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Traditionalist Religious and Cultural Challengers—International and Constitutional Human Rights Responses

Published online by Cambridge University Press:  19 March 2012

Frances Raday
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Abstract

The legal regime of human rights entitles individuals and groups to legal protection against the hegemony of the political majority, of the religious establishment and of other powerful social actors. This Article examines the way in which this protection is implemented at the constitutional and international levels. Within states, it is at the constitutional level that the supremacy of human rights is translated into a normative paradigm. However, within states there may be opposition to the human rights regime—pragmatic or ideological—from powerful lobbies: majoritarian or sectoral. This opposition may result in lack of political will to apply or enforce human rights through constitutional mechanisms. The author shows that, in contrast, the formulation of the human rights vision at the international level consistently underwrites the human rights of individuals and groups as against the power of traditionalist religious or cultural norms. She suggests that the future of human rights as a universal paradigm depends on the effectiveness with which international norms can be translated to the constitutional level thus suggesting a reversal of the previously observed process of translating from the constitutional to the regional.

Type
A Symposium on Constitutional Rights and International Human Rights honoring Professor David Kretzmer
Information
Israel Law Review , Volume 41 , Issue 3 , Winter 2008 , pp. 596 - 634
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2008

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References

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39 The Muslim Women's [Protection of Rights on Divorce] Act, 1986. However, High Courts have interpreted the Act's provision for “a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband” to mean that that a woman is entitled to during her iddat period very broadly to include amounts worth lakhs (hundreds of thousands) of rupees.

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1. 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 worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.

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The remedy of “exit”—the right of women to leave a religious order—is crucial, but it will not be sufficient when girls have been taught in such a way as to be unable to scrutinize the practices with which they have grown up. People's “preferences”—itself an ambiguous term-need not be respected when they are adaptive to unjust background conditions; in such circumstances it is not even clear whether the relevant preferences are authentically “theirs.”

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