Religion and Human Rights: Global Challenges from Intercultural Perspectives 9783110348651, 9783110348118

Table of contents :
Table of Contents
Introduction
Human Rights and Globalization
The Sacredness of the Person
The “Universal Declaration of Human Rights”: A Confessional Basis of a Universal Religion?
Limits of the Culturally Relative View of Human Rights
Human Dignity and Human Rights
Homo Aestheticus within the Framework of Inhabitational Theology. An Anthropological Perspective on Identity and Dignity within the Human Rights Discourse
Human dignity, Human Rights and Socio-Economic Exclusion?
“Whose Law?” South African Struggles with Notions of Justice
The Role of the Church in Human Rights in a Democratic South Africa
HIV and AIDS as a Human Rights Challenge to Faith Communities in Pietermaritzburg, South Africa
The Role of the Eucharist in Human Dignity: a South African Story
Index of Authors

Citation preview

Religion and Human Rights

Religion and Human Rights Global Challenges from Intercultural Perspectives

Edited by Wilhelm Gräb and Lars Charbonnier

DE GRUYTER

ISBN 978-3-11-034811-8 e-ISBN (PDF) 978-3-11-034865-1 e-ISBN (EPUB) 978-3-11-038471-0 Library of Congress Cataloging-in-Publication Data A CIP catalog record for this book has been applied for at the Library of Congress. Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available on the Internet at http://dnb.dnb.de. © 2015 Walter de Gruyter, GmbH, Berlin/Boston Printing and binding: CPI books GmbH, Leck ♾ Printed on acid-free paper Printed in Germany www.degruyter.com

Table of Contents Lars Charbonnier and Wilhelm Gräb Introduction 1 Wolfgang Huber Human Rights and Globalization Hans Joas The Sacredness of the Person

7

25

Wilhelm Gräb The “Universal Declaration of Human Rights”: A Confessional Basis of a Universal Religion? 39 Sarhan Dhouib Limits of the Culturally Relative View of Human Rights Johannes Fischer Human Dignity and Human Rights

53

71

Daniel Louw Homo Aestheticus within the Framework of Inhabitational Theology An Anthropological Perspective on Identity and Dignity within the Human Rights Discourse 87 Nico Koopman Human dignity, Human Rights and Socio-Economic Exclusion? Dirkie Smit “Whose Law?” South African Struggles with Notions of Justice

131

149

Simanga Kumalo The Role of the Church in Human Rights in a Democratic South Africa Beatrice Okyere-Manu HIV and AIDS as a Human Rights Challenge to Faith Communities in Pietermaritzburg, South Africa 187

175

VI

Table of Contents

Johan Cilliers The Role of the Eucharist in Human Dignity: a South African Story Index of Authors

221

201

Lars Charbonnier and Wilhelm Gräb

Introduction

“[T]he contemplation of human rights is often at home in cases where the violation of these rights compels such reflection. Strong convictions of the inviolability of human dignity then ensue when this dignity is gravely violated and damaged. New values, as Hans Joas has shown, primarily form in cases where the grave contravention of such values triggers an evidential experience that at the same time carries emotional force. This correlation between the contravention and formation of values manifests itself particularly clearly in the histories of South Africa and Germany. In Germany, the late horror at the violent crimes of the National Socialist Regime has sparked a late devotion to human rights; in South Africa, the schooling in awareness of human rights is strongly bound to the system of “segregated development” (apartheid) and its overthrow. In both cases, a practice of marginalization is countered by a concept of inclusion. In both cases, therefore, human rights have strong appeal, because they have a fundamental feature that is universal in scope.”¹ It was with these words that the social ethicist and former President of the Council of the Evangelical Church in Germany Wolfgang Huber began his opening address to a lecture series at the Humboldt University which bore the theme “Religion and Human Rights.” The complete set of contributions to this lecture series, which was initiated by the Theological Faculty of Humboldt-University, are documented in this volume. It was held as part of the German-South African Year of Science that the Federal Ministry of Education and Research, in conjunction with the corresponding Ministry in South Africa, had declared for the year 2012/2013. Since the Theological Faculty was afforded the opportunity to be able to undertake this lecture series with financial support from the Ministry for Education and Science, the topic of human rights was, for the reasons stated by Wolfang Huber, immediately a serious consideration. The reaction to the crimes of the National Socialist reign of terror had led to the Universal Declaration of Human Rights of 1948 and, a little later, to the inscription of the inviolability of human rights into the Federal Republic of Germany’s constitution of fundamental rights. Orientated by this catalogue of fundamental rights, again, was the new Constitution of the Republic of South Africa that was introduced after the 1994 overthrow of apartheid. In both lands it was, as it were, the horror at the State’s

 See Wolfgang Huber’s article in this volume: Human Rights and Globalization, 7.

