Were the exhortation to forebear conduct toward others that is hurtful to oneself not so often ignored in real life, its reiteration here would be wearisome. But phrased as Hillel—or as Matthew—does, it remains mostly an aspiration. In this essay, I place the prescription front and center by asking what it might mean, even in theory, to urge love for one's neighbors as for oneself in a pluralist, liberal democratic society. Is it even theoretically possible to achieve? Does it matter? Could it be realized if we treat everyone in exactly same way, and do so from within the same internally constructed frameworks that we bring to the rest of the world? Such a conclusion hardly seems likely, if love of one's neighbor contains a universal prescription for peaceful co-existence; we seem ill-prepared as a public to facilitate the norm. Hillel's vision, rooted in Leviticus, thus partakes of both the trivial and the majestic: of the trivial because it appears as a vaguely-worded, uselessly abstract appeal devoid of substance; but at the same time there's deceptive majesty because the genuine enduring sovereignty of the idea, though often heavily weighed down by the earth's sometimes dreary trappings, is undeniable.

The Catholic Church claims a wide authority to make pronouncements on faith and morals, and have them respected by members of the church. The nature and extent of the respect to be accorded them is subject to considerable debate, some of it both extensive and acrimonious. It is claimed, to be sure, that certain pronouncements are infallible; if so, they are obviously beyond debate. But for most pronouncements no such claim is made. Furthermore, the question whether a given pronouncement is infallible or not is itself debatable, and can generally not be infallibly resolved.

We are confronted, therefore, with an array of assertions of varying provenance to which we are expected to give some measure of credence, even though we have no guarantee that they are true, or even that their authors are particularly well-informed. They take their authority from that of the church, which in its corporate capacity is the repository of God's Revelation, and the beneficiary of His guidance.

The human rights claim asserts that every human being has certain moral rights. There are two ideas here. The first is the universality of the claim: every human being, no matter how weak, detested or criminal, counts morally. The second idea concerns how they count. Unlike a person's vote, which counts but can be disregarded if outnumbered, a human right denotes an area in which the individual is supreme and inviolable: one's right to life ought not be sacrificed simply because a majority, or its interests, so demand. Any theory of human rights, then, must account for both of these aspects. It must give the right sort of answer to the two questions, “who counts morally” and “how do we count them?”

The dialectical opposition and interaction of the secular and the spiritual realms of life has deep roots in Christian thought. Jesus enjoined his challengers to “render unto Caesar the things which are Caesar's and unto God the things that are God's” (Matt 22:21). To his disciples he said, “That which is born of the flesh is flesh, and that which is born of the Spirit is spirit” (John 3:6), and “except a man be born of … the Spirit, he cannot enter the kingdom of God.” (John 3:5).

St. Paul, in turn, contrasted “the inward man,” who delights in “the law of God,” with one who is “in the flesh,” the law of whose “members” wars against “the law of the spirit” (Rom 7:5-7, 22-23). He listed among the “spiritual gifts” implanted by God in followers of Christ the gifts of wisdom, of knowledge, of faith, of healing, of miracles, and of prophecy (1 Cor 12:1-7). The spiritually minded inner-directed follower of Christ fights against the materialism of the unredeemed age, the time-bound world, into which he was born.

Four centuries later St. Augustine applied this concept to the society in which he lived, drawing a sharp contrast between the sinful and, indeed, Satanic character of the temporal “earthly city” and the purity of the eternal “city of God.” For St. Augustine, both the church and the empire lived in an evil age, in hoc maligno saeculo, in which the true Christian, whether priest or layman, was, in effect, an alien. In Peter Brown's words, “For Augustine, this saeculum is a profoundly sinister thing. It is a penal existence … it wobbles up and down without rhyme or reason.” In the City of God, on the other hand, Christian spirituality, for St. Augustine, was effectuated through the “vestiges” of the tri-une God implanted in human memory and imagination, human reason and understanding, and human desire and love.

Michael Perry has written a nuanced, insightful, provocative, often sensible, frequently convincing, and ultimately perplexing book. I am not sure what his thesis is. Since he titles the book as a series of “inquiries,” perhaps he doesn't have a unified thesis, or need one. And as an extended set of ponderings over the complexities of defining and defending human rights, this book certainly “works.”

The book's apparent thesis is set out in the introduction and repeated frequently thereafter: that it is not possible to understand talk about human rights, such as that contained in the International Bill of Human Rights, in secular terms. Instead, “the idea of human rights is … ineliminably religious.” This is so because the idea of human rights requires affirming that each person is “sacred” in relation to a holistic view of the world and its meaning, so that there are certain things that should not be done to and that should be done for any person. The only sort of view of the world and of the person within it that can ground the idea of human rights is a religious view, Perry suggests; there is no secular equivalent.

