From natural rights to positive rights
May I start with a global view of human rights, and then respectfully offer three program proposals for Bahá'ís to consider for the next 75 years. Human rights talk moves constantly between natural law and positive law, between good ideas and their implementation; but obviously rights presuppose law. Jeremy Bentham denounced talk of natural or divine (super-natural) rights as nonsense: rights need some means to enforce them. Do United Nations human rights procedures have the authority which Bentham and Bahá'u'lláh demanded? That is a question of political judgement more than of legal interpretation; and the political order is evolving. The United Nations is growing in resources and authority. Current criticism of the UN shows that people take it seriously, almost like a government. Rome was not built in a day, but the UN is now the focus of the world order envisaged by Bahá'u'lláh.
In the third regular session of the UN General Assembly, chaired by Herbert Evatt in 1948, the Assembly adopted three vintage Resolutions. The first, 190, declared that the Assembly is determined to build "a world order under law." Resolution 260 contains the Genocide Convention and commits the UN to defining its criminal jurisdiction, now manifested in the Draft Code of Crimes against the Peace and Security of Mankind 1991 and in the Bosnia and Rwanda war crimes tribunals at the Hague, Progress under Resolution 260 is properly cautions. Then Resolution 217 contains the Declaration of Human Rights and following Bentham, provides that the individual petition (i.e. some enforcement mechanism) is itself an essential human right. The booming UN human rights "industry" is our concern here.
The main constitutional authority for human rights work is the UN Charter. Articles 55 and 56 require the UN to promote human rights. This is not a mere power, it is an obligation (and a pledge) which member states give the UN. Article 2(7) provides that nothing in the Charter "shall authorise the United Nations to intervene in matters essentially within the domestic jurisdiction of any member state...; but this principle shall not prejudice the application of enforcement measures under chapter 7." So jurisdiction or sovereignty is shared between the nations and the United Nations as in any federation. And when the Security Council uses force, UN jurisdiction is unlimited. Human rights abuses rarely involve enforcement yet, though the Council uses armed force to deliver humanitarian aid. However, article 55 makes human rights a matter of UN, rather than domestic jurisdiction. In the sixties the UNAA agreed with Menzies that apartheid was a domestic matter; and a few states still say that about all human rights. So, while the law seems clear in making human rights a matter of UN jurisdiciton, the political judgement is not yet unanimous.
The manifest content of human rights instruments is intended to raise the status of individuals. There is a latent content too. Historic bills and declarations of rights are one device whereby a new political order establishes itself in the hearts and minds of the people: consider those we associate with the years 1215, 1689, 1789, 1791 and now 1948. Bentham also coined the term international law, which by his reasoning is also a nonsense term. International law is funny law: it rejects the world order, binds no one, ignores individuals, and thus does not address human rights. United Nations law will displace international law because UN law is being enforced and does recognise individual rights and liabilities. So the human rights movement is a peaceful revolution which is rewriting the social contract to diminish the finality of national sovereignty and to give increased sovereignty to individuals and to the UN. In Australia it incidentally centralises sovereignty from the states to Canberra. The paranoid gun lobby sees this shift accurately, and I have been characterised as a traitor for accepting it; international lawyers and UNAs often reject it because it challenges their national premises and pious altruistic anarchism. The new world order is a legal order importing the rule of law under a lawgiver. The pleonasms are necessary to those who resist this revolution.
Civil rights and developmental goals
There are two sorts of human rights: (1) human rights express the liberal idea of civil liberty, freedom from government interference (the libertarian emphasis), and (2) the socialist or social idea of developmental rights, claims or freedom to do or receive certain things. The libertarian approach is not all: some human rights (of children and the mentally ill, for instance) are secured by restricting licence. And I ask how we may have to inhibit and guide freedom of religion in order to protect a child's human right to a genuine choice of religion. Religious freedom is both a civil right and a developmental goal, and here I emphasise the latter side.
