The Ontological Problem
The Ontological Problem
This chapter deals with the third of three problems that dominate religious litigation, the ontological problem, which arises in two particular respects in the relationship between human rights law and religion. The first respect is in the need to give content to the ‘human’ in ‘human rights’, and we see religions and legal interpretation giving diverse, and sometimes conflicting, answers to this question. One of the contested sites of this conflict is over how we are to understand the idea of ‘human dignity’, which is seen by several religions and by the human rights system as a foundational concept for the understanding of human rights. The second respect in which the ontological problem arises has to do with a specific element in what it means to be human, namely the place of religion in that understanding. Is religion central to our view of what it means to be human, and are protections for religion central, therefore, to the human rights enterprise? Or should we, rather, view religion as marginal, or even contrary to our conception of what it means to be fully human, and query whether religion should be part of human rights protections at all?
Keywords: human rights, religion, religious litigation, proportionality principle, legal interpretation
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