2

Lars Charbonnier and Wilhelm Gräb

violent crimes against its own citizens that unleashed the strength to not only lay down robust moral norms, but also to implement them constitutionally in fundamental law. In the traumatic shadow of their flagrant violation, human dignity and human rights had to be furnished with both a universal normative claim to validity as well as legal responsibilities that were protected by sanction. Since the German-South African Year of Science presented the Humboldt University’s Theological Faculty with the opportunity to undertake an event to promote the scholarly dialogue between the two countries, we resolved to make the question of human rights, their historical origins and – something that today, in the age of globalization, is more urgently than ever in need of discussion – their universal claim to validity the theme. At the same time, we wanted to inquire about the role of religion, or religions, when looking at both the historical origins and the real historical implementation of the idea of human dignity and of the declaration of human rights. After all, this role, as regards the historical origins of human rights declaration in connection with the American Declaration of Independence and the French Revolution, continues to be a subject of controversial debates. Christianity and its churches played a supremely ambivalent role during the National Socialist reign of terror in Germany, and then equally so during the time of apartheid in South Africa. In large part, churches did not stand up to racism, but even elevated it theologically. However, there were also engaged individuals and solidary groups in Church and theology who turned to resistance of the National Socialist Regime and who led the fight against apartheid. Here, criteria of Christian ethics played just as much a role as their own connection to the secular thinking on human rights. Of course, these points of historical background did not call for illumination in the German-South African dialogue which the lecture series documented here undertook to hold. Rather, it is the experiences throughout history, including the religious-historical and theological movements connected with these, which should be brought into the human rights discourse of today. That is why, when comparing the individual articles, the differences between the German and South African perspectives and between the problems each of the two nations focuses on become strongly evident. What makes an impact above all is the fact that the religious-cultural situation in South Africa allows one to reach out much more naturally to Christian-theological justifications for the notion of the inviolability of human dignity and for the universal validity of human rights than is the case in the German or European context. In today’s South Africa, the focus is on leading the fight to eradicate the consequences of apartheid, which are still by no means overcome and which manifest themselves above all in the issue of poverty and HIV/AIDS, while invoking the inviolable dignity of man and basic human rights. The churches and reli-

Introduction

3

gious communities constitute an enormously important political and societal factor in this. They not only provide a social network for those who are marginalized from society, are not only effective agents for the improvement in access to education and health care on the ground, but they do this based on robust values that are imparted by Christian and religious ethics. The question of whether religious or theological justifications for human rights could come into conflict with their claim to a universal validity and legal entrenchment lies largely outside the efforts of the ethical and theological reflections that are affiliated with the human rights discourse in the South African context. However, it is precisely this problem around which the debate about the genealogy and validity of human rights in the European context moves. The largely secularized social conditions in Europe do not only make the use of religious-theological semantics in public debates about ethical values and norms extremely difficult. Furthermore, it seems that the Christian-shaped culture of origin of human rights, albeit, crucially, initiated at the hands of the Enlightenment, stands in firm opposition to those rights’ claim to universal validity. As the contributions from the German authors that are documented in this volume show, the human rights discourse in the European context revolves primarily around the question of how the regard for the specific historical, cultural and societal contextual conditions under which the declarations of human rights ensue not only can combine, without transgressions of cultural imperialism, with their universal cross-cultural and cross-societal validity, but indeed has to be able to do so, by its very nature. Wolfgang Huber, in our first contribution, shows how in the age of globalization , the universal validity of human rights is not only compatible with their Christian-theological grounding, but, in fact, maxims of Christian ethics also urge a non-violent approach in the globally responsible commitment to the protection of human rights. The sociologist Hans Joas aims to introduce new perspectives to the discussion that is about on the one hand a particular secular-humanist or a Christianreligious origin of human rights and on the other hand their universal cross-cultural and interfaith validity by seeing the declaration of human rights as developing out of a distinct process of value formation that is linked to blatant experiences of contempt for mankind, specifically, the social-psychological process of a sacralization of the human person. In order for this sacralization of the person to have been able to affiliate itself with the declaration and implementation of human rights as well as the dedication to their protection, it required that humans commit to these values, that they campaign for them to be realized, and that they push for them to be institutionalized in a legally binding way. That can and must happen, today more than ever, in a cross-cultural and interfaith way, yet through concrete mediation with pluri-cultural and religious-social real-

4

Lars Charbonnier and Wilhelm Gräb

ities. Joas sees in this mediation process the workings of a “value generalization.” The claim of human rights to universal validity is then no longer understood in abstraction from the cultural and religious differences, but rather it opens itself up to that mediation with each of the specific conditions for assimilation and realization. In a similar vein runs the contribution from the Practical Theologian at the Berlin Humboldt University Wilhelm Gräb. Like Joas, he insists that differentiating between a secular and a religious justification for human rights leads nowhere. He too points to the genuine religious implications of a human rights regime that is constructed upon the inviolability of the dignity of each and every man. Moving beyond Joas, however, he advocates the thesis that talk of religious implication, as Joas engages in using the term “sacralization of the person,” displays an underestimation of the religious substance in the human rights postulate. The human rights regime in fact seems explicitly to have become a religious movement which transcends the established religions, but which is in part also integrative. Then, however, it would also be justified to conceive the Universal Declaration on Human Rights as a creed for a human rights religion that sets itself universal, or global, objectives. The fact that the religious grounding of the human rights regime is able to open this regime up to reformulations modelled on Islamic culture and religion, and thus promote its transcultural mediation, is shown in the contribution from Sarhan Dhouib, philosopher of Tunisian descent, now teaching at the University of Kassel. To proceed with caution, both as regards the human rights regime’s claim to universality and then also its Christian or religious grounding, is the warning from emeritus ethicist at the University of Zürich’s Theological Faculty Johannes Fischer. Whoever moves beyond the assertion that the universal validity of human rights is to be regarded as a normative idea always threatens, according to Fischer’s view, to fall prey to the danger of a religious or political human rights imperialism. The series of contributions from South Africa opens with that from emeritus Practical Theologian at the University of Stellenbosch Daniel Louw. Louw articulates the theological challenges that arise as a result of the state of affairs where today the human rights regime formulates an ethics of humanity which relies on the unconditional value of every single human. If theology wishes to constructively accommodate this content of unconditionality into the assertion of inviolable human dignity, it must become theological anthropology and devise an aesthetics of divine creaturely reality. The primary task of this aesthetical theology is seen by Louw in the religious grounding of a recognition of the inviolability of human dignity which underpins the human rights regime.

