Witte’s Contribution on Human Rights and Religious Freedom
Nicholas Wolterstorff
The following is an adapted excerpt from the chapter “Witte’s Contribution on Human Rights and Religious Freedom” from the book, Faith in Law, Law in Faith: Reflecting and Building on the Work of John Witte, Jr. (2024). Reprinted under Creative Commons Attribution Non-Commercial License (CC-BY-NC). This is part of a series of Literature Highlights dedicated to celebrating John Witte Jr.’s work. Read more here.
In his extensive studies over the past thirty-five years of the Western legal tradition, John Witte has written more extensively about human rights in the tradition than about any other aspect. And what strikes one at once, when reviewing his essays and monographs on the topic, is that, almost always, religious freedom figures prominently in the discussion. The role of religion in the Western legal tradition, both as a shaper of that tradition and as shaped by that tradition, is a scarlet thread that runs throughout Witte’s work.
It would be possible to write about human rights in the Western legal tradition and say little or nothing about religious freedom; some writers have done exactly that. Not so Witte. He argues persuasively that it is not some personal interest on his part that accounts for the prominence of religious freedom in his discussion of rights but the subject matter itself. An analysis of human rights in the Western legal tradition calls for highlighting the role of religious freedom in that tradition.
The Rhetorical Distinctiveness of Witte’s Contribution
When one reviews the totality of Witte’s writings on human rights and religious freedom, a feature that jumps out as distinctive is that Witte always tells a story, a story rich in detail in some of his monographs, and with big sweeping scope in others. Whether he is conducting a granular study of some segment of the Western legal tradition, or presenting a comprehensive survey of human rights and religious freedom in the tradition, he is telling the story of how the “rich latticework”—his phrase—of human rights and religious freedom that we in the West currently enjoy came about. The story tells of the complex interplay among constitutions, laws, and judicial decisions; it tells of the formulation of abstract principles in constitutions, of laws putting those abstract principles into practice, and of judicial decisions interpreting those principles and laws.
Witte identifies six main components of the American version of this rich latticework: liberty of conscience, free exercise of religion, religious pluralism, religious equality, separation of church and state, and no establishment of religion. He writes: “These six principles—some ancient, some new—appeared regularly in the debates over religious liberty and religion-state relations in the eighteenth century.… They remain at the heart of the American experiment today—as central commandments of the American constitutional order and as cardinal axioms of a distinct American logic of religious liberty.”
There are high points in the story—primus inter pares of the high points being the Magna Carta and the legislation and judicial decisions that it spawned in the English-speaking world, along with the First Amendment to the United States Constitution and the new experiment in religious freedom that it unleashed. And as with any good story, there are subplots, twists and turns, fits and starts. Over and over, in the story Witte tells, things might have gone differently. The constitutions and charters might never have been adopted, the legislative applications might have taken a very different form, judges might have rendered decisions quite different from those they did render. Over and over, happenstance.
Paired with the bright story that Witte tells about the emergence of our rich latticework of rights and liberties is a dark story, a story of oppression, domination, prejudice and discrimination: places and times when rights and liberties were constricted, especially for religious dissenters and outsiders, for American slaves who were reduced to chattel, for women who were subordinated and deprived of their rights. Religious liberty clauses appear in constitutions and charters because, in the social context from which they emerged, there was a history of violations of rights and of constrictions of liberty. Religious liberty cases come before courts because some person or group of persons feels aggrieved; they believe they have been deprived of what they have a right to. Among the many admirable features of the story Witte tells is that the dark side of the story receives full attention; it is never obscured or hurried past.
Witte’s thesis concerning the significance of the right to religious freedom in the story of the recognition of human rights is that “The right to religious freedom has long been a foundational part of the gradual development of human rights in the Western tradition, and today it is regarded as the cornerstone in the edifice of human rights.… [F]reedom of religion embraces … freedom of conscience, exercise, speech, association, worship, diet, and evangelism; … freedom of religious and moral education, and freedom of religious travel, pilgrimage, and association with coreligionists abroad.” This is just the beginning of Witte’s list of the rights attendant on the right to freedom of religion, both for individuals and for religious groups.
The Polemical Significance of Witte’s Contribution
The story Witte tells, about the emergence and employment of the idea of human rights, has competitors. He writes:
“The history of Western rights is still very much a contested work in progress … , with scholars still sharply divided over the roots and routes of rights and liberties. Every serious new historian of human rights over the past century has tended to focus on a favorite period or person.”
Witte then lists the authors of thirteen narratives competing with his own. Most of the competing narratives are told by intellectual historians rather than legal historians. A signal contribution of Witte’s work is that it makes clear that telling the full story of human rights in the West requires that one attend not only to its intellectual history but to its legal history as well. There is a lesson in this for those of us who are theorists: do not assume that it is theorists who gave birth to such fundamental ideas as the idea of human rights; it may instead have been practitioners of one sort or another.
Witte’s work, in addition to its intrinsic significance, has polemical significance; directly or indirectly it serves to undermine the alternative narratives. Let me give some “body” to this dimension of its significance by citing the two most prominent alternative narratives and then pointing out how Witte’s work undermines both of them.
Some preliminary comments about terminology are called for. Prominent in the two narratives that I will cite is the distinction between subjective rights and objective right. A subjective right is a right that one possesses, a right that one has: one’s right to practice one’s religion freely, for example. Objective right, on the other hand, is right action: doing the right thing: the right thing for a burglar to do is to return what he stole or to make amends. Equally prominent is the distinction between positive subjective rights and natural subjective rights. A positive subjective right is a right that one has on account of its having been bestowed on one by some human action: some law, some promise, etc. A natural subjective right is a right that one has whether or not it has been bestowed on one, a right that one has “in the nature of things.”
