes between these religious groups may seem quixotic. Indeed, some observers may have thought it unnecessary-but the genocide in Rwanda, resulting partly from religious differences, has gone far to change their minds. But there are alternatives. A unique trial in Belgium of persons who had fled from Rwanda drew on the four universally binding Geneva conventions of 1949 and led to the conviction of Rwandan nationals, including two nuns, in a foreign nation. Some could argue that this approach is preferable to the establishment of a world tribunal. Although the approach used in Belgium may be satisfactory in some ways, however, it by no means ensures uniformity, reliability, or predictability.

Most persons who speak out for religious tolerance may be vulnerable to a claim that they are biased in favor of their own faith. That charge could be made against me, for that matter: the objectivity of a person who by solemn vow is committed to the advancement of the Catholic faith and the interests of the Holy See can be challenged. But as we have seen, the Second Vatican Council made it clear that the Church does not condone any pronouncement or action that allows any shade of "coercion" for the advancement of the Catholic religion. It is certainly clear beyond question that since 1965, the Catholic Church has repudiated centuries of its customary practices, concluding that no government action that seeks to urge citizens to adhere or not to adhere to any religion may be condoned.

The idea of creating a world tribunal that would guarantee the free exercise of religion will elicit a strong reaction from both believers and nonbelievers. The world has welcomed the pronouncements of the United Nations committees that monitor the implementation of the political and economic rights to which the vast majority of nations have pledged their support. But an international entity sitting in judgment on the way these same nations regard religious freedom raises more serious misgivings, questions, and doubts. The feeling is somehow pervasive that government organizations-or even a transnational legal body-should not get involved in the religious practices of 84 percent of the human race.

But the world also remembers more and more vividly the tragedies brought about in the name of religion by the Crusades, the Inquisition, the persecution of the Jews, and the many wars over religion in Europe and elsewhere. Indeed, the contemplation of such transgressions led Pope John Paul II to apologize for the atrocities for which the Catholic Church can be held partly or wholly responsible.

The 172 nations that participated in the 1993 UN World Conference on Human Rights in Vienna repeated and reinforced the proclamations of world law in favor of religious freedom. But the Vienna Conference made no giant step forward in this area, as the participants felt that the threat to world religious freedom had subsided with the demise of the USSR.

Since then the hindrances to religious freedom in Sudan, Northern Ireland, China, Bosnia, and elsewhere have strengthened the position of those individuals, nongovernmental organizations, and nations that want greater global protection for the right to religious freedom. But the cry for the expansion of this right is not universal. Many people remain leery of the interjection of secular forces-however well-meaning-into the beliefs or doings of religious groups.

Americans generally share a profound distaste for any governmental ruling that could potentially coerce a religious group in what it will or will not do or may proclaim. Although there is no reason that the U.S. example should necessarily serve as a guide for the rest of the world, it does seem to permeate the global debate about what governments can or should do to maximize the religious freedom of persons who are confronted by open hostility because of their religious beliefs or conduct. It is to be hoped that the general international consensus supporting religious freedom will enable the international community to free itself from the vestiges of a past rife with religious persecutions and move toward a future of true religious freedom. The world faces both obstacles and aids as it embarks on this journey.

(Continues...)



Excerpted from Can God & Caesar Coexist? by ROBERT F. DRINAN, S.J. Copyright © 2004 by Yale University. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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