Introduction

5

The systematic theologian at Stellenbosch University Nico Koopman investigates the permanent breach of the professed inviolability of human dignity and the denial of basic human rights that large parts of the black population, in particular, in South Africa still have to suffer. His article aims to show that this state of affairs is irreconcilable with the confessional self-conception and the biblical mandate of the Christian community. A Church which is guided by Jesus’ devotion to the poor, weak and excluded and which continues to practise the reconciling work of Christ in this world must therefore actively commit itself to the societal and political enforcement of human rights. Just how necessary the Christian impulse in South African society is, and remains, is made clear by another systematic theologian from the University of Stellenbosch, Dirkie Smit. He emphasizes the difference between law and justice. The assurance of rights does not necessarily mean that a society comes any closer to attaining just conditions. Rather, it is a question of the exercise of power. The human rights regime, to give a summary of Dirkie Smit’s article, is only just when it enables people to exercise the rights that are due to them. Simanga Kumalo, Practical Theologian at the University of KwaZulu-Natal, also places special emphasis on the question of how societal conditions must be constituted in order for those who up till now have been cheated of basic human rights, such as accommodation and sustenance, access to education and a commensurate participation in public life, to find themselves engaged in an active participation in these rights. The churches are for him an enormously important civil-society actor that can and ought to participate actively in the construction of societal structures that make law and justice a reality, especially in the field of education. Beatrice Okyere-Manu, ethicist at the School of Religion, Philosophy and Classics at the University of KwaZulu-Natal, substantiates Kumalo’s remarks with an eye to one of the most grave issues, which is also attributed to the devastating poverty of broad sections of the black population: that of the HIV/AIDS epidemic. In this issue too it becomes apparent how little is done about the assurance of the human right to physical integrity when the (world) community is not in the position to make the medications that can delay the development of the HIV-Infection into the AIDs-sickness available to all that are in need of them. Our closing piece is from the Practical Theologian Johan Cilliers from the University of Stellenbosch. He turns his attention once again back to the times of apartheid and demonstrates, using the example of congregations who were racially segregated for the receiving of communion, just how greatly all reasonable expectations that churches can become, and ought to become, civil-society actors for the implementation of law and justice in South Africa need a critical

6

Lars Charbonnier and Wilhelm Gräb

realism. Even today, still, racial segregation is never more apparent in South Africa than on a Sunday morning between 10 and 11 am. The fact that the Ministry of Education and Research approved the Theological Faculty’s project proposal to host this lecture series as part of the GermanSouth African Year of Science might well have been instrumentally linked to the fact that the Berlin Theological Faculty, along with two theological faculties in South Africa, that of the University of Stellenbosch and that of the University of KwaZulu-Natal in Pietermaritzburg and Durban, can by now look back on over ten years of extremely fruitful collaboration. To say just a little bit more about this – only this much: in the course of this collaboration with the South African theological faculties, the Theological Faculty of the Humboldt University has succeeded in broadening its outlook and in seeing more clearly the theological challenges that arise for Christian churches and their ethics of justice out of processes of globalization that are propelled primarily by the economy. In the ecumenical relations between churches, these questions have long stood on the agenda, but they meet with a somewhat hesitant admission into theological faculty syllabuses. Over the course of our co-operative work with the South African faculties, is has become possible for us to introduce the master’s degree course “Religion and Culture” to the Theological Faculty. This course enables one to combine theological competencies in interpretation of biblical and Christian traditions with the discourse on the public relevance of Christian and religious life and value orientations in the globalized world. South African theology has given us the inspiration to move towards what is there called “Public Theology,” towards a theology that sees its educational function and academic sphere of influence not only in the Church and its new generation of theologians, who are essential in this regard, but which recognizes itself to be theology in a public role, called upon to contribute to social debates about fundamental orientations of meaning and values as well as questions of law and justice in politics and society. Besides the high quality of contents in the articles itself, we hope to display many aspects of these developments just described by this publication. We are very grateful to all contributors to this volume, especially to our colleagues in South Africa, to the German Federal Ministry of Education and Research, to our publisher Walter de Gruyter, namely Albrecht Döhnert and Stefan Selbmann, and – last but not least – to you, our readers! Berlin / Stellenbosch / Pietermaritzburg, February 2014 Lars Charbonnier and Wilhelm Gräb

Wolfgang Huber

Human Rights and Globalization*

That we live in a globalized world is evident even in the world of scholarship. This is exemplarily reflected in this lecture series that brings together speakers from South Africa and Germany. Despite everything that is critical to say about globalization, at the same time we experience that the dialogue between the earth’s various regions and cultures is not just an abstract postulation; in the face of modern possibilities of transport it is even comparatively easy to realize. One can board an aeroplane in Cape Town in the evening and be in Germany the next morning – and vice versa. The animated dialogue that accompanies this lecture series, to which we owe much thanks, at the same time shows that the contemplation of human rights is often at home in cases where the violation of these rights compels such reflection. Strong convictions of the inviolability of human dignity then ensue when this dignity is gravely violated and damaged. New values, as Hans Joas has shown, primarily form in cases where the grave contravention of such values triggers an evidential experience that at the same time carries emotional force.¹ This correlation between the contravention and formation of values manifests itself particularly clearly in the histories of South Africa and Germany. In Germany, the late horror at the violent crimes of the National Socialist Regime has sparked a late devotion to human rights; in South Africa, the schooling in awareness of human rights is strongly bound to the system of “segregated development” (apartheid) and its overthrow. In both cases, a practice of marginalization is countered by a concept of inclusion. In both cases, therefore, human rights have strong appeal, because they have a fundamental feature that is universal in scope. This universalistic fundamental feature is particularly important in a time that is classified as the epoch of “globalization.” Certainly, the notions of universalization and globalization are to be distinguished from each other; yet they stand juxtaposed not without connection. What one terms “universalization” is

* Translated from the German by Flossie Draper. All translations, also retranslations from former English quotations, by Flossie Draper unless otherwise indicated. Square brackets indicate additions made by the translator.  Hans Joas, Die Entstehung der Werte (Frankfurt/M.: Suhrkamp, 1997)/The Genesis of Values (Chicago, 2000); cf. id., Die Sakralität der Person. Eine neue Genealogie der Menschenrechte (Berlin: Suhrkamp, 2011)/The Sacredness oft he Person. A New Genealogy of Human Rights (Washington, D.C.: Georgetown University Press, 2013).