In The Moral Tradition of American Constitutionalism H. Jefferson Powell relies on the work of philosopher Alasdair MacIntyre to argue that American constitutional discourse is an intellectual tradition which has reached an unresolvable epistemological crisis. Accepting this crisis, Powell narrates a Christian theological response to that crisis. This article continues to struggle with the questions that Powell's work has raised, seeking to add to Powell's arguments regarding a significant breakdown in constitutional adjudication, to consider what might be labeled as “MacIntyrian responses” to that crisis, and, finally, to present a further Christian theological response to the crisis.

In the first section, I will make the argument that there has been a significant breakdown in the constitutional tradition. This claim is supported by a summary of Powell's argument regarding an epistemological crisis in constitutional law, consideration of the Court's recent trend towards acting with a politicized understanding of adjudication, and analysis of the Court's establishment clause jurisprudence. Section II presents three proposed tradition-dependent responses to constitutional interpretation: the first, a self-styled Aristotelian mode of adjudication; the second, Yale constitutional scholar Jed Rubenfeld's “commitmentarian theory” of adjudication; and finally Phillip Bobbitt's Wittgensteinian rejection of justificatory theories themselves. In considering these responses critically, I will maintain that each fails insofar as they remain at the level of theoretical abstraction without suggesting what substantive community, other than the tradition-rejecting tradition of liberalism, could inform a tradition-dependent mode of adjudication.

The heart of Michael Perry's argument lies in his claim that “every human being is sacred” and, that being the case, it follows that there are “some things that ought never (for example, under any circumstances or conditions) to be done to any human being or some things that ought always (under all conditions) to be done for every human being?” The “foundational” claim is that every human being, because sacred, is owed a certain regard and that this regard, in our time, has taken shape as, and congealed around, the idea of human rights. The dignity of the person, in other words, is a necessary prior assumption from which rights derive. The ontological claim, or to put it in a similar if not identical way, certain anthropological presuppositions, necessarily ground any sustainable human rights argument. It is possible, certainly, to make human rights claims on purely conventional grounds or, in more “Rortyesque” language, as just the way we do things around here. But that claim is not sustainable over time, argues Perry. It follows that “there is no intelligible (much less persuasive) secular version of the conviction that every human being is sacred; the only intelligible versions are religious.”

It is often noted that the term “ts'daqah” is derived from the Hebrew word for “justice.” However, this observation is rarely accompanied by a historically valid definition of the sort of justice assumed to inform Jewish sources on the issue. The dichotomizing of “ts'daqah” and “charity,” commonly offered in place of such a definition, oversimplifies the complex connotations of both terms. The observation that “justice” is “obligatory” or “compulsory,” whereas “charity” is a voluntary act of love, also falls short. It is true that halakhah tends to be expressed in terms of obligations rather than rights, and that this tendency has played a major role in shaping rabbinic sources on support of the poor. As Moshe Silberg notes in the course of his analysis of the moral underpinnings of Jewish law, “[the halakbah] is not primarily concerned with the indebtedness to the claimant, but with the obligation to the debtor, with his religio-moral obligation … and it is only as though in a side effect, as a secondary result of the process, does the claimant receive his money.” Nevertheless, “obligatory giving” is by itself an incomplete characterization of the conceptual structure of ts'daqah.

Moreover, beyond these theoretical considerations, confusion concerning the meaning of ts'daqah also has practical implications. The term is frequently misapplied by Jews to describe any contribution to a not-for-profit organization (excluding taxes), regardless of how the contribution is actually used. Jewish communal fund-raisers regularly refer to contributions to sundry funds and projects as ts'daqah, whether the ultimate destination of a contribution is assistance to poor people, construction of a new swimming pool at a Jewish community center, or the salary of a fund administrator.

Michael J. Perry's The Idea of Human Rights: Four Inquiries is a major contribution to the clarification of the idea of human rights, which he considers to be, for many, the most difficult of all the influential moral ideas to take center stage in the twentieth century. He argues that it is, “in one form or another,” an “old idea” and opens his Introduction with a quotation from Leszek Kolakowski dismissing the assertion that “the idea of human rights is of recent origin.” For someone who is as ready to admit being a “secular enthusiast of human rights” as the author of this comment, Perry's denial of the fact that human rights constitute a recent phenomenon certainly “poses a problem.” The problem is really essential with regard to Perry's foundational conviction advanced in Chapter I, where he claims that the idea of human rights is ineliminably, inescapably, religious, and that so is the view that “every human being is sacred.”

