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.

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.

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.

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.

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 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.

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.

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.

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.

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.

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.