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Litigating ReligionsAn Essay on Human Rights, Courts, and Beliefs$
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Christopher McCrudden

Print publication date: 2018

Print ISBN-13: 9780198759041

Published to Oxford Scholarship Online: March 2018

DOI: 10.1093/oso/9780198759041.001.0001

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The Ontological Problem

The Ontological Problem

Chapter:
(p.101) 6 The Ontological Problem
Source:
Litigating Religions
Author(s):

Christopher McCrudden

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198759041.003.0006

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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