8

Wolfgang Huber

the search for principles or norms which have universal validity. With “globalization” one means the extension of an activity over the world’s entire sphere. The globalization of the current form of civilization inevitably throws up the question of what those universal norms are by which such global activities are to orientate themselves. Globalization brings about not just an internationalization of trade, and of capital as well as product and service markets, together with a global interweaving of the world’s economies; at the same time it also brings about a global interweaving of communication. A consequence of this is that the violation of basic rights in one location can also be perceived in all other locations. It is precisely this that Immanuel Kant, as early as 1795, regarded as a basic condition for the implementation of a universal awareness of human rights in his essay Perpetual Peace. ² Human rights and globalization go hand in hand, because the need for globally recognizable, and thus universal, norms becomes particularly apparent in light of the global reach of actions. And yet, globalization and universalization are not easily married. It is precisely in this global age of ours that the universal validity of human rights is called into question; they are deemed a product of a western, occidental culture that can no longer present a claim for universal recognition. Nor does the global awareness of rights violations automatically raise the chances of such violations also being able to be prevented; the question of how to protect human rights effectively culminates in the question of whether military intervention can be an ethically legitimate measure for the protection of human rights. Under the title “Human Rights and Globalization,” I would like to concentrate my further reflections on the following two questions: can the culturally relativistic argument against the universality of human rights be refuted? And: at a time when, in the words of Kant, “the violation of right in one place [of the earth] is felt in all,” is there a definitive concept for the defence of human rights?

I On the Universal Validity of Human Rights By way of justification, the contemporary catalogue of human and fundamental rights regularly invokes the fixed and inalienable dignity of man. Thus, the Universal Declaration of Human Rights of 1948 refers, in its Preamble, to the “recognition of the inherent dignity and of the equal and inalienable rights of all mem-

 Immanuel Kant, Zum ewigen Frieden. Ein philosophischer Entwurf (Köningsberg, 1795), 40 – 46 (Third Definite Article).

Human Rights and Globalization

9

bers of the human family” as “the foundation of freedom, justice and peace in the world.” Its first Article proceeds from the basic tenet that “[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” The international human rights covenants of 1966 that were drafted on this basis draw on this wording in their Preambles. The Bonn Basic Law of 1949 then links man’s dignity with his rights yet more markedly, when, in Article 1, it declares: “(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. (3) The following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law.”³ The founding relationship between the human dignity that is common to all men, the human rights that apply to all men and the fundamental rights that are explicitly acknowledged – partly for all men and partly for just citizens – in the constitutional laws of individual states is today, despite various differences in the particulars, of constitutive significance for the international legal community as well as for an insight into the modern constitutional State. However, not only the content and limits of human and basic rights, but also the meaning and scope of that notion of the dignity of man on which they are founded are largely ill-defined or disputed. This concept then first gains its clarity out of the fact of its negation. It was out of the grave attacks of state violence upon the lives, freedom and integrity of countless men that the dignity of man derived its evident nature. It was thereby also deemed evident that man’s dignity is only really acknowledged where it is not denied to any human being. To the universality of human dignity belongs its inclusive character. Also the mentally or physically disabled, also criminals are due this dignity; also nascent human life, but equally also the dying, yes even the dead have – in a way, though it differs in the particulars – a share in this dignity. Yet, in the course of such reflections it has still not been established whether the notion of human dignity can really bear the onus of justification for the concept and the legal implementation of human rights. If one searches for clearer outlines of the notion, one is pointed towards its history.

 [Deutscher Bundestag, ed., Basic Law for the Federal Republic of Germany, official translation (2010)].

10

Wolfgang Huber

In the European tradition, the discourse on the dignity of man comes in two different basic forms.⁴ The notion is either used to denote the special status of a person within a society – a status that is precisely not shared by others; the notion of dignity (dignitas) when used in this way is akin to that of honour (honor). Or alternatively, it means that which marks men out as distinct from other living creatures and establishes their particular standing in the cosmos. The notion of human dignity therefore appears in either a differentiating or an equalizing sense. “Dignity” is used on the one hand to denominate that which marks men out as distinct from other living creatures and establishes their particular standing in the cosmos. On the other hand, the term denotes the special status of a person within a society – a status that is precisely not shared by others; this dignity is earned through accomplishment, or is assigned or awarded to individuals by society. Cicero characterized these two forms of dignity as two “roles” (personae). The one has its basis in the shared faculty of reason, which establishes the primacy of men over animals; the other, however, follows on as a result of that which is assigned to each individual and that which distinguishes men from one another.⁵ This distinction is absorbed into modern conceptions in, for example, the differentiation between “basic dignity” and “personal dignity.” ⁶ In the ancient tradition, as a rule, the differentiating sense of dignity took precedence over the equalizing sense. In the Christian tradition though, the creed of the dignity that is common to all men soon won the upper hand. Fundamental to this is the connection with the biblical account of the Creation (Gen. 1:27). It is being created in the image and likeness of God that distinguishes men from all other parts of creation and is the reason for their special dignity. With this is often associated the Pauline sentiment that the differences between individual men are meaningless when compared against that adoption as a child of God that is common to all: “There is neither Jew nor Greek, there is neither bond nor free, there is neither male nor female: for ye are all one in Christ Jesus” (Gal 3:28). However, neither in the time of early Christianity nor in the Middle Ages did this dignity that is common to all men become a definite point of orientation for ecclesiastical and political order. On the contrary, this perspective was pushed

 For more detail cf. Wolfgang Huber, Gerechtigkeit und Recht, 3rd ed. (Gütersloh: Gütersloher Verlagshaus, 2006), 269 – 346; on what follows, see id., “Das ethische Stichwort: Menschenwürde,” Zeitschrift für Evangelische Ethik 57 (2013): 62– 65.  Cicero, De officiis I, 106.  Cf. Daryl Pullman, “Human Dignity and the Ethics and Aesthetics of Human Suffering,” Theoretical Medicine and Bioethics 23 (2002): 75 – 94 (76).