Near the beginning of The Idea of Human Rights, Michael Perry states that “One of my principal goals … is to clarify and address the unusually murky subject of ‘moral relativism’—and to do so from the perspective of what can properly be called ‘natural law.”” This he defines, following D.J. O'Connor, as a view according to which “basic principles of morals and legislation are, in some sense or other, objective, accessible to reason and based on human nature.” Subsequently, he explains that the relation between belief in natural law and in human rights is one of presupposition; that is to say, a doctrine of natural rights presupposes the moral realism which in his view is the central core of natural law theories.

As his discussion makes clear, Perry's claim that human rights presuppose a natural law should be understood as a theoretical claim. At the same time, it raises interesting historical issues. That is, when we examine classical accounts of the natural law, are these explicitly linked with doctrines of natural or human rights, or something recognizably similar? (Throughout this paper, I treat the terms “human” and “natural” rights as synonyms.) And more generally, what can we learn from the ways in which our forbears drew connections, or failed to do so, between a natural law and human rights?

This essay must begin with a point of clarification that is critical for those unfamiliar with Islam. While it is my belief that the view I present represents an Islamic position on Affirmative Action, I make no claim to represent the Islamic position. For far from constituting a monolith, as American public perception has it, the Muslim population in the United States is a heterogeneous amalgamation of somewhere around six million people. And while it is true that as Muslims—immigrant and native-born—they share a common scriptural heritage and, to a significantly lesser extent, a common intellectual one, it is also true that their lives, and hence their priorities and thinking, are informed by historical, cultural, political and social realities that are in many instances unrelated to each other and in some instances diametrically opposed. On such recognition, it should not stretch credulity to imagine a Muslim adopting a position on a topic like Affirmative Action that is, on the one hand, diametrically opposed to my own yet, on the other hand—at least prima facie—equally justified in its claim to be Islamic. In the present atmosphere, where Western ignorance and bias only adds to the tendency among Muslims to react in ways that promote rather than discourage stereotyping and essentialist readings of Islam, it would seem only fitting to insist that before we rush to catalogue the Islamic position on a matter like Affirmative Action, we first hear from a lot more voices from within the Muslim community.

On the grounds of an (essentially) Roman Catholic moral theology and political philosophy, Michael J. Perry states and argues for positions that vindicate the accent of recent popes on human rights as both a matter of faith and of reason—positions I believe to be largely valid and that could gain even stronger support from a Reformed Christian philosophical theology. This should not be surprising, for the Catholic tradition was the common tradition for centuries, it deeply stamped the legal structure of the West that gave rise to “rights talk,” and those strands which led to human rights in its modern form were implicitly in it, even if they were strengthened by the struggles of Protestants to establish a right to convert and, later, to advocate the freedom of religion on spiritual, intellectual, and organization grounds. Perry knows, as most Catholic and Protestants believe, that social morality is unavoidably linked to religion, that these matters can be discussed in public discourse, and that it is fateful for politics, law, social well-being and international relationships to do so. These matters are made clear not only in this book, but also in his earlier Love and Power: The Role of Religion and Morality in American Politics, The Constitution and the Courts: Law or Politics and Religion in Politics: Constitutional and Moral Perspectives. In the present book, as in the other remarkable products of this decade, we find Perry engaged not only with contemporary political philosophy and jurisprudence, which are largely secular in outlook, but with a number of scholars who are concerned with what David Tracy has called “public theology,” a term which several Protestants as well as Catholics have adopted—although in somewhat different ways.

In this article I argue that an accommodationist approach to Church-State relations provides the most appropriate interpretation of the Irish Constitution. This accommodationist interpretation is however incompatible with Ireland's system of almost exclusively denominational education, in which denominational schools of all the Churches are funded.

To present all the details of this argument requires a lengthy, at times detailed, at other times an only too brief summary of features of Irish law and the educational establishment. The key points to bear in mind during this presentation are the following.

The schools which educate most children until the age of 18 are usually owned by different religious bodies, and have a particular denominational ethos. In Ireland we term these “denominational” schools. Only a small number of schools are multi-denominational or non-denominational. All schools, provided they have adequate local support, and adhere to national curricula and standards, receive State funding on a non-discriminatory basis. Even though they are owned by private bodies, there is massive State involvement. The State pays for almost all of the current running costs of these schools, and makes a significant contribution to the capital costs. The State also plays a major role in designing curricula and syllabi for the courses.

This educational system, which has developed along these lines ever since 1831, has only recently come under sustained legal scrutiny. The 1937 Irish Constitution provides for judicial review and our judges have often been active in using constitutional rights and principles to correct public policy, which strays from the constitutional path. However it offers no clear answer to the obvious moral issues raised by the educational system: the text recognises the right to education, the right to religious freedom, the principle of non-endowment of religion. However it also endorses state deference to parental wishes in the field of education, and explicitly sanctions state aid for denominational schools.

