This article analyzes the historical sources and forms of human rights in Western legal and Christian traditions, and it identifies key questions about the intersections of Christianity and human rights in modern contexts. The authors identify nine distinctions between different conceptions of rights correlating with at least four types of jural relationships, and they argue that leading historical accounts of human rights attribute “subjective” rights too narrowly to Enlightenment and post-Enlightenment legal thought. Earlier forms of classical Roman law and medieval canon law, and legal norms developed by Protestant reformers of the sixteenth and seventeenth centuries shaped Western human rights regimes in historically important ways, anticipating most of the rights formulation of modern liberals. In response to contemporary scholars who criticize human rights paradigms as inadequate or incompatible with Christian faith and practice, the authors argue that rights should remain a part of Christian moral, legal, and political discourse, and that Christians should remain a part of pluralistic public debates about the appropriate scope and substance of human rights protections.

Many legal systems have foundational stories about their provenance, serving to heighten the stature and authority of the normative order. Yet, these primary myths are often complicated by secondary ones that describe later climactic moments. A prevalent plot of this latter kind involves a defiant political actor who contests the jurisdiction of the courts and relates the legal order's response to this daunting challenge. The crucible of struggle forges a formidable legal institution that can withstand assault or a weaker one that limply survives.

Such stories captivate the collective legal imagination of a paideic community, a process first analyzed by the late Robert Cover. Hence they are preserved, told, and retold. However, the morals of secondary stories are more variable. Precisely because they examine moments of disturbance and conflict their implications are frequently in dispute. Thus, the very act of narration aims to amplify core truths implicit in these tales and announce their essential lessons.

The narrative history of the epic “trial of the Judean king” among Jews in antiquity and late antiquity affords a striking instance of this phenomenon. Making a lasting impression on the Jewish legal imagination of this period, the trial's impact and perpetual legacy are nevertheless highly contested. While the enduring lesson of the trial revolves around the relationship between law and power, what that legacy is depends entirely on the way the tale of the trial is told and, perhaps more importantly, retold.

This paper argues that secular legal systems need a better defined space for freedom of conscience because this important right has been crowded out by both freedom of religion and freedom of thought. Based on the principles of the Protestant Reformation, American constitutionalism expanded the idea of freedom of conscience to the point of making it almost interchangeable with freedom of religion. On the other hand, international law, followed by European constitutional law, reduced the political force of the concept of freedom of conscience by assimilating it to freedom of thought. And yet freedom of conscience cannot be treated just the same as either religious freedom or freedom of thought. By nature, the secular legal systems of political communities are moral, but nonreligious. So morality and religion affect legal systems in different ways. For this reason, freedom of conscience and freedom of religion should be protected using different legal devices. The so-called privilege of abstaining (beneficium abstinendi) best protects freedom of conscience; freedom of religion, by contrast, is appropriately protected by what I call the religious exception (exceptio religiosa). The consequences of applying these legal tools in particular cases, and their proper scopes, depend on the constitutional model of the political community in question. But in general, an increasingly globalized, diverse, and multicultural society demands a wider application of both these legal tools.

In this essay, Archbishop Tutu explains how Christianity understands the inherent freedom, dignity, and human rights of each person to be a consequence of being created in the image of God. This idea contains radical liberative potential to challenge oppression and create structures for human flourishing. While Christianity has not always lived up to the liberative potential of its teachings, and too often has contributed to hatred, oppression, and violence, Archbishop Tutu argues, the power of religious voices remains essential in the struggle against oppression and for the protection of human dignity.

In Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008), cert. denied, 129 S. Ct. 2763 (2009), the Ninth Circuit seated en banc found that federal approval of a plan by a ski resort to make artificial snow with treated sewage effluent on Arizona's San Francisco Peaks, a mountain massif held sacred by the Navajo, Hopi, and four other claimant tribes, did not violate their religious liberty under the Religious Freedom Restoration Act (RFRA). The court accepted numerous factual findings about sincere religious exercise, but found federal approval of the scheme did not constitute a “substantial burden” on religion; rather, it only “decreased spiritual fulfillment” of tribal members. Despite a spirited dissent, the Ninth Circuit narrowly interpreted RFRA's language of “substantial burden” by making reference to the Supreme Court's 1988 holding in Lyng v. Northwest Cemetery Protective Association, 485 U.S. 439 (1988). This article shows how conventional wisdom about individualistic, subjective, and protean “spirituality” and in particular about “Native American spirituality” equips the court to denature highly specific and collective religious claims about the mountain by plaintiff tribes, and in turn to naturalize those claims as merely spiritual. Misrecognition of Native religions as Native spirituality then troubles the substantial burden analysis. While Navajo Nation suggests courts may never fully understand Native claims to sacred sites, the Supreme Court's 2014 holding in Burwell v. Hobby Lobby, Inc., 134 S. Ct. 2751, 2759 (2014), opens the door to revisiting the interpretive posture spelled out in Navajo Nation, and the Ninth Circuit's interpretive approach to “substantial burden” bears revisiting.