Human Rights and Globalization

11

into the background as a result of three factors: for one thing it was relativized through the insight into the sinfulness of all men. The Church’s doctrine of original sin proved to be a barrier to the development of an independent Christian conception of the dignity and rights of man right up until the modern era; for it suggested a view of man in which, due to his sin, man has forfeited all right before God, and is also, therefore, not in possession of a dignity that is beyond all worldy and ecclesiastical authority. For another thing, the commonality of the genus humanus took a step back behind the distinction between Christians, Heretics and non-Christians (Jews and Pagans). Up until the modern era, human dignity was widely regarded as the privilege of Christian men and women; the fact that Heretics, Jews and Pagans could lay no claim to it legitimized the barbaric practices of persecution of heretics and pogroms against Jews, together with certain measures taken by colonizers. Ultimately, the Christian anthropology was mapped onto an estatist view of society and a hierarchical view of the church. With this, the differentiating role of the dignity concept won the upper hand over its equalizing sense. However, the notion of the dignity of all men that is founded upon his being created in the image and likeness of God was, admittedly, never fully supplanted. In the time of the Renaissance and Reformation it forged ahead in three intellectual streams of thought: in the Humanism of the Italian Renaissance, in Spanish late Scholasticism and in the German Reformation. We have these three streams to thank for the fact that, in the modern era, the development of ethical world-views can be understood as a process of ever-increasing inclusion. With the question as to whether the native inhabitants of the American continent were to be recognized as men by the conquerors, who were connected with them through neither language nor religion, was posed an early challenge to resolve this issue. Yet the basic tenet that every man is due the same rights still clashed with considerable discrimination for a long time to come. Even the first modern document on human rights, the Virginia Bill of Rights from 1776 did not prevent de facto social exclusion. Nor did the main author of this document, Thomas Jefferson, let the discernment he himself expressly worded that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”⁷ deter him from making use of the service of slaves as part of his

 [United States Declaration of Independence, Preamble (1776) The German translation used in the original was quoted from Charlotte A. Lerg Die Amerikanische Revolution (Tübingen, 2010), 49 f.]

12

Wolfgang Huber

own personal lifestyle. The second key document in the modern development of human rights, the French Declaration of The Rights of Man and of The Citizen, from 1789, could not prevent that, even after its proclamation, racism and sexism continued to proliferate and became epoch-defining challenges. The triumph over serfdom, the breaking down of discrimination on grounds of group affiliations, and the equality of men and women were the great turning points towards a universal understanding of man’s dignity. The violent crimes of Hitler’s Germany against European Judaism, the apartheid policy in South Africa, and the instances of “ethnic cleansing” in crumbling Yugoslavia revealed that the descent into violent forms of a group-focused enmity is always possible, even after the fundamental insight into the universal character of human dignity.⁸ The awareness of human rights can therefore never be regarded as an assured possession; rather, every generation must contend afresh for recognition of the equal dignity of every human. After the conclusion of the worldwide confrontation between the East and the West, it appeared that the hour had come for a worldwide recognition and implementation of human rights. An indication of this was that the western industrialized countries used their supremacy in the World Bank and the International Monetary Fund to bind the granting of relief payments to countries in need of help to the stipulation of a guarantee of political and civil rights and constitutional standards. This “political conditionality” that availed itself of the notion of human rights provoked the objection from the opposing side that human rights do not at all have a universal validity, as purported. It was said, on the contrary, to be about a “western” concept, in the face of which, countries in the earth’s poverty belt together with emerging nations had to first of all sue for a collective right to development, together with the right to governmental autonomy. Out of this arose a paradoxical position in the debate. Since the modern idea of human rights historically had to prevail far and wide against resistance from the Christian Church, its rooting in the Judaeo-Christian tradition for a long time remained in the background. Even into the sixth and seventh decades of the 20th century still, one could doubt whether the Church had really made its peace with the idea of universal human rights. The Roman Catholic Church first declared this peace with an Encyclical of Pope Johannes XXIII from the year 1961,⁹ and

 On the notion of “group-focused enmity” [German: “gruppenbezogene Menschfeindlichkeit”] cf. Wilhelm Heitmeyer, Hg., Deutsche Zustände, Folge 1 bis 10 (Frankfurt/M.: Suhrkamp, 2002– 2011).  Johannes XXIII, Enzyclical “Pacem in terris” I, 6 – 13 (http://www.vatican.va/holy_father/john_ xxiii/encyclicals/documents/hf_j-xxiii_ enc_11041963_pacem_ge.html, 05.02. 2014, 23:00).

