According to our Christian tradition, based upon what we have already seen in the Bible, once it is established beyond doubt that a particular ruler is a tyrant or that a particular regime is tyrannical, it forfeits the moral right to govern and the people acquire the right to resist and to find the means to protect their own interests against injustice and oppression. In other words a tyrannical regime has no moral legitimacy. It may be the de facto government and it may even be recognized by other governments and therefore be the de jure or legal government. But if it is a tyrannical regime, it is, from a moral and a theological point of view, illegitimate.

The Kairos Document

It is our belief that civil authority is instituted of God to do good, and that under the biblical imperative all people are obliged to do justice and show special care for the oppressed and the poor. It is this understanding that leaves us with no alternative but to conclude that the South African regime and its colonial domination of Namibia is illegitimate.

Valparaiso University School of Law and the Christian Legal Society annually present a symposium on a critical public issue which is examined from a variety of perspectives. Between October 28-31, 1987, a major symposium was held entitled: “Perspectives on South African Liberation.” In the light of press and other media restrictions in effect since a state of emergency was declared in South Africa on June 12, 1986, and the banning of all political activity by 17 anti-apartheid organizations on February 24, 1988, it is crucial that the world community have access to current information and analysis concerning developments in that tragic land.

The Pretoria regime has renewed the state of emergency for a third year following an unprecedented three-day nationwide protest strike on June 6-8 by more than two million black workers mobilized by the Congress of South African Trade Unions (COSATU) and other anti-apartheid groups to protest the recent bannings, a proposed restrictive labor bill, the continuation of apartheid and the regime's violence. These comments are written on June 16, the 12th anniversary of the Soweto student uprising (now commonly known as South African Youth Day) as several million black workers again defied the regime by staying away from work in honor of the hundred of blacks killed following the 1976 protests against apartheid education.

In late 1983, the Columbus School of Law of The Catholic University of America was awarded a three-year program development grant by the Henry Luce Foundation, Inc. for the purpose of developing an interdisciplinary program in law and religion. Since its inception, the purpose of the program has been to encourage the study of law and religion through creative use of the resources of The Catholic University of America to bring together scholars and legal practitioners having an interest in law and religion to collaborate on research, scholarship and education programs.

To that end, the Columbus School of Law seeks to serve as a catalyst in developing proposals for funded research and as a clearinghouse for information and ideas on which interdisciplinary research projects can be based. The goal of the program is to draw together the resources and expertise of several disciplines and to focus them on issues of practical or theoretical importance in the development of law or legal policy relating to religion, religious institutions, public morality and ethics.

Including the symposium which appears in the pages which follow, the project has sponsored presentations dealing with religion and politics (October, 1984), trends in separation of church and state (February, 1985), as well as co-sponsoring the publication of Peace in a Nuclear Age: The Bishops' Pastoral Letter in Perspective (C. Reid ed. 1986).

The Symposium on The Religious Foundations of Civil Rights Law originated in response to an apparent crisis that has emerged in the Nation's understanding of civil rights law. The character of the crisis could be discerned in the exchange on abortion that took place between democratic vice-presidential candidate Geraldine Ferraro and Roman Catholic Archbishop John O'Connor in the 1984 presidential campaign. Brief mention of this political event provides a useful point of departure for reflection on the symposium.

The exchange between Ferraro and O'Connor caused protracted public debate about the correct relation of religion and politics. The purview of the debate extended to the relation of civil rights and religion, since abortion affected the rights of women and unborn children, and the candidate and the Archbishop had each related religion to these rights. But, as most commentators agreed, the debate did not shed appreciable light on the meaning or validity of civil rights law, nor did it notably elucidate the relation of civil rights and religion.

Before Americans fought their British parents for freedom, we black Africans had fought the Boers in several wars for the preservation of ours. Kings Tshaka, Sekhukhuni and Makhado were continuing where their foreparents had left off. Before today's racist Nationalist Party was born in 1914, we had already established, in 1912, the Native National Congress, today's African National Congress. Before I knew the word “politics,” I had already been uprooted with my community three times in 1951, 1959 and 1961, to make room for whites in newly declared white areas. Before I knew the word “torture,” I had witnessed the brutal beatings of men and women on farms in the Northern Transvaal. Before I knew the word “apartheid,” I had already been denied timely education and daily bread. Before I learned anything about percentages and equality, I already knew that “white” meant more food, more land, more money, more cattle, better housing, better schooling, better health facilities. Before I heard the word “terrorist,” I was already being terrorized. I was already being chased around in Louis Trichardt for a passbook, or for being in town after 9:00 p.m., or for fun. Before I knew the concepts of oppression and exploitation, I knew that our people were killed and buried on the Bethal potato farms.

From an Afrikaner perspective, a firmly established way of life is at stake in the crisis situation of South Africa. The ongoing struggle centers on two passionately held principles. Taken in tandem, these two fundamental convictions have over the years assumed a quasi-confessional status. The one is freedom (vryheid), the other identity (identiteit).

