When the federal court declared Arkansas' “equal time” statute (requiring that public school science teachers present both creation and evolution “theories” in the classroom) unconstitutional, many citizens concerned with “keeping religion out of the schools” were relieved. A second look at that controversy, the parties involved, and the court's opinion, however, reveals an unsettled atmosphere. For a great many Americans in the Protestant evangelical tradition, the Arkansas experience was only the first round of a long legal fight, the opening battle of a war of worldviews. The matter is far from settled, not only because of similar “equal time” laws now being drafted, passed, or challenged, but because the advocates of such legislation have learned from the Arkansas failure: the earlier bill was not carefully worded, their position was not properly presented, and the trial judge was allegedly biased. The battleground has moved of late to Louisiana, where a new version of creation-science legislation is being attacked and defended, but McLean v. Arkansas Board of Education remains as the most recent full trial in the controversy.

Discussions about the historical meaning of religious liberty in the United States often generate more heat than light. This has been true in the broad discussion of the meaning of the First Amendment in American life. The debate between “separationists” and “accommodationists” is often contentious and seldom satisfying. Both sides tend to believe that a few choice quotes that seem to disprove the other side's position prove their own. Each side is tempted to miss the more nuanced story that is reflected in the American experience. In recent years, this division has been reflected among those who call themselves Baptists. One group, best represented by the work of the Baptist Joint Committee for Religious Liberty, tends to argue that the Baptist heritage is clearly steeped in the separation of church and state. The other group, probably best represented by the Ethics and Religious Liberty Commission of the Southern Baptist Convention, tends to reject the term separation and sees value in promoting an American society that “affirms and practices Judeo-Christian values rooted in biblical authority.” This group tends to reject the separationist perspective as a way of defending religious liberty. They argue that Baptists have defended religious liberty without moving to the hostility toward religion that they see in separationism. Much like the broad story of America, the Baptist story is considerably more complicated than either side makes it appear.

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?

In 1977, the Israeli parliament (Knesset) changed the section on abortion in the colonial criminal code which Israel inherited from the British mandate in Palestine. Like most other Western countries who relaxed their laws on abortion in the 1960s-80s, Israel made abortion legal for almost all women who seek it. Nonetheless, the Israeli law on abortion differs substantially from other nations' laws. In no stage of pregnancy does the woman have an absolute right to abort—she always needs an approval from a special committee; yet, the woman's stage of pregnancy is nowhere a relevant legal criterion for permitting or forbidding abortion. The law does not explicitly grant the fetus any value either, as the law speaks only of “termination of pregnancy.” Indeed, Israel has one of the highest rates of late abortions among the developed countries and one of the most liberal laws on the regulation of infertility treatments and research on extra-corporeal embryos.

Jewish religious law (Halakhah) ignores both questions central to the modern ethical, political and legal debate on abortion: the status of the fetus and the autonomy of women. Furthermore, Halakhah is not expressed in the language of rights, such as the rights to life and privacy, but rather in the language of obligations and limitations on action. A rich symbolic world of values and virtues complements halakhic positivist formalism by inspiring and demonstrating desirable ways of life and modes of valuing human action. Regarding abortion, the dialectics between Jewish law (the formal law, which delineates right from wrong) and morality (which inspires and portrays ideal modes of action as part of a largely oral tradition of private counseling and synagogue preaching) reach a powerful climax. The religious law prohibiting abortion is one of the most liberal among human legal systems, but the values of procreation and preservation of human life that inform the moral discussion are fundamental.

Theologians, law professors, and scholars are responding to Milner Ball's work. I, however, am only a country lawyer and preacher, a practitioner who strays each spring into the academy to teach and to learn.

Professor Ball graciously leaves a place for my kind, though. He observes that you cannot work out the law you conceive in an ethical vacuum any more than you can conceive it in an ethical vacuum. You must practice it. I comment as one who practices law.

I frequently represent persons accused of crimes. These accused citizens usually have given six or more statements to the authorities, each statement more incriminating than the preceding one. In these cases, the issue is not guilt, but sentencing. In short, the question is: What will the State of Tennessee do with the offender?

In many jurisdictions, including those where I most practice, the prosecutors and judges demand that offenders be placed behind the bulwark's bars for considerable periods of time. They typically understand criminal law as “the bulwark of freedom”:

The figures of both Moses and Muhammad stand in the United States Supreme Court, included among the great lawgivers of history depicted in two friezes along the North and South walls of the Courtroom. Moses, who is seen carrying the Ten Commandments, is honored as the “prophet, lawgiver, and judge of the Israelites,” with the Supreme Court's tourist information sheet explaining that “Mosaic Law” is “based on the Torah, the first five books of the Old Testament.” Muhammad is described as the “Prophet of Islam” and carries both a sword and the Qur'an, the “primary source of Islamic law.”

Yet the parallel depictions of these two prophets in the U.S. Supreme Court belie the very different respect that the laws they are associated with have received in the U.S. judicial system. Jewish law or legal principles are generally cited by courts with approval, often to add perceived moral and ethical authority to a court's decision. For example, in the U.S. Supreme Court's well-known Miranda v. Arizona decision, the Court declared that the privilege against self-incrimination was an ancient right, with analogues that could be found in the Bible, quoting the great medieval Jewish scholar Maimonides for support: “To sum up the matter, the principle that no man is to be declared guilty on his own admission is a divine decree.”

Is trial rhetoric, with its shadings, deliberate obfuscations, and outright deceptions, directly justified and limited by the same moral considerations which control important private conversations, where the same devices may sometimes be appropriate? Is a trial like any other dialogue that can be called moral? Or does such speech find its justification and limitations solely in its purely instrumental relation to the preservation of ordinary moral values—justice or respect for rights—as does killing in warfare? Is a trial lawyer's talking like a soldier's killing? But this cannot be right. Surely a lawyer's speech can contribute to a loss of life, liberty, or property, but dialogue, as the specifically moral medium of human relations, would seem intrinsically valuable, the preferred medium for things of public concern, the polar opposite of violence. Perhaps, then, the conversation which takes place in the courtroom is both controlled by internal, noninstrumental norms, as in the first view, and discontinuous with ordinary moral conversations, as in the second: a form of distinctively political argument, intrinsically valuable, not subject to ordinary moral stric-tures, a realm apart.

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.”