Let me illustrate five civil rights:
- In their very significant contribution to the World Summit for Social Development (Copenhagen, March 1995) Bahá'ís, echoing Bahá'u'lláh, urged "full equality between women and men, in all departments of life and at every level of society." But Bahá'ís discriminate by sex in education, marriage and inheritance. The Kitáb-i-Aqdas provides that the "training and culture of daughters is more necessary than that of sons." That seems patronising and unbalanced. "Membership of the Universal House of Justice is confined to men." The Awdas equivocates over polygamy, but not does not even consider polyandry; and a man may divorce a bride who he finds is not a virgin, but not vice versa. Abdu'l-Bahá said these sex differences are "negligible," but I query that.
- The laws of inheritance on intestacy favour males; and the male primogeniture over the residence discriminates also by birth order. The Aqdas says that "any heir who is outside the faith is regarded as non-existent and does not inherit." Testator's family maintenance law might override that religious discrimination.
- The Australian Constitution 1900s 116 aims to protect religious freedom; it stops Canberra establishing a religion, imposing a religious observance or requiring a religious test for any office or public trust. But our head of state, the British monarch, cannot be a Catholic. No wonder Britain had trouble governing Ireland. Bahá'ís suffer religious discrimination in the Islamic republic of Iran, as do non-Jews in the Jewish state of Israel.
- Criminal penalities raise human rights questions. The Aqdas provides that the penalty for manslaughter is to pay an indemnity to the family of the deceased. Jurists still flounder over the two relationships created by an offence which is at once both a crime and a tort - the criminal-victim dyad and the criminal-state dyad - and they typically suppress the rights of either the victim or the community. The Bahá'í rule provides justice for the victim, but may short-change the public interest. For murder and arson, the Aqdas is hospitable to the death penalty, but does not require it. Death is retributive justice for murder, but would normally be disproportionate for arson. Like the US three-strikes law and Plato's Athenian lawgiver, the Aqdas would reject a third-time loser, though the Note softens that law. The Covenant on Civil and Political Rights article 10(3) requires us to aim for reconciliation with even the worst criminal; and protocol 2 abandons the death sentence.
- Bahá'ís claim world citizenship. By that term, people generally mean a warm fuzzy cosmopolitanism, not citizenship in the usual sense of reciprocal legal communities between an individual and political order. Brave Bahá'ís might consider detailing a program to convert the former into the latter, i.e. to explore the conversion of benign attitudes into UN citizenship. Early rights instruments, still mesmerised by the nation, speak impossibly of a human right to a nationality without distinction as to national origin. The CCPR reduces the right to renounce nationality which was conferred in the UDHR, and we still have no right to renounce all nationality and still to have a political identity: we are still tied to a patch of soil like serfs. But people have found political identity also in relation to city states, feudal states, empire states, and now the world state. The UN has granted passports, laissez-passers and refugee permits, and will find better ways to recognise refugees directly, so that nationless need not mean stateless. Citizenship, or belonging, is the human right, and it is a basis of many political rights. It involves commitment to a political authority. So to what political order do world citizens give their loyalty? The United Nations is the only candidate. World citizens might pray: God save our gracious UN Secretary-General. As in any federal order, they need not reject local loyalty; though a law-abiding Serbian or Iraqi may suffer a conflict of loyalty when the UN imposes sanctions on his state. We have a tangible beginning of UN citizenship in the individual human rights petition, enjoyed now by well over a billion people. The Tasmanian gay Nick Toonen asserted his UN citizenship to beat a local law. The Aqdas condemns homosexuality.
Developmental goals: Beyond tolerance to understanding
UN General Assembly Resolutions 1510 and 1779, adopted in 1960 and 1962, seek action against three areas of group prejudice - national, racial and religious. The Convention on Racial Discrimination has made headway against what was endemic racism. But our identity is still enfeebled by exclusive nationalism. There is a vast, saving difference between today's world political order and the international society (the anarchic society of sovereign nations) which it is replacing. The ambivalent expression "international community" is a contradiction in terms, an oxymoron which obstructs the natural evolution from association to community, from confederacy to world union. Greece and Italy are not intercity societies; Australia is not an interstate community. The United Nations is now about where the USA was between 1783 and 1864. Confirmation of the UN as the undoubted central authority will probably be determined not by Charter amendment but (as for nation-states)-by war. Let us hope that war is not too big. The international is a client of the national; in calling the United Nations a foreign affair we alienate and diminish ourselves. Global thinking is not altruistic; on global issues it is the only way to advance our interests. The world community's compelling consensuses on crimes against world order and on human rights increasingly shape our lives now.