Human Rights and Globalization

13

then subsequently through pursuant documents from the II. Vatican Council.¹⁰ In the protestant ecumene too, there were analogous breakthroughs in the sixties and seventies. The result was a twofold account of human rights: some accentuated the secular genesis of human rights that in part had to be pushed through against instances of resistance from the Church; others pointed to the roots in Judaeo-Christian thought and welcomed the fact that an essential hereditary feature in the Judaeo-Christian understanding of man had shown itself to its best advantage in the modern development of human rights, and that the Christian Church had, via this circuitous route, rediscovered its very roots. At any rate, the relationship between Christian thought and human rights was certainly controversial. With the debate of the nineties, however, the rooting of human rights in the Judaeo-Christian-shaped culture of the West was taken as a matter of course; precisely out of this rooting was then derived that objection that it centred around a particular western idea, to which no universal validity could be awarded. Now, this question cannot be sufficiently resolved by going down the history of thought route alone. It is not the opposing genealogies, ascribing on the one hand a secular, on the other hand a Judaeo-Christian provenance to human rights, that give an adequate answer to the question of whether human rights have the potential for universal application. Rather, a look at the genesis of the modern idea of human rights helps paint a more nuanced picture. In this connection, Hans Joas has drawn attention to the fact that the origination of the Universal Declaration of Human Rights from 1948 was in no way shaped by a one-sided western background. For example, with René Cassin a secular rationalist from France, with Charles Malik a Christian Arab from Lebanon, and with Peng-chung Chan a Confucian-orientated Chinese philosopher all had a hand in its formulation. One can absolutely map the origination of the Universal Declaration on Human Rights onto a process of successful “value generalization.” ¹¹ However, a universalistic claim can only be granted to human rights in as far as they address themselves self-critically and are not directly coupled with a claim to cultural superiority. That then pertains all the more when one sees the special thrust of the thesis of a universal and equal dignity of every

 Cf. in particular the council’s declaration on religious freedom, “Dignitatis humanae,” in Herders theologischer Kommentar zum Zweiten Vatikanischen Konzil. Band 1, Die Dokumente des Zweiten Vatikanischen Konzils, hg.v. Peter Hünermann, Bernd Jochen Hilberath et al. Latin-German (Freiburg i.Br., 2004): 436 – 458 (=AAS 58 [1966]: 929 – 949).  Cf. Hans Joas, Die Sakralität der Person. Eine neue Genealogie der Menschenrechte (Berlin: Suhrkamp, 2011), 251– 264/ The Sacredness of the Person. A New Genealogy of Human Rights (Washington, D.C.: Georgetown University Press, 2013), 173 – 182.

14

Wolfgang Huber

human being as consisting in giving high priority to the inclusion of those who are excluded. Then it is not just the past forms of exclusion that prove problematic; the same can also be said for new instances of exclusion, among which are those associated with globalization. To be cited, for example, are the rights of migrants and the various forms of denied integration under which they have to suffer in many parts of the world; an often forgotten example is that of Palestinian refugees, who were held in refugee camps in other countries in the Near East for over half a century, as a bargaining tool, so to speak, for the claim that they will all return to a free and equal Palestinian State when the moment for that is come. This case exhibits very effectively that where basic human rights are denied, the dispute over their universal validity falls silent. This dispute then always flares up when human rights are introduced in political conflicts and in conflicts of opinion. It then takes on practical significance too, when the question about the substance of these human rights is posed. A concept that focuses on the individual human person and above all emphasizes their civil and political rights is here deemed typically western. Counterposed to this are rights of the second “generation” that are predominantly social and cultural in substance; it is occasionally said of these rights that it is a question of collective, in contrast to individual, rights. Finally, set alongside this, is a third generation of rights, among which the right to development and the right to a sound environment are the most important. Such an extension, however, can be better justified when one doesn’t view it as a transition from “individual” to “collective” rights, and when one talks not of generations, but rather of dimensions of human rights.¹² Not in need of revision is the sentiment that the human being is a bearer of human rights – or more precisely: that all humans are bearers of these rights. However, this is true not simply by virtue of their individualistic self-referentiality; they fulfil this too as social beings, as cultural beings, in exchange with their environment. Furthermore, it is not just those who are currently alive who are bearers of human rights, but also the members of future generations. If one takes this as a starting point, then a dimension of human rights that deals with man’s social and cultural existence can be every bit as integrated as the perspective of those that are cut off from development and prosperity. Above all, such a consideration opens the door to giving even the members of future generations a place in the human rights discourse, and lending them a voice, despite the fact that, or precisely because,

 Cf. also Wolfgang Huber, “Rechtsethik,” in Handbuch der Evangelischen Ethik, ed. Wolfgang Huber / Torsten Meireis / Hans-Richard Reuter (München: C.H. Beck, 2014).

Human Rights and Globalization

15

they cannot yet themselves contend for their rights. At this point, incidentally, it becomes apparent that although the suability of rights is certainly an important regulation, it is not a downright necessary condition for a human right. It is not the shift towards collective rights, but rather a revision of the presupposed image of humanity that proves to be the more proper way when dealing with the various dimensions of human rights. Here the dialogue of cultures and religions can prove helpful. For although the relationality of man is also anchored in the Christian anthropology, other cultures – for example Buddhism – have a more impartial relationship with this relationality than a Christianity that is biased towards an individualistic restriction of the image of humanity. With this consideration, it can be seen that to the pluralism of the globalized world also belongs the openness to competing justifications for human rights that mutually enrich each other and can at the same time deepen the understanding of human rights and the human dignity that lies at their core. In contrast, an exclusive linking of the emergence and validity of human rights to a Judaeo-Christian story of origin for human rights leads to a constricted viewpoint, against which – for understandable reasons – it is then objected that the citation of a particular grounds for validity does not sit well with the claim to universal validity. A critical theory of universal human rights, however, as I have outlined during the course of these reflections, can withstand this objection.

II On the Protection of Human Rights In the development of human rights, the defining motif, for a long time, was that of safeguarding the individual members of a legal community against attacks of state violence. Human rights obligate the State to protect the right (of man) through the law. Yet this coercive character of human rights that curbs the abuse of state power can be complemented by another point of view. That human beings are not turned into objects of the abuse of power, but rather are respected in view of their innate autotelic nature, and thus dignity, is of significance not just as regards state conduct; it also pertains to the interaction between humans, as well as to the burgeoning forms of societal wielding of power, for example through the exercise of economic power. In all these processes of societal and personal interaction, the remit of the law is, in the direct relations between men as in view of their societal dependencies, to enable and secure relationships of recognition, courtesy of which men do not degrade each other to mere objects, but rather respect each other in view of their dignity. In this regard too, the proposition that the right (of man) be protected through the law again proves to be right.

