Can international law be used to address conflicts that arise out of questions of the freedom of religion? Modern international law was born of conflicts of politics and religion. The Treaty of Westphalia, the seed from which grew today's systems of international law and international relations, attempted to set out rules to end decades of religious strife and war across the European continent. The treaty replaced empires and feudal holdings with a system of sovereign states. But this was within a relatively narrow and historically interconnected community: Protestants and Catholics, yes, but Christians all. Europe was Christendom.
To what extent can international law be an effective tool for delineating and protecting religious freedom around the world in the 21st century? In “Can God and Caesar Coexist?,” Father Robert Drinan sketches a preliminary answer. While Westphalia largely took religion out of international law, Father Drinan considers how international law may mediate and moderate conflicts over religious freedom.
It is an ambitious project. Father Drinan claims no simple solution, but rather offers suggestions on how to proceed. One central concept in his discussion is the establishment of an international tribunal to resolve conflicts over religious rights, much as the ECHR and the Inter-American Court on Human Rights ("IACHR") do for human rights more generally.
A tribunal focusing on the international law of religious rights has never existed. Faith in the work of international institutions, however, is a hallmark of mainstream international legal jurisprudence, particularly from the Victorian era to today, but with roots that delve much deeper into the earth of the profession. In this instance, is such faith misplaced?
Part I of this essay will consider Father Drinan's proposal as part of the "modernist" tradition of international legal jurisprudence. Aspects of Father Drinan's argument are especially similar to conceptions of international law elucidated by Hersch Lauterpacht, perhaps the greatest twentieth-century exponent of legal modernism. Both Lauterpacht and Drinan draw from a worldview defined by the European Enlightenment and the start of what is commonly called the Age of Reason.
After situating the proposals of “Can God and Caesar Coexist?” within international law's tradition, Part II will turn to a pair of relatively recent methods of criticizing the "traditional" view of international law: rational choice theory and so-called "critical" or new stream perspectives on international law. Although these perspectives have at times been linked with politically conservative (rational choice theory) and liberal (new stream) viewpoints, Part II will argue that they are better understood as atavistic conceptions of law that have earlier manifestations in the theories of the Enlightenment philosophes and of their Romantic critics. As such, legal modernism, new stream theory, and rational choice perspectives are methodological siblings, borne of the Age of Reason and now squabbling over the intellectual inheritance of their parents. They may be better off sharing the wealth and helping each other.
With this discussion as a base, Part III will return to Father Drinan's proposal and how it may profit from the perspectives of rational choice and the new stream. While new stream and rational choice theorists are each critical of the perspective of mainstream international law, each can learn from the other in considering how to address the sectarian struggles of today. We must trace the path from Lauterpacht to bin Laden, from the Concert of Europe to the era of Jihad vs. McWorld because, in the end, Father Drinan's project challenges us to consider how the tools of the Enlightenment apply to the Age of Terrorism.
Borgen, Christopher J., "Triptych: Sectarian Disputes, International Law, and Transnational Tribunals in Drinan's "Can God and Caesar Coexist?"" (2006). Faculty Publications. 121.