But my question here is how we can act against religious prejudice. In this Decade for Cultural Development 1988-97 and this Year for Tolerance 1995, let us analyse the terms of the right to education:
"education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace."
That should be chipped in marble over the portals of every school. I believe that human rights law requires schools and universities to teach religious understanding to cure the standard indoctrination in an exclusive religion.
I assume that all religions point to one spirituality, that everyone has the same spiritual impulse and capacity, that the principles of the spiritual life are universal, that spiritual fulfilment comes along several pathways, and that, like scientists, spiritual people do not claim a monopoly on those principles. Arnold Toynbee and Bernard Shaw envisaged one world religion; and rare people describe it: Joseph Campbell found common elements in the world's myths, and Whitall Perry and Bede Griffiths drafted global canons of scriptures. The US Institute for Global Ethics finds eight values endorsed by most religions and cultures: love, truthfulness, fairness, freedom, unity (cooperation, fraternity, solidarity, community, group allegiance, oneness), tolerance, responsibility, and respect for life.
Science has authority because it describes universal truths. The Aqdas says, "Consort with all religions with amity and concord." Concord includes singing and working in harmony, not necessarily in unison; but are our religious differences a productive diversity on incidentals or a discord on fundamentals? At Copenhagen Bahá'ís urged that, beyond fighting racial discrimination, we promote unity among the races. How do we work, similarly, for unity among religions? The Aqdas points out that past revelations of God are not final, and the House of Justice anticipates our removing "those elements of past religious codes that now constitute obstacles to" world unity. Some of our religious and political baggage has to be unlearnt and recast as we and society grow. Poetic imageries come and go; Greek myths and Arthurian legends flourish and fade. I see nothing sacred in the grisly terrorism called the Passover, the genocides and ethnic cleansing by which ancient Israel took the land of Palestine, or superstitions attached to the birth, life and death of Jesus. In Childe Harold, Byron wrote of:
"... the madmen who have made men mad
By their contagion; conquerors and kings,
Founders of sects and sytems."
Havelock Ellis said rudely that "The religious complexion of the modern world is due to the absence from Jerusalem of a lunatic asylum." The House of Justice says that "peoples, of whatever race, nation or religion, are being challenged to subordinate all lesser loyalties and limiting identities to their oneness as citizens of a single planetary homeland." Bahá'ís seek the unity of manking - community, not mere inter-group association.
But the Aqdas also insists that the Bahá'í revelation is final for 1,000 years, and that whoever claims divine revelation in that time will be punished mercilessly. Having been brought up narrowly as a Christian, I thank Bahá'ís for their bridge to Islam: it is a gift dearly purchased. Quakers, however, say there is that of God in everyone; there is revelation in every encounter. So a 1,000-year time frame seems pessimistic. And does that claim of infallibility for a millennium inhibit free speech? Do I offend your limits of tolerance?
The Copenhagen statement asks, "Why have spiritual issues facing humanity not been central to the development discourse?" I venture to answer: because religious leaders, who claim to be in touch with the infinite, rarely take even a global view. How then can we advance religion in the human rights agenda? Again Bahá'ís ask, "How much weight can be placed on a professed devotion to the principle of universal participation that denies the validity of the participants' defining cultural experience?" May I suggest: no more weight or respect than religions give each other. The House of Justice says that secular bodies "censor" religion. But religions anathematise each other; they deny the human rights to choice of religion and to education for religious understanding. In exasperation John Lennon sang, "Imagine: no countries, no religions." It is not censorship to judge or criticise the extravagant, the parochial and the eccentric as such. There is censorship at my university: the Melbourne University Act 1958 s19 provides uniquely that the university may grant qualifications "in any discipline except divinity." That assumes that religious dogma is unscholarly and divisive. I feel some qualification to comment, because criminology routinely reconciles dogma and science; and I hope open-minded ecumenical scholars will mount a case to amend s19.