16

Wolfgang Huber

What happens when this protection of the right is left out of the law? What happens when the State fails in its duty to shield its citizens protectively? For these situations, the tradition of political ethics has invoked the right of resistance; it has construed such a situation as a state of political emergency, which, in extreme cases, even justifies the use of violence, namely, the dispatch of tyrants. But does an alternative possibility also exist? Is there a legal body and a legal procedure, with whose help grave violations of human rights that occur either in or at the hands of states can be prevented, or, when that is not possible, at least put to an end, placed under sanctions and avoided for the future? In doing so, can one resort to means of coercion – right up to physical violence?¹³ Out of the idea of a rule of law that derives its legitimacy from that law’s intrinsic relation to human rights, it follows that the means of coercion used to implement this law must be strictly limited. For they must, in turn, be subject to the legitimacy criteria of that law. At first glance, it does not seem compatible with a legitimation of the state law on grounds of human rights when this law is enforced through means of direct physical violence. For this reason, a criminal justice system that is committed to human rights can justify neither torture used to force confessions, nor the death penalty as a means of overcoming crime. The goal of the law is to avoid and protect against violence; violence cannot therefore be a regular instrument of the law. On the contrary, it can only be deployed in an extreme emergency – namely, if is appears to be unavoidable for the saving of human lives and the defence of that law. From the perspective of the ethical quality of the law, there is, as Hans-Richard Reuter in particular extrapolated, only one single justification that can legitimize the use of physical violence; namely the conviction that this use of violence is unavoidable for the preservation or restoration, for the conservation or facilitation, of the law.¹⁴ The issue of violence has its place within an ethics of conservation and facilitation of the law. The question about the criteria to which the use of violence in this context should be linked has been broadly discussed, most notably with regard to violence in war; yet, under the assumption that violence can only be legitimate in the service of conservation and facilitation of the law, it must be expected that such criteria also apply in all other con-

 Cf. on the following Wolfgang Huber, “Legitimes Recht und legitime Rechtsgewalt in theologischer Perspektive,” in Gewalt und Gewalten. Zur Ausübung, Legitimität und Ambivalenz rechtserhaltender Gewalt, ed. Torsten Meireis (Tübingen: Mohr Siebeck, 2012): 225 – 242.  Cf. especially Hans-Richard Reuter, “Was ist ein gerechter Frieden? Die Sicht der christlichen Ethik,” in Die gerechte Friede zwischen Pazifismus und gerechtem Krieg. Paradigmen der Friedensethik im Diskurs, ed. Jean-Daniel Strub / Stefan Grotefeld (Stuttgart a.o.: Kohlhammer, 2007): 175 – 190.

Human Rights and Globalization

17

ceivable cases, thus especially in those of police violence, of resistance and of self-defence. From an ethical perspective, there can be downright no special ethics solely for the event of war. On the contrary, the relation between law and violence must be fixed, working from the same grounding principles, for all configurations in question. When one views all these cases in conjunction, the criteria for when the use of violence can be ethically countenanced can be systemized as follows: the crucial criterion is that this measure, due to matters of fact or time, is an extreme measure, for which, with a view to the sought goal, there is no practical alternative. Yet, over and above the criterion of ultima ratio, there are imperatives of plausibility, moderation and authorization that are bound to the selection of this tool. The assertion that it is a matter of a situation being in need of that extreme measure does not, by itself, suffice; rather, the question must be asked whether this extreme measure can also lead to the sought goal. And yet, the likelihood of success alone is also not enough; rather, the question must be asked, whether, in the process, the proportionality of the measure is maintained. Positive findings on examination of both these questions, however, still do not by themselves suffice; rather, the question must be asked whether the subordination of violence to the law was maintained, in that the decision was reached in accordance with the regulations of the law, and thus by a body authorized for this purpose. Thus, the imperative of plausibility obligates one to weigh up whether there is a realistic chance of achieving the goal of conservation or facilitation of the law by means of that violence that should be deployed as an extreme measure; the imperative of moderation obligates one to use restraint in the deployment of violent measures and to spare non-involved parties; the imperative of authorization obligates that violence only be deployed when it is authorized in compliance with the state monopoly on the legitimate use of force, by the duly appointed authorizing body. The question of whether, under conditions of globalization, the deployment of violence for the protection of human rights can be legitimate has been debated since the beginning of the 1990s under the heading of “humanitarian intervention.” Yet here the thrust is on one-sided action, on the part of intervening states, that is not authorized by a United Nations ruling; what is more, the approach is wholly concentrated on the justification of a military attack. The experiences that came with the genocide in Ruanda, or with the acts of “ethnic cleansing” in the Balkans showed that the theoretical model of “humanitarian intervention” was too narrow. A new approach had to answer the question of just how the sovereignty of the individual nations and the international community’s duty of protection stand in relation to one another. The answer was found in the concept of the Responsibility to Protect. It was