A fierce determination to preserve its privileged freedom pervades the Afrikaner community. They fought long and hard throughout the nineteenth and twentieth centuries to achieve liberation from the stranglehold of English domination and other opposing forces. Within the ranks of Afrikanerdom this hard-won freedom to exploit their own tradition is as clearly a self-evidently righteous cause as it is a self-serving one in the eyes of others. And they are not about to surrender it easily.

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports … let it simply be asked where is the security for prosperity, for reputation, for life— if the sense of religious obligation desert … and let us with caution indulge the proposition that morality can be maintained without religion. George Washington—Farewell Address

There is often a message in a title. The title chosen for the Symposium, “The Religious Foundations of Civil Rights Law,” is no exception. Though the initial impression of its meaning will vary in accordance with the interests of the individual reader, the basic message of the Symposium is a simple one: law and religion are fundamentally related.

I count it a privilege to have been asked by you to reflect on this subject matter which is of grave importance to Christianity as it is witnessed to within the policies of South Africa and America.

The subject matter is of grave importance primarily because one's faith is “de facto” the reference point for one's political statements and actions. Therefore, the Christian faith correlated to the events in South Africa should assist us in determining whether our actions are consistent with the Christian Creeds we confess.

Let us begin with the observable fact that faith is not dead …. Faith is not dead. Faith does with the truth of God not only what Mary, the mother of our Lord, did; it also does what the shepherds did. Peter and John said to the Jewish council: “We cannot but speak the things which we have seen and heard.” So, then, faith results in confession.

Getting our definitions straight is a necessary bit of throat-clearing before we get into the argument at hand. By law I mean the process that produces and sustains the formal and public rules by which we attempt to order our life together. Law is legislating, adjudicating, administering and negotiating the allocation of rights and duties, in the hope of preventing harm, resolving conflicts, and creating means of cooperation. So I am obviously speaking of law in a quite comprehensive sense.

As for transcendence, a number of other terms might be employed. We might speak of the ontological or metaphysical basis of law. Or, in the more classical tradition, we might prefer to speak of a hierarchy of goods from which law is derived and to which law is accountable. Whatever terminology we choose to employ, the point is that the law and laws are not self-legitimating. In fact, the very term “self-legitimating” is a nonsense term. Something can only be declared legitimate by reference to something else. Indeed, at the risk of seeming pedantic, it should be noted that the adjective “legitimate” is from the past participle of legitimare which means to make legitimate, and has as its first meaning to be lawfully begotten.

Before examining more recent developments, a historical perspective is helpful in coming to understand the emergence and evolution of liberation theology in South Africa. This perspective establishes the contrasts between the passivity of the churches - their flaccid social and political witness - during the first six decades of this century and what followed after the shootings at Sharpeville in 1960.

By the late 19th century, the white Dutch Reformed Churches (DRC) were intimately associated with the rise of Afrikaner nationalism and provided the initial institutional structure around which the volk gathered. As the 20th century unfolded, an Afrikaans language movement, the Afrikaner National Party, a secret society—the Broederbond (Brotherhood), separate volk schools, various welfare organizations and the Federation of Afrikans Cultural Organizations all helped to strengthen the white nationalist movement that was to capture the South African state in 1948. Afrikaner corporations helped to consolidate that power—SANLAM, VOLKSKAS and Federale Mynbou being pre-eminent. Afrikaner leadership was nurtured within the white trade union movement. Having gained control of the state, Afrikaners also came to dominate the civil service as well as the extensive parastatal sector of the apartheid economy. They established their ascendancy in the military and police. As Dr. Malan put it in 1938 when speaking at the centenary of the Battle of Blood River: “The Trekkers received their task from God's hand. They gave their answer. They made their sacrifices. There is still a white race. There is a new volk.” A decade later that nation had come to power.

Every legal culture has its fundamental words. When we define our subject this weekend as human rights, we also locate ourselves in a normative universe at a particular place. The word “rights” is a highly evocative one for those of us who have grown up in the post-enlightenment secular society of the West. Even those among us who have been graced with a deep and abiding religious background can hardly have escaped the evocations that the terminology of “rights” carries. Indeed, we try in this conference, to take alittle credit here and there for the lustre which the edifice of rights reflects, perhaps suggesting now and again that the fine reflection owes something to some ultimate source of the light.

Judaism is, itself, alegal culture of great antiquity. It has hardly led a wholly autonomous existence these past three millennia. Yet, I suppose it can lay as much claim as any of the other great legal cultures to have an integrity to its basic categories. When I am asked to reflect upon Judaism and human rights, therefore, the first thought that comes to mind is that the categories are wrong. I do not mean, of course, that basic ideas of human dignity and worth are not powerfully expressed in the Jewish legal and literary traditions. Rather, I mean that because it is alegal tradition Judaism has its own categories for expressing through law the worth and dignity of each human being. And the categories are not closely analogous to “human rights.” The principal word in Jewish law, which occupies a place equivalent in evocative force to the American legal system's “rights”, is the word “mitzvah” which literally means commandment but has a general meaning closer to “incumbent obligation.”