UNESCO and human rights instruments promote both the world culture and local diversity. Cultural diversity speeds evolution and learning - if it is grounded in a recognition of our species identity. When peculiarity alienates us from the mainstream, we dry up in a billabong; if my defining experience rejects the ultimate validity of others' religious identities, I exclude and censor myself. Human rights are for humans. Not all defining experiences are sacred; and to people of faith and science, yesterday's defining experience or happy synthesis is just another hypothesis in the ceaseless dialectic of evolution. People sometimes look for pseudo-certainty by "submerging themselves in a crowd, a community, and defining themselves in contrast to other communities." Vaclav Havel says we need a civil society in which people act as citizens, and drive out intolerance and hatred. I can tolerate anything except intolerance! Havel says, usefully: "The central political task of the final years of this century is to create a new model of co-existence among the various cultures, peoples, races and religious spheres within a single interconnected civilisation." Does religion broaden our horizons or box us in? Bahá'ís show that religion can buttress global thinking. So can Bahá'ís detail a program to promote religious dialogue? Until Bahá'ís, multicultural Australia and UNESCO write a syllabus for a liberal religious education, lay teachers will have to impart their own views.
The various brands of petrol sell only because they all produce the same result; and religions all bring substantially the same gospel message of trust, meaning (perspective, appreciation), gratitude, hope, love and influence. William Whewell said education treats of universal truths. The last few words of CESCR article 13(1) establish a human right to education in the world order; but the dogmatic nationalism taught in schools of law and politics defines political reality in such narrow terms as breed group hatred. We pity the fate of Hutus and Tutsis bred for murder; but until Gorbachev we were planning a nuclear war that would have made all other genocides look like a picnic, and Australia is still in a nuclear weapon alliance. Universities worth their name will describe the universal view which obviates this fearful, faithless, idolatrous exclusivity of race, nation and religion, this crushing of rights which must evolve towards understanding and social participation.
The Convention against Discrimination in Education 1960 article I seems to require education in a world language (as the Aqdas recommends), an attempt at the values of the world culture, and thus an openness to religious diversity. The words understanding, tolerance and friendship import separate meanings and duties. Tolerance is a fallback position when understanding fails. Education must impart understanding - and tolerance and friendship among groups, and "respect for freedom of religion or belief of others" and for other "civilisations." Teachers and the media ought to disseminate material from a diversity of cultural and national sources. God as father, or mother, is a metaphor: God is gender-free and equally culture-free. And until religions accept that, who wants to hear from them? The science of religion is growing; it is universal, independent of the historic Christ and other prophets, and of subcultural trappings. The world religion will enjoy the authority of science and natural law. Christian Science and the cosmic Christ are not distinctively Christian. We speed common understanding by paraphrasing sacred writing in current idioms, and turning divisive dogma into detached persuasion. And the pathway to religious unity is not simply cognitive. Meditation, which transcends words and images, helps with affective and conative understanding.
Upgrading the 1981 Declaration to a Convention
The very title of the UN Declaration to Eliminate Discrimination and Intolerance Based on Religion or Belief 1981 focuses on double negatives, like fanciful UN plans to eradicate poverty, crime and illiteracy. We progress faster by setting positive targets. So I recommend that we upgrade the pioneering but negative 1981 Declaration into a binding Convention promoting religious dialogue. Religious tolerance is often sought on the basis that religious differences are irreconcilable. That insistence on tolerance can thus itself be bigoted and demoralising, exaggerating incidentals, refusing dialogue and thus denying spiritual meat. Such a Convention could dissolve xenophobia and produce a religious renaissance or reformation. "In this age of instant communications, rapid transport, a global economy and politics, and potential global annihilation, the desirability of worldwide religious understanding is self-evident." Evident to most people. Thanks partly to the spur of weapons, we have the healthy seedlings of the world political order. But if the forest is to be green, the trees must be green. When the world is uniting politically, economically, environmentally and on the Internet, can religion be far behind? Why is there no world religion? Because religious leaders damn the idea with faint praise: they cooperate on trivia, but ignore the commonality of their message.
Tolerance is a function of personality as well as intellect. Sects come from disinherited groups. A tolerant person enjoys secure, trusting and open relationships, accommodates subtleties and frustration, and takes responsibility when things go wrong. The Children of God cult in Australia teaches fear of society. Its secretive and deceptive ways, and obsession with security, cripple children intellectually and emotionally. Their children can go out only with a trusted member of the group. To guard against such child abuse, the state can require the children to attend normal schools, and encourage a liberal education in religious freedom. Sound education programs include democratic religious dialogue, conflict and tensions; significant diversity deepens and simplifies faith. Educated children savour differences as a promise, not a threat, as occasions for growth, not fear. Capable teachers reconcile differences. Schools with a wide ethnic mix may already do this, but how much understanding of Islam, Buddhism and Bahá'ís is taught in Australia?