This article discusses Paul Ricoeur's moral philosophy as a tool for the mediation of international disputes. It argues that Ricoeur's hermeneutics provides a lens to examine how a mediator can use language to explore with representatives of the disputing parties a deeper sense of their histories as a pathway to creative imagination and problem solving. It shows how even, and perhaps especially, religious disputants can be led into a more profound sense of the complexity of their identity and history, in order to discover the sense of urgency and responsibility that opens disputants to imaginative steps toward peace and reconciliation.

In addition the article discusses Ricoeur's clear-eyed view of forgiveness as an important correction to modern-day uses of truth and reconciliation commissions. With this better understanding of the meaning and conditions of forgiveness in hand peacemakers will be able to help disputants design processes that are necessary for a lasting and just peace.

Finally it briefly discusses the challenges to applying Ricoeur's hermeneutics to international conflicts.

Oliver O'Donovan is mistaken to think that subjective rights are irredeemably bound up with Hobbesian individualism, but correct to criticize their abstraction from deliberation about a wider range of moral considerations. As Grotius's thinking shows, the existence of a natural, moral right against physical harm depends on the contingent presence or absence of morally significant circumstances. There is, however, an important distinction between natural moral rights outside a particular, effective legal system and positive rights granted by such a system. Positive rights are less contingent and more stable, because society thinks it prudent to bear the social costs of that stability. Take, for example, the positive right against torture. This is not based simply on the intrinsic evil of what is done to the tortured. It is based partly on the intrinsic evil of the sadistic motive of the torturer. However, this motive obtains only in some cases, not others. Let us distinguish the latter as cases of “aggressive interrogation.” There might be instances of such interrogation that are conscientious and morally justified, all considerations of social cost and risk apart. There is, therefore, no natural moral right against it. Nonetheless, its general legal prohibition under a positive right against torture is justified by the prudential judgment that any possible momentary advantages to national security are outweighed by the high risk of social and institutional corruption and its political costs. That said, extraordinary circumstances might still justify—morally—the rare violation of the positive, legal right.

The article discusses the question of how Israel ought to treat its minority religions and whether its actual policies towards them accord with her moral and constitutional obligations. The first part of the paper offers three arguments purporting to show that Israel is justified in granting privileged status to the Jewish religion over other religions, and rejects each of them in turn. In particular, it rejects the view that Israel is allowed to privilege Judaism over other religions as far as the funding of religious services and needs is concerned. Nonetheless, the possibility that, on the symbolic level, weak privileging of Judaism may be permissible is left open. The second part of the paper questions whether the State of Israel guarantees equal treatment to all religions, and the answer is in the negative. Finally, the paper discusses the religious freedom of non-Jews in Israel and the way it has been interpreted by the courts. It is contended that both in terms of the freedom of religion and in terms of the freedom from religion, the protection of non-Jews is somewhat weaker than that granted to Jews, a state of affairs that ought to be remedied.

As a religious law, adage, and recipe for generational reciprocity, the “honor commandment” looms large as a societal construct, especially with 76 million baby boomers in the United States approaching old age. This article explores how the honor commandment persists as a normative ethic in the lived practice of elder care and the ways that it is supported by, or at odds with, secular legal imperatives of elder care.

Much in the way that the biblical story of Ruth provides a broad interpretation of how to live the honor commandment, this interdisciplinary exploration is informed by contemporary experiences of elder care culled from ethnographic interviews as well as by theological, demographic, and legal source material. We argue that the honor commandment continues to support practical adherence to largely unknown legal obligations. Caring for aging and ill parents can impose burdens on the caretakers that secular laws often fail to alleviate, particularly because of changes in the structure of twenty-first-century families. We suggest potential reforms that could better facilitate honoring seriously ill elders and the grown children who care for them.