The distinctive contribution of Roman Catholic moral theology to public policy discourse has been to insist that it be open to conversation partners representing quite diverse religious and philosophical traditions. Thus Catholicism has what might well be considered a peculiar way of addressing “religiously” both civil rights and legislation: it dissociates the legitimation of rights and laws from specifically religious commitments. A key category in the Catholic approach is “common good,” as a normative description of social coherence; and its corollaries, including “justice” as its standard, mutual “rights” and “duties” as its constituents, and “public authority” and “law” as its guarantors. It is to the possible context and meanings of these terms that I wish to devote attention. Despite the fact that they are the focus of virtually all social theory in Catholic tradition, there is far from unanimity on their interpretation and implementation. I will focus on contemporary Catholic social thought, though I will refer briefly to some of its origins, especially in Thomas Aquinas.

The Kairos Document presents a theological response to the deepening political crisis in South Africa which has far-reaching consequences for the Christian community in South Africa. The Document is unique because prior to June 1985 the churches tended to reflect a typical, liberal response to the ongoing political crisis. Previous resolutions of the major denominations clearly evidence this viewpoint. The only exceptions to this pattern were the Christian Institute, the University Christian Movement and the Black Theology Movement in South Africa in the early seventies. When we met as a small group of Christians to respond to the deepening political crisis in South Africa, we were very much aware of the serious confusion within the Christian community. Moreover, we knew that the prevailing theologies of our churches exhibited inadequacies and limitations for helping the Christian community to engage in the struggle for liberation.

I was struck by a problem that I think applies to some extent to my own presentation as opposed to yours, Dr. Neuhaus. It has to do with this. You welcome the challenge to the, as you put it, intellectual nihilism of elite culture that comes from resurgent religion. I wonder, is the commitment to resurgent religion that you welcome and the kind of response that has to be given to it? Or, is it the concept to which resurgents are committed that you welcome? Because, if it is the latter, I would have a great deal of difficulty with the proposition.

Well, I would say it is primarily the former, that they are playing this role of forcing certain kinds of questions which, if they continue to be neglected, are going to lead us into even deeper trouble than we are in. I would quickly add that there are certain aspects in the content agenda of resurgency religion in American life, which I am very sympathetic to, most obviously the pro-life question, questions of educational diversity, and the empowering of parents regarding the transmission of values and education through choice, and I could go on and on. These are things that I think are probably very good and that will, in an ironic sort of way, end up revitalizing the liberal democracy which many of these people at least formerly rail against, especially the liberal part of it, and which their opponents in the world think that they are defending—for shorthand purposes one can say these opponents are the world of the ACLU-Planned Parenthood-Norman Lear's People for the American Way.

The eradication of apartheid in South Africa is a major item on the agenda of the international community. The apartheid system fundamentally threatens international peace and security. Moreover, human rights violations in South Africa indict a system of governance fundamentally incompatible with even the most limited interpretation of international law and morality under the United Nations Charter. Thus, the international community is being pressed to weave collaborative strategies to bring South Africa into compliance with contemporary international obligations and expectations.

In the international system, states and other actors commonly employ the bases of power at their disposal in logistic strategies designed to influence others to behave in ways deemed more consistent with their own interests or the common interest of mankind. The strategies invoked may be coercive or persuasive and may involve the use of military force, economic policies, diplomacy or ideology. With regard to apartheid, an increasing international consensus is emerging that the use of economic sanctions against the Republic of South Africa might best facilitate a political transformation from a racial oligarchy to a democratic state.

As a rule, in the Third World, social scientists and governments present their economic strategies in terms of national ends—typically, in the 1980's, as some variant of a supply-side, basic-needs or socialist approach. Similarly, in South Africa, the debate on policies to transform the economy away from apartheid often focused on the feasibility and desirability of different social systems. Yet each strategy originally arose out of a particular analysis of problems commonly afflicting Third World countries, including South Africa. Making that analysis explicit permits a more systematic evaluation of its applicability to South Africa and other countries. To facilitate such an assessment, this article reframes the three development strategies that rose to prominence in the 1980's in line with a problem-oriented, explanatory methodology, and suggests how each general analysis would apply in South Africa.

The historical has a way of not staying put. The materials which constitute the subject of historical inquiry, the public documents, texts, correspondence and artifacts associated with an individual or with a community may remain unchanged, but interpretation of those sources may vary from one generation to another. In the schoolroom textbooks of generations, the early settlers of the North American continent were noble minded immigrants, in the Old World persecuted for their religious faith and in the New bent on the creation of a more congenial society. A romantic view of the colonists may yet pero sist in the popular mind, but the principles which animated that colonial mind are far from accepted today. From the ranks of the reformers who settled in the New World between 1620 and 1630 emerged a theocracy which was to prevail in New England through the latter part of the seventeenth century and most of the eighteenth century. It was a theocracy that came to be replaced by a democracy for reasons internal to its own conception of God's plan for mankind.