Of Prophets and Proselytes: Freedom of Religion and the Conflict of Rights in International Law

Abstract

The case of proselytism presents a tangle of competing claims: on the one hand, the rights of proselytizers to free exercise of religion and freedom of speech; on the other hand, the rights of targets of proselytism to change their religion, peacefully to have or maintain a particular religious tradition, and to be free from injury to religious feelings. Clashes between these claims of right are today generating acute tensions in relations between States and peoples, a state of affairs starkly illustrated by the recent Danish cartoons controversy. Irrespective of their resolution in any particular domestic legal system, how should such conflicts be addressed as a matter of international law? In noticing that surpisingly little attention has been paid to this question in the literature, this Article argues that the key to unlocking the puzzle is to recognize that the right to freedom of religion and belief generates competing claims not only with other fundamental rights such as free speech, but within the right to religious liberty itself. This insight suggests at least three challenges to theories of rights in the Lockean and Kantian traditions: first, the problem of the incommensurability of values which the liberal algebra of rights is unable to reconcile; second, the complex conceptual problems associated with rights foundationalism; and third, the intrinsic value of communal goods and their relationship to personal autonomy. Once these limitations and blindspots in rights discourse are acknowledged, a value pluralist approach is argued to offer a preferable path by allowing us to reimagine liberal theory in intersubjective and hermeneutic terms.

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