In this essay I offer a nuanced account of my critique of “rights” language. I argue that my primary concern is not to discount the usefulness of rights language in contemporary expressions of legal and moral duties. Rather my concern is with the overreliance on rights language such that it guards a society from acknowledging prior claims to a common good. Rights language has become too powerful when appeals to rights threatens to replace first-order moral descriptions in a manner that makes us less able to make the moral discriminations that we depend upon to be morally wise. Finally, I turn to Simone Weil and Rowan Williams, who both turn to the body to suggest a more constructive way for thinking about rights as attending to the body, which forces us to attend to contingency. Human contingency can help us resist abstractions that fail to properly account for and address bodily needs.

This article describes the culture of activist black Christian congregations that propelled campaigns to dismantle legalized racial segregation and advocate for equal justice. Historically, as the imperfections of American democracy were exposed, the most marginal people in the society acted persistently and repeatedly to extend the benefits of democracy to all citizens. The article highlights the distinctive social and intellectual contributions of the secular activist W. E. B. Du Bois and social gospel minister Martin Luther King. The author sees the contemporary discussion and faith-based mobilization around reversing mass incarceration as an outgrowth of the civil rights movement. Finally, the article suggests that leadership for the next global human rights revolution is likely to emerge from students and young leaders who are committed to radically inclusive conceptions of democracy, equality, and social justice.

Recently there have been calls from Islamic nations for the creation of a crime of “defamation of religion.” Austria already has such an offense: section 188 of the Criminal Code of 1974 prohibits giving “justified offense” (berechtigtes Ärgernis) by “publicly disparag[ing] or ridicul[ing] a person who, or an object which, is the subject of veneration of a domestically established church or religious community, or a dogma, a lawful custom or a lawful institution of such a church or religious community.” This has recently been applied to secure the conviction of an activist of the right-wing Freedom Party of Austria, who announced at a semi-public seminar attended by about thirty people, including one undercover journalist, that Mohammed was a pedophile. Drawing on the law of comparable jurisdictions, this article traces the history of the provision and considers how it is applied by the courts. In this article it is contended that this provision, while rarely used, unduly restricts public discussion. At the least, the provision needs both reinterpretation and amendment; international human rights sources suggest that repeal should be seriously considered given that the existing offense of sedition is available for serious cases.

The recent decision of the United Kingdom Supreme Court in Regina (Hodkin and another) v Registrar General for Births, Deaths and Marriages concerned the registration of the premises belonging to the Church of Scientology in London as a place of worship, specifically for the purpose of enabling a marriage to take place there which would be valid in law. This article examines the continuing significance of a registered place of worship in the English law rules on formalities of marriage. It provides a brief history of the role of religion in the solemnization of marriages in England and Wales, and the emergence of the “place of worship” as a constituent element in the celebration of a valid marriage. The role of marriage at a registered place of worship in the current legislation governing the formalities of marriage is considered, along with the impact on that scheme of the Marriage (Same Sex Couples) Act 2013. The exceptional character of the approach adopted by English law is highlighted by a comparative survey of laws on the solemnization of marriages, which also demonstrates some of the problems arising out of alternative solutions. Finally, recent attempts to reform the law are noted, followed by some concluding remarks on possible future developments.

This article examines the influence of the Magna Carta on the development of rights and liberties in the Anglo-American common law tradition, especially in the seventeenth century. Originally issued by King John of England in 1215, the Magna Carta set forth numerous prototypical rights and liberties that helped to shape subsequent legal developments in England, America, and the broader Commonwealth. The Magna Carta served as an inspiration for seventeenth-century English jurists, like Sir Edward Coke, and Puritan pamphleteers, like John Lilburne, who advocated sweeping new rights reforms on the strength of the charter. It also inspired more directly the new bills of rights and liberties of several American colonies, most notably the expansive 1641 Body of Liberties of Massachusetts crafted by Nathaniel Ward, which anticipated many of the constitutional rights formulations of eighteenth- and nineteenth-century America.