Michael Perry's The Idea of Human Rights raises important and difficult issues. One such issue, reformulated, is whether the latter half of the twentieth century has witnessed both the rise of human rights language in international law, and the erosion, if not the collapse, in the intellectual sphere of the theoretical underpinnings of human rights as traditionally understood. This is part of a broader tension, in which the advance of broadly liberal values has coexisted with increasing skepticism about the objectivity of ethics, freedom of the will and genuine moral responsibility, meaningfulness in a natural order, and the irreducibility of mind.

One of the more beautiful and impressive structures in Washington, D.C., is the neo-classical Supreme Court building, located just east of the Capitol. Upon entering the marble columned courtroom, a hallowed place where notions of law and justice have been defined for more than sixty years, one's eyes are inevitably drawn to the frieze that borders the ceiling some fifty feet above. Encircling the courtroom from a lofty perch, as if symbolizing a heavenly host, are the carved images of eighteen great law-givers, ranging from Hammurabi and Justinian to Blackstone. In the very center of the relief, high over the seat of the Chief Justice, is a symbolic figure balancing a rounded tablet containing ten Roman numerals. The image is as unmistakable as the message it portrays: the Ten Commandments, a religious document central to Jewish and Christian faiths, is being offered as a primary source of American law.

It is axiomatic that many of the principles contained in the Ten Commandments are fundamental to the Western legal tradition. Prohibitions on murder, theft, and perjury are found in nearly every legal code. Notions of respect for one's parents and admonitions against adultery are also implicit, if not explicit, in the quasi-legal realm of normative rules that order many societies. Few people, if any, would dispute that the Ten Commandments—and its parallels from other ancient cultures—as well as other directives contained in the Pentateuch of the Hebrew and Christian Scriptures, inform our notions of right and wrong and, as such, have influenced the development of Western law of which the American legal system is part.

I am deeply grateful for this symposium on The Idea of Human Rights. I am especially grateful to Marie Failinger, co-editor of the Journal of Law and Religion, who conceived the symposium and then brought it to fruition.

I am also greatly honored by this symposium. In particular, I am honored that the contributors to the symposium are thinkers whose own work I esteem.

I have learned from experience that my engagement with critical commentary on my work is much more likely to be genuinely productive on my part if I do not rush to respond. I am especially wary of rushing to respond at the present time, because for the past few years I have been in the grip of two sets of issues very different from those I addressed in The Idea of Human Rights. For now, suffice it to say the contributors to this symposium, each in her or his own way, have both broadened and deepened my understanding of the issues I addressed in The Idea of Human Rights. When I revisit those issues, as I expect to do in the next few years, I will turn to the important, difficult questions and arguments pressed by the symposiasts in the preceding essays. As Jean Bethke Elshtain, for one, has emphasized in her contribution, there is much more work to be done—important work.

Paul Schmidt “came to work uneasy about what might happen.” To avoid losing his job, he had done as much as his conscience would allow. Now on December 19, 1941, faithful to his beliefs as a Jehovah's Witness, Schmidt refused to salute the flag in order to keep his well-paying job. He was a journeyman window-glass cutter at the Pittsburgh Plate Glass Works No. 12 in Clarksburg, West Virginia. The day before, workers at the plant had conducted a flag-salute ceremony at the end of the workday, and the company's managers encouraged all employees to attend. Schmidt and five other Jehovah's Witnesses, in an effort to avoid a conflict, left work before the ceremony started. Schmidt was first of those workers to lose his job for adhering to his beliefs; over the next several days, the other Jehovah's Witnesses were fired or resigned under pressure because others in the plant refused to work with them. On December 24, Schmidt's son, Bernard, was the last Jehovah's Witness to be fired.

The firing of Paul Schmidt and his struggle to defend his religious liberty provide a valuable case study of a citizen pursuing his rights in the face of seemingly insurmountable odds. Schmidt, a journeyman glasscutter and a factory worker, was clearly intelligent, but not an intellectual. He was not a theologian or philosopher pondering the meaning of religious doctrine; he was an ordinary working man striving to practice his beliefs in daily life. His efforts to regain his job demonstrated how legal rights can be expanded by a non-lawyer, by someone who was concerned not with points of law, but with the pursuit of justice. He aggressively sought legal protection for his right to freely exercise his beliefs and was undaunted by the ineffectiveness of most of the avenues he pursued. Schmidt's insistent, unflagging demands resulted in an unprecedented use of administrative law to expand protection for religious liberties.