Freedom of choice in religion via liberal schooling
Every adult has the human right of freedom to have or to adopt a religion or belief of his choice. But what about children? Irreparable damage is often done by hobbling children to an exclusive creed. A people may enjoy its own religion, and parents may choose a religious and moral education after their own convictions. "No person or group of persons should be compelled to receive religious instruction inconsistent with his or their conviction." A group can set up a private religious school if it meets public standards and helps children to understand the culture and language of the community as a whole and to participate in its activities. A child has "the right of access to education in the matter of religion or belief in accordance with the wishes of his parents... and shall not be compelled to receive teaching on religion or belief against the wishes of his parents..., the best interests of the child being the guiding principle." No less than an adult, a child has the right "to freedom of thought, conscience and religion," and parents are expected to direct the child in the exercise of that right "in a manner consistent with the evolving capacities of the child."
Freedom of speech, of association and of religion is subject to legal limits to protect others' human rights. Children need protection by parents and by the state, sometimes protection from parents or the state, and often from themselves. Is it safe to give any religion to children, or should we lock it away with other dangerous adult pleasures like the vote, guns, gambling, sex, alcohol and cars? The immature lack discretion and a critical faculty; they give imagery a misplaced concreteness, and swallow tribal legends as facts - which makes their religion an obstacle to the spiritual life. "The child shall be protected from any form of discrimination on the ground of religion" such as is likely to occur in segregated schools; and is to know "that his energy and talents should be devoted to the service of his fellow men." That last captures the nice sense in which Bahá'ís turn the human right to work into a duty to work. But kids need space to choose, not coercion or isolation in a closet; social interaction expands their horizons, knowledge and participation skills. The life of faith needs commitment and discipline, but not a closed mind. So we face a conflict of values, or rather, competing rights and duties of parents and adolescent children. Free speech permits foolish speech, but parents have no right to make their children bigots by denying them an effective choice of religion. In 1927 Freud accepted the cultural importance of religion, but sought "education freed from the burden of religious doctrines." Cultic instruction is an inferior education within the meaning of the Convention against Discrimination in Education. So how can kids exercise a choice which their parents reject? Only educated children can freely choose and change their religion. We can promote religious freedom via an attractive, liberal education which guides parental choice and discipline.
To sum up: Bahá'u'lláh was a Copernicus or Galileo of world order; and now we seek another Christopher Columbus to carry us across the ocean to the new world order, another Abraham Lincoln to consolidate political authority under the rule of law. Can the Bahá'í World Community develop programs to advance world citizenship in the normal sense of the word, devise a syllabus to promote religious understanding, and draft a Convention to promote serious religious dialogue? When astronauts circle Earth in two hours and Cable News Network shows us the news as it happens, I believe religion can speak with one voice on essentials. Differences enlarge understanding, but we have probably been too tolerant of the paradox of fearful and unkind religious dogma, too tender to bigotry. A decent education detribalises us, makes us humans in the world community, and will produce the world religion. That is a problem for those who resist the world culture, those dominated by a parochial guru; but exposure to the main religions will dissolve hostile myths and superstitions. Thank God for Bahá'ís who are "building anew the whole world."
1. Convention on the Elimination of Racial Discrimination 1965 [CERD] article 5(d), Declaration on the Elimination of Intolerance and of Discrimination Based on Religion or Belief 1981 [1981 Declaration].
2. The Prosperity of Humankind, 1995.
3. Kitáb-i-Aqdas [Aqdas], note 76.
4. Aqdas 52 and note 80.
5. Aqdas 63; Aqdas Synopsis and Codification [S&C] 4.C.1.b.
6. Aqdas Questions and Answers [Q&A] 47; S&C 4.C.1.n.
7. Aqdas 20, 25, 26; Notes 38-40, 44, 45; Q&A 53, 54, 72, 80; S&C 4.C.3.a,g,j,k. Compare the Covenant on Civil and Political Rights 1966 [CCPR] article 2.
