Communal Dimension of the Right to Freedom of Religion

Abstract

Right to freedom of religion is one of the fundamental human rights recognized in all general international human rights instruments. The basic standard which, with minor differences, is followed by subsequent instruments is embodied in Article 18 of the Universal Declaration of Human Rights. The Article speaks of the right as the right of everyone “to freedom of thought, conscience and religion". It further states that “this right includes … freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance" (emphasis added). Thus, the right is a complex right. This complexity arises not only from the fact that the right encompaces two internal and external elements (maintaining, adopting or changing a religion and manifesting it) but from the statement that it comprises both individual and communal or collective dimensions. The communal aspect of the right relates to freedom to manifest one's religion or belief. While the content of the right to freedom of religion is far from being settled, the communal dimension of the right seems to be the most controvercial. The law, doctrine and practice of international human rights do not shed much light on the content and extent of this dimension of the right. There are serious questions here. Does the communal aspect of the right give an entitlement to a community of a religion's believers to establish a political authority to enact, execute and implement the teachings of their religion? Does this communal dimension validates a legal system based on the rules of a particular religion? Put it another way, does the right to freedom of religion support the claim of a community to establish a religious state in order to give effect to or manifest the tenets of their religion? The answer to this set of questions is not clear. When the issue is put in a broader context it does relate to the question of the (in)compatibility of a religious state with human rights. This article is an attempt to put forward some reflections and remarks on the above series of questions. The author's argument is that the communal dimension of the right to manifest one's religion warrants the claim of the majority of a population to establish a religious legal system based on the teachings of their religion provided that the system does not come into conflict with other internationally recognized human rights.