The idea of civil rights continues to arouse intense controversy. Despite the great advances in civil rights law during the past generation, American public life is still marked by severe disagreements over whether individuals and, especially, groups have rights to receive certain kinds of help from the state not only in the social and economic spheres but even in such matters as demarcation of voting districts and other political arrangements. The disagreements bear on the applications of certain basic principles of communal life and on the contents of the principles themselves.

In this paper I will explore four avenues. First, I shall briefly analyze some of the main elements in the concept of civil rights law in order to clarify why the law needs moral foundations, and how civil rights are related to the human rights that are the central concern of morality. Second, I shall show how the moral principle of human rights can itself be rationally justified. Third, I shall briefly develop certain applications of this moral principle to the economic problems that constitute some of the main areas of controversy in civil rights law. Fourth, I shall indicate how the moral principle of human rights bears on certain residual controversies about the applications of civil rights law to the problems of affirmative action and preferential treatment.

In the early 1960's, when the winds of change began to blow freedom into southern Africa, the causes of Africa's poverty seemed obvious. Since the turn of the century, colonial regimes had systematically disinherited and disenfranchised the black majority. As a result, while the region enjoyed a wealth of natural resources and, in a number of areas, developed industries and infrastructure, the majority of the population lived at the edge of subsistence.

By the mid-1980's, only South Africa and Namibia still labored under minority or alien rule. Yet even where countries had shed colonialism twenty years earlier, most people endured poverty and powerlessness. Their leaders had come into government promising a radical redistribution of power and wealth. That did not occur. Instead, the region's economies remained largely stagnant and dependent on unstable foreign markets, and the distribution of income and political power remained highly skewed. Poverty and inequality continued because of the failure to use the legal order—that is, the laws and regulations and the behavior of the relevant implementing and law-making institutions—to transform economic and social relationships.

Because of the disparate character of these papers, we have decided that Professor Gewirth and I would throw the discussion open immediately to the audience.

Dr. Gewirth, I was curious that you ended up opposing laws, on the one side, and morality, on the other. And you brought them into relationship by making morality a question of whether or not to obey the law. When you described the laws to us, it seemed that you had practically thrown them into the kingdom of utter darkness. You say they are transitory, etc. I was wondering why you did not use, as a critique of law, some kind of legal principle like justice. And, on the other side, when you talked about morality, it turned out to be something very abstract, very philosophical, very theoretical, and having little to do with actual morals. So, I am interested in the question of the relation between morals, on the one side, and law and justice and wealth. You see, in presenting morality you give no guidance to the poor lawmaker. All you do is tell us to disregard his law when he does it wrong.

The destruction of the state, the end of law, the dissolution of society, in which terms we can sum up the political situation today, what are these if not the end of the bourgeoisie as a class capable of guaranteeing order, of creating and keeping alive a state?

Antonio Gramsci, quoted in

J. Joll, Antonio Gramsci 77

(1977).

Oppression, it has been said, breeds resistance and struggle. This is a basic law of human development from time immemorial. Like everybody else, the oppressed and exploited peoples of South Africa yearn for and dream of freedom and justice. Though the intensity of their struggle ebbs and flows, crucial junctures have occurred during which years are the equivalent of decades in terms of the intensity of their resistance. During these critical periods, illusions, which otherwise could linger and foster acquiescence, die. It is this state of affairs that has existed since September 1984 when the South African regime moved its troops into the black townships in an attempt to crush popular resistance to apartheid. Eight months later, having failed to do so, the South African government declared a state of emergency on July 21, 1985. Since then, with the exception of a brief period in early 1986, the country has been under continuous rule by emergency power. The powers themselves have been expanded and made more draconian as the regime attempted not only to suppress resistance but to destroy alternative structures organized by the resistance.

The most dramatic development within the anti-apartheid movement in South Africa involves the growth of the black trade union movement. This movement's history (to be addressed later) goes back a number of years and had its first limited success during World War I.