18

Wolfgang Huber

developed in 2000/2001 by a body established on Canadian initiative, the “Commission on Intervention and State Sovereignty.” With the Responsibility to Protect, a concept was developed which seeks to bind the duty to protect human rights to respect for the sovereignty of the individual states. The United Nations World Summit appropriated this concept in 2005; in view of the Darfur conflict in Sudan, the altercations in the Democratic Republic of Congo and the intervention in Libya, the “Responsibility to Protect” was explicitly enlisted. It limits itself to the worst humanitarian catastrophes that are referred to as “crimes against humanity”: genocide, acts of ethnic “cleansing,” crimes, indeed, against humanity and serious war crimes. It answers these with a concept that rests upon three pillars. The first pillar constitutes the responsibility of each individual state in which a crime is perpetrated, or in which people affected by that crime seek refuge. The sovereignty of the individual state is respected; but this sovereignty is interpreted as responsibility. It is the duty of the international community first of all to remind the individual states of the obligations that result from their sovereignty. The second pillar consists in the duty of the international community to support individual states who cannot meet their obligation of their own resources, in fulfilling their national obligation in so far as this assistance is requested. The third pillar consists in the international community’s obligation to take timely and effective collective action. The crucial starting point resides in the fact that it is the individual states themselves that are assigned a duty under international law to protect their populations. In this obligation they can have recourse to the support of other states; but they must set themselves this task. In this respect, the prohibition against intervening in the affairs of individual states forms the point of departure; however, it loses impact so far as the individual states severely violate their inborn obligation to protect. It is admittedly disputed how grave this violation has to be, to be said to justify such a qualification of the prohibition against intervention. The subsidiary action coming in from the international community for one thing includes peaceful means of protecting vulnerable population groups. However, it can also entail that the UN Security Council adopt necessary measures that include a military intervention in order to prevent continued crimes against humanity. Of course, in doing so, it at the same time undertakes the commitment, after such a military intervention, to seek conditions in which the human security of those affected is permanently ensured. In order for this to be possible, it must, from the outset, take heed of the interests of the affected population groups.

Human Rights and Globalization

19

The notion of a “responsibility to protect” differs from that of “humanitarian intervention,” for a start, by virtue of the fact that it emanates from the responsibility of the individual states. It differs from it in another way in that it sets the responsibility of the international community (that is, not a single intervening state, or group of states) to protect as secondary to the responsibility of the individual states to protect. This is not restricted to military intervention, but rather combines together the components of prevention, reaction and reconstruction. The international community must observe its responsibility to protect threatened population groups in the first instance through non-military preventative measures. Only when these measures fail can, as an extreme resort, the deployment of military force come into question. Yet the responsibility to protect extends beyond the cessation of acts of violence; it must also include a contribution to the construction of a durable blueprint for lasting peace. At the time when the report from the International Commission on Intervention and State Sovereignty was published, in 2001, the world’s public stood completely and utterly transfixed by the terror attack on the Twin Towers in New York and on the Pentagon in Washington, on 11th September 2001. That hampered the reception of the Commission’s proposals considerably. The War against Terror was given precedence over the international community’s responsibility to protect population groups who are threatened or affected by genocide or other crimes against humanity. This shift of attention was not justifiable. It should not have been allowed to come to that – that the War against Terror and the responsibility to protect threatened population groups were played off against each other. The process of codifying the responsibility to protect theory in international law was thereby made substantially more difficult. For this same reason, the extent to which the responsibility to protect theory was bound under international law remained unclear; also thus far insufficient, certainly, are the criteria for when this policy can be applied. However, that the genocide in Ruanda or the so-called cases of “ethnic-cleansing” in crumbling Yugoslavia would have been just such instances for its application, there can be no doubt.

Conclusion: Human Rights and Cosmopolitanism To conclude, we want to turn our attention to the question of whether there is a an approach that the private individual can take that accords with the acknowledgement that human rights are the foundation of legal order. Common to all the justifications that are advanced for human rights is the linking of the inviolability of human dignity to the principle of equality. Yet as reasonable as that seems, one should be equally wary of excessive demands

20

Wolfgang Huber

when one sets the thus determined universal human dignity as a benchmark for individual responsibility. For the individual can certainly acknowledge the equal dignity of all men – including members of future generations – in principle; however, only with difficulty, so it seems, can he make this a benchmark for individual behaviour. This “furthest ethics,”¹⁵ as the argument is called, is of no use for the ethical orientation of the individual human being. Whoever is confronted by such an ethics can sooner be cajoled into a resigned reticence than spurred on to active engagement. Active engagement, to cite Emmanuel Levinas, deals with a regard for the Other, and thus with concrete human destinies.¹⁶ Yet the encounter with the concrete individual at the same time compels the insight that Kwame Anthony Appiah summed up in the simple phrase, “everybody matters.”¹⁷ A world society approach does not assume that the individual hold, towards every member of humanity, the same feelings he holds towards his closest friends or neighbours. What is assumed, however, is the realization that no man may be regarded with indifference. The dividing line runs between a basic attitude of “everybody matters” and the distinction between groups of people in line with the basic principle “not everybody matters.” To respect the dignity of every individual means to respect the diversity of men. Universality and difference are therefore the twin defining markers for a world society approach. For this world society approach, the term “cosmopolitanism” has become established. It points back to the origins of this school of thought in ancient philosophy. Already the Greek philosophers developed a clear awareness that the individual is not just citizen of his own particular community, that is, his polis, but that all men inhabit the earth collectively. Stoic philosophy therefore aligns the homing of the individual within his polis with his membership in the whole of humanity. Out of this philosophical approach develops the idea of an attitude of a world society that is part of the ethos of the individual. In modern development, such an attitude finds its expression most evidently in an educational interest that extends beyond one’s own nation. However, it also takes effect in the willingness to integrate hitherto excluded groups of people as equals into society. To hold every human being as important cannot mean to let oneself be concerned with all of humanity’s problems at the same time. Not only individuals,

 [Original German: “Fernstenethik”].  On the following cf. Wolfgang Huber, Ethik, Die Grundfragen unseres Lebens von der Geburt bis zum Tod (München: C.H. Beck, 2013), 117– 128.  Kwame Anthony Appiah, Der Kosmopolit. Philosophie des Weltbürgertums (München: C.H. Beck, 2007), 174.

Human Rights and Globalization

21

but also human societies – whether it be civil society organizations or nation states – are unable to react to all the challenges of an era at the same time. Instead, priorities must be set, in individual as in collective action. However, when one orientates oneself around human rights, the priority attention that one gives to designated groups of people or acute complexes of problems cannot be