This article presents a case study of the influence of Muslim and Christian logicians on medieval Jewish law. The case in question is why it is a punishable offense for Jews to eat mammals that do not have either sign of purity—that is, neither have split hooves nor chew their cud—and the article examines the answers given by three medieval Jewish sages: Rashi, Maimonides, and Naḥmanides. The Written Law of the Torah explicitly allows the consumption of mammals, such as cattle, with both signs of purity. It also explicitly prohibits the eating of mammals, such as camels or pigs, with one sign but not the other. It does not, however, appear to explicitly prohibit the consumption of mammals, such as horses, with neither sign. Using a fortiori logic, Rashi derives a punishable prohibition against eating horses from the prohibition against eating camels and pigs. Maimonides ascribes this prohibition to the Oral Law of the Talmud. Naḥmanides, by contrast, attributes it directly to the Written Law without relying on either a fortiori logic or the Oral Law. This article argues that this solution was available to Naḥmanides because he adopted inclusive disjunction from Christian logicians, but it was not available to Maimonides because he adopted exclusive disjunction from Muslim logicians. The choice between inclusive and exclusive disjunction is shown to continue to be of importance in modern American law.

This study seeks to forge a new avenue of legal scholarship on the modern religious movement known as Hasidism. The paper focuses on Rabbi Shneur Zalman of Liady (ca. 1745–1812)—Hasidic master, religious thinker, and jurist. Much has been written on Shneur Zalman, his formidable leadership in the face of strident opposition and his groundbreaking religious philosophy. His legacy continues to animate contemporary Judaism, primarily through his spiritual heirs—the Lubavitch Hasidic community—and through his Hasidic thought known as Chabad. The present study maps out an aspect which has been widely neglected, but is nonetheless crucial to understanding this religious leader: Rabbi Shneur Zalman's legal activity. The first part of the study surveys existing research, assessing what has been achieved thus far, and what tools are available for further research. The second part of the essay highlights salient questions to be considered as part of a judicial biography, offering preliminary answers to these questions. The article concludes with the contention that without serious analysis of Rabbi Shneur Zalman's legal writings—or for that matter, legal writings of Hasidic masters in general—any intellectual history of this religious movement will be incomplete.

When this essay appears in print, it will be two years since the death of legal philosopher and constitutional law scholar Ronald Dworkin. One recurring reminder of the magnitude of that loss is the absence of Dworkin's regular, insightful essays for the New York Review of Books analyzing significant US Supreme Court decisions. Thus, when, last term, a closely divided (5–4) Court released its much-anticipated decision in Burwell v. Hobby Lobby, upholding a challenge by three for-profit corporations to the contraceptive coverage provisions (the so-called contraceptive mandate) of the Patient Protection and Affordable Care Act of 2010 (ACA), sadly missing in the flurry of commentary was Dworkin's assessment of the case. Readers of this journal may perhaps appreciate the allusion when I say that the decision prompted me to wonder, “What would Dworkin do?” That same question arose again when, on July 3, 2014, in Wheaton College v. Burwell, over a strong dissent by Justices Sotomayor, Ginsburg, and Kagan, the Court granted the emergency request of Wheaton College to be relieved from complying with the ACA's accommodation procedure for religious nonprofit organizations that object to contraceptive coverage on religious grounds, even before the lower courts had ruled on the merits of the college's claim.

According to a widely held view, Aquinas does not have a notion of subjective natural rights, understood as moral powers inhering in individuals. This article argues that this way of reading Aquinas is wrong, or at best, seriously misleading. Aquinas does identify the right, the object of justice, with the relation established between parties to an equitable exchange or interaction, and in this sense he identifies right with an objective state of affairs. But this line of analysis does not commit him to any particular construal of what constitutes a just relation. In particular, it leaves open the possibility that in some situations, the right, understood as an objectively equitable relation, presupposes that someone's claim of a right, is duly acknowledged. Moreover, in many contexts Aquinas says that individuals can claim certain liberties and immunities on the basis of some natural right, in terms that make it clear that these claims lie within the discretion of the individual. His overall conception of natural law and natural right implies that individuals can legitimately make certain claims by right, claims that emerge within some contexts and not others. He does not have a theory of rights, but neither do the scholastic jurists of the time, and his appeals to what someone can claim by right are reminiscent of their views. If they can be said to have a notion of subjective natural rights, the same can be said of Aquinas himself.