The area of labor-management relationships in South Africa, particularly the development of trade unions, is one area in which the South African government can assert that it has made concessions of substance, albeit within carefully defined constraints. These concessions do not involve what is characterized as the so-called “petty” apartheid policies. They involve, instead, new legislation enacted in a series of statutes beginning in 1979. However, the concessions were soon constrained and limited because the black trade unions were and are operating in South Africa in the context of a number of policies and laws which do not fall under the rubric of labor law, but which nevertheless have a substantial impact upon the ability of the black trade union movement to function effectively. (Indeed, it seems apparent that the government is now curtailing union activities in political and other spheres as of this writing in February 1988.)

In this paper I want to present some background material about the interplay of religious concepts and rights theories during the Christian middle ages. We may note at the outset that there always were elements in the Judeo-Christian tradition that could be conducive to the growth of a doctrine of rights, especially the fundamental command to respect the person and property of our neighbor. Ronald Dworkin pointed out that the necessary basis of all other rights is an “abstract right to concern and respect taken to be fundamental and axiomatic.” The axiom entered the mainstream of medieval jurisprudence in the first words of Gratian's Decretum, the foundation of the whole subsequent structure of Western canon law. “The human race is ruled by two means, namely by natural law and usages. The law of nature is what is contained in the Law and the Gospel, by which each is ordered to do to another what he wants done to himself and is forbidden to do to another what he does not want done to himself.” Or in modern language, one might say, “Show concern and respect.”

The Western legal tradition was formed in the great revolutionary upheaval of the late eleventh and early twelfth century, when the papacy established its independence from imperial and royal control and its political and legal supremacy over the clergy of Western Christendom. It was then that there was first developed the modern Western belief in the autonomy of law, its professional character, its integrity both as a system of institutions and as a body of learning, its capacity for organic growth over generations and centuries, its conscious historicity, and its ultimate supremacy over political authorities. It was then, too, that the modern Western concept of subjective rights was first adumbrated—the rights of corporate bodies and persons to property and to liberties against other corporate bodies and persons, and even against superiors.

Politically, the Western legal tradition was rooted in the dualism of ecclesiastical and secular authorities and in the pluralism of secular polities—kingdoms and principalities, feudal domains, autonomous cities—within the ecclesiastical unity. Theologically, it was rooted in a concept of salvation, and of law as part of God's plan of salvation.

I am an ordinary worker who became part of the trade union movement in the early 1970's when South Africa was hit by a wave of strikes which eventually spread to the whole country. My experience of apartheid is a practical one. I never read about it in books. Instead, I am a direct product of that system.

I would like to begin by stating that trade unions in South Africa are as old as trade unions in North America. While black trade unions in South Africa were not legally recognized until 1979, black trade unionism dates as far back as 1919 when blacks were organized within the Industrial and Commercial Workers' Union (ICWU) which, at its peak, had 100,000 members. In the 1940's, many black unions existed and received guidance from the Council of Non-European Trade Unions (CNETU) which had emerged in 1941 as a coordinating body of black trade unions under progressive leadership.

Since 1984 South Africa has been marked by black violence and resistance, followed by repressive controls, stringent censorship, recurring states of emergency, and an embattled white regime. Many questions arise: is white rule in South Africa drawing to an end, or is the current violence part of the cycle of violence that has characterized South Africa under the apartheid regime? Is the present government able to institute constitutional changes that will appease black discontent and return the country to stability, or are these reforms reminiscent of the futile constitutional efforts made by white Rhodesians in the waning days of their rule? Is white South Africa ready to make far-reaching changes in the repressive apartheid system, or are there non-negotiables over which compromise is impossible? Are current efforts to return the country to order and stability inherently flawed because they seek to appease African discontent, while at the same time sustaining white power and privilege? Some of the answers to these questions are embedded in current political, economic and social directions within South Africa.