In the literature, one finds the term “human right” often used interchangeably with the term “natural right.” (It appears to me that Witte uses the terms interchangeably). It is my own view that the terms should not be used interchangeably. A human right is a right one has just by virtue of being a human being. But there are rights one has “in the nature of things” that are not, in that sense, human rights—for example, the right of a child to be treated in certain ways by its parent(s). This is a right possessed by a certain kind of human being, viz., a child, not by human beings in general. Be that as it may, because the two terms are regularly used interchangeably in the literature, I will do so as well in what follows.
Each of the narratives that I will present affirms that the idea of objective right goes back into antiquity. What they claim is that it was only centuries later that writers systematically employed the distinctly different idea of natural subjective rights.
Witte’s Undermining of Two Alternative Narratives
A narrative alternative to Witte’s that enjoys considerable currency, especially in neo-Thomist circles, is that the idea of natural subjective rights was given birth by nominalist philosophers of the late middle ages, William of Ockham prominent among them. A narrative that enjoys even more currency is that the idea of natural subjective rights was given birth by the (supposedly) secular philosophers of the European Enlightenment whose orientation was highly individualistic. To see how Witte’s story undermines these two competing narratives, along with others, we must now have some of the content of that story before us.
In his masterful monograph, The Blessings of Liberty, Witte first retrieves the story of the gradual recognition of rights and liberties in the teachings of Jewish and Christian scripture, in classical Roman law, and in medieval canon and civil law. He then studies the development of rights and liberties in the Anglo-American legal tradition, from Magna Carta to seventeenth-century England and its colonies, leading up to the American Revolution. And he concludes by retrieving the teachings of the Protestant Reformation on natural law and natural rights, and the development, in early Protestant lands, of human rights and religious freedom. He writes:
“Some view human rights as a dangerous invention of the Enlightenment, predicated on a celebration of reason over revelation, of greed over charity, of nature over scripture, of the individual over the community, and of the pretended sovereignty of humanity over the absolute sovereignty of God.”
He wryly adds: “While such skepticism might make for good theology in some Protestant circles today, it is not good history.” In short, the systematic employment of the idea of natural subjective rights did not begin with the philosophers of the European Enlightenment. Centuries before the Enlightenment, the Reformers were employing the idea. Nor did it begin with William of Ockham. It goes back to the canon lawyers of the twelfth and thirteenth centuries, and back beyond them to the jurists of ancient Rome and to Jewish and Christian scripture.
The story Witte tells undermines not only these alternative stories of origins but also, at the same time, undermines the common charge that employment of the idea of natural human rights is intrinsically connected to a philosophy of possessive individualism. The Reformers were not possessive individualists; neither were the canon lawyers of the twelfth and thirteenth centuries, nor the Roman jurists.
It’s true that someone whose life orientation is that of possessive individualism may well find the language of rights useful for his purposes: he will insist loudly and exclusively on his own rights while ignoring the rights of others. But as I have myself argued philosophically, this, rather than being the home use of rights language, is an abuse of the language of rights. When someone comes into my presence, not only do I have rights vis-à-vis them but they have rights vis-à-vis me. The situation is symmetrical. And as for the supposed individualism of rights: it is sufficient to observe that social entities also have rights—families, schools, groups, corporations, etc. Philosophical reflection yields the same conclusions as Witte’s historical studies.
Special Protection for Religious Rights
Witte’s work has yet another important dimension of polemical significance. The millennia-long story Witte tells, about the persistent interweaving of human rights with religious freedom, constitutes a powerful case against the claim one hears nowadays that religion deserves no special protection.
About the discussions that led to the U.S. Bill of Rights, Witte writes: “One key to the enduring success of [the] American experiment in religious freedom lies in the eighteenth-century founders’ most elementary insight—that religion is special and needs special constitutional protection.” Witte notes that this claim, that religion is special and needs special protection, is questioned nowadays by a considerable number of political philosophers and legal theorists. Religion “has become obsolete in our post-establishment, postmodern, and post-religious age, these critics argue. Religion, they say, is too dangerous, divisive, and diverse in its demands to be accorded special constitutional protection.”
Alluding to his own research, Witte replies: “too many of these critical arguments fail to appreciate how dearly fought religious freedom has been in the history of humankind, how imperiled religious freedom has become in many parts of the world today, and how indispensable religious freedom has proved to be for the protection of other fundamental human rights in modern democracies.” Then, after openly acknowledging that religion has been responsible for many evils across the course of history, he composes an eloquent articulation of the contribution religion makes to the flourishing of individuals and to the common good. Religions “deal uniquely with the deepest elements of individual and social life.” Religious rights are paramount rights.
We would be much the poorer in our knowledge of the history of human rights and religious freedom, and in our grasp of their importance, had John Witte not devoted his prodigious skills and energy to exploring the legal history of rights and freedoms in the West. ♦
Nicholas Wolterstorff is Noah Porter Professor Emeritus of Philosophical Theology, Yale University. Among the thirty books he has authored are Justice: Rights and Wrongs (Princeton) and Justice in Love (Eerdmans).
Recommended Citation
Wolterstorff, Nicholas. “Witte’s Contribution on Human Rights and Religious Freedom.” Canopy Forum, August 15, 2024. https://canopyforum.org/2024/08/15/wittes-contribution-on-human-rights-and-religious-freedom/.
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