8. Q&A 34.
9. See Pannam, "Travelling Section 116 with a US Road Map," Melbourne Univ Law Review, 4, 41, 1963.
10. Bill of Rights 1689, Act of Settlement 1702.
11. UN document CCPR/C/SR.1193 para 43 reports Iranian discrimination against Bahá'ís.
12. Israel's Law of Return 1950 discriminates by religion.
13. Aqdas 19, note 35.
14. Aqdas 62, note 86.
15. Aqdas 45, note 71.
16. Aqdas 107 bans paederasty, but Shoghi Effendi extended it to all homosexuality.
17. Ferdinand Toennies, Gemeinschaft und Gesellschaft, 1890.
18. Arthur MacMahon, Federalism Mature and Emergent.
19. UNGA Resolution 46/157.
20. UNGA Res 47/124. UNGA Res 49/213 invites NGOs to contribute.
21. A Treasury of Traditional Wisdom, Allen & Unwin, 1971.
22. The New Creation in Christ.
23. Melbourne University chaplain John Bodycomb.
24. Paragraph 144.
25. Aqdas, Introduction.
26. Aqdas, Introduction.
27. Aqdas paragraphs 37 and 162, and note 180.
28. Aqdas, Introduction, pages 12-13.
29. Peter H. Bailey, Human Rights: Australia, Butterworths, 1990, ch 2(5).
30. Czech playwright-president Vaclav Havel, echoing Erich Fromm, Fear of Freedom.
31. Concerning Liberal Education, 1845, in The Great Ideas Today 1991, Britannica.
32. C. Wright Mills, The Causes of World War 3, Secker & Warburg.
33. Aqdas 189.
34. Convention against Discrimination in Education article 5(1)(a), Covenant on Economic, Social and Cultural Rights article 13, Convention on the Rights of the Child article 29.
35. 1981 Declaration article 5(3).
36. Convention on the Rights of the Child article 29.
37. Convention on the Rights of the Child article 17.
38. Ted Noffs' creed put spirituality before religion: "I am a child of the stars. Like the clothes I wear, my religion will one day belong to the dust of the centuries. My spirit is immortal and belongs to the universe. I am a Catholic, a Protestant, a Jew, a Muslim, a Sikh, a Buddhist, a Hindu, because I am a human being and nothing in the world can be alien to me."
39. See UNGA Resolution 48/138. Compare the Declaration on the Rights of Persons in National or Ethnic, Religious and Linguistic Minorities 1992 (UNGA Res 47/135).
40. Reat & Perry, A World Theology, C.U.P., 1991. See Hans Küng, Global Responsibility: In Search of a New World Ethic, SCM, London, 1991; Marcus Braybrooke, Pilgrimage of Hope: 100 Years of Global Interfaith Dialogue, SCM, London, 1992; Dr Ray Anderson, Dean of Education at Chisholm, "The global connection: a vital element in social education," UNESCO Review Australia, 16, 1988; World Goodwill newsletter 1993(4).
41. Reinhold Niebuhr.
42. Gordon Allport, 1965.
43. CCPR article 18; 1981 Declaration article 1(1) and (2).
44. CCPR article 18.
45. CCPR article 27. Iran has ratified the CESCR, CCPR, CERD, and CRC. See UN comment on its periodic reports.
46. CESCR article 13.3; CCPR article 18.
47. Convention against Discrimination in Education article 5(1)(b).
48. Convention against Discrimination in Education articles 2(b) and 5(1)(c). UNESCO, Recommendation on Education for World Understanding, Peace and Human Rights, 1974. Stanley Johnston, "Education for Peace under United Nations Law," Ethos: Journal of the Victorian Association of Social Studies Teachers, 22-25, 1986.
49. 1981 Declaration article 5.2.
50. Convention on the Rights of the Child 1989 article 14.
51. Convention on the Rights of the Child article 15.
52. CRC article 14.3; 1981 Declaration article 1.3.
53. 1981 Declaration article 5(3).
54. Aqdas 33, 147.
55. CCPR article 18(2).
56. The Future of an Illusion, 1927, W.D. Robson-Scott trans., Doubleday Anchor, NY, 1957.
57. Aqdas, Introduction.