Joan in her last moments had wonderful contrition and broke out into words so Catholic and devout that they moved everyone in that great throng, including the English cardinal and many other Englishmen. She asked me to stay with her at the end and humbly begged me to go to a nearby church and bring her a cross, and I held it erect before her eyes, until her passing, so she could always and ceaselessly see the cross. In the middle of the flames, she never stopped confessing and crying out in aloud voice the holy name of Jesus Christ, or imploring most devoutly the help of the saints. As she expired and bowed her head, she professed the name of Jesus, a sign of the faith with which she was animated, just as we read of St. Ignatius and many holy martyrs.

The executioner came to me and my associate, Brother Martin Lavenu, immediately after the burning, impelled by a wonderful and terrible penitence. It was as if he despaired of receiving pardon from God after what he had done to her, who, as he said, was such a holy woman. He also affirmed that although he had several times put the wood and coals upon her entrails and heart, he could in no way consume her heart or reduce it to cinders; and at this he was amazed, as if it were an evident miracle.

What has happened here thus far is precisely what we needed to see: an analysis of what is happening in other parts of Africa and an honest exchange of views, including disagreements, in preparation for the kinds of discussions which must be undertaken right now about the future of South Africa. That is what I propose to address.

A couple of preliminary remarks, however. Let me thank Valparaiso University and the School of Law for inviting me and the other speakers. This kind of discussion is extremely useful. Also, I direct your attention to our symposium at the University of Pittsburgh scheduled for March 17-19, 1988, the third in a series of symposia addressing post-apartheid South Africa. The sessions are open to the public, registration is free and some of the participants here will present papers. At previous symposia, we have had people like Professor Bob Seidman and representatives of the ANC, the Pan-Africanist Congress, the Black Consciousness Movement, the United Democratic Front and the South African Council of Churches. Other participants have included Aggrey Mbere, Godfrey Sithole, Ben Magubane and Jacqueline Williams. In addition, people like Peter Mahlangu would make an important contribution in the area of future labor relations and labor legislation.

I want us to address a question or two to each other. I would like to begin with a bit of discourse with John Noonan, because there are two whole sides to the question of the Middle Ages and rights. There is a positive side that I was discussing—it is surprising the extent to which rights theories and rights practices did grow up. And, there is a negative side, and I ignored it because I knew John was going to do it, but it is equally important. Why did middle age theologians fail to recognize what is, to us, the most obvious right, that of religious liberty, when, to us, it seems that it is not just pragmatically useful, but, as John was saying at the end, that it is intrinsically right and follows from the precepts of the Gospel? But nobody in the thirteenth century grasped this, even though they had all the elements from which you can make a theory of religious liberty. Every decent theologian and canonist between 1150 and 1250 held that a person can not be forcibly converted to Christianity and that Christ will accept only a willing believer. Every one held that a person has an absolute duty to follow his own conscience, and to a twentieth century mind the obvious conclusion is, religious liberty is permitted. And, yet the thought simply never occurred to anybody. And, I think John might even have put the case more extremely. It is not just that Thomas Aquinas got it wrong, that buried in his books he made intellectual errors. Every single commonsensical, kind, decent person in the thirteenth century thought it was obviously necessary to repress heretics. I am going to ask John why, at the end of all this.

Welcome back to the afternoon session. We would now like to entertain questions from the audience, as well as questions from our scholars.

Mr. Neuhaus referred to Dr. King in his remarks, but in a sense the question is to the whole panel. I wonder, since the emphasis was on civil rights, why there was not a bit more inquiry into the black religious experience as a foundation for civil rights. And, specifically, I wonder why there was not more inquiry into the role of 19th century black clergy, both antebellum and post-civil-war, in forming a moral consensus that led to such things as the passage of the civil rights act of 1975 and subsequent concern for civil rights legislation and some of the decisions of the Supreme Court which addressed those concerns. It seems to me that Martin Luther King is a relatively late figure to cite as someone who articulates the black perspective on religion and civil rights. He is, in some ways, the culmination of a long tradition, and I find that a singular omission, frankly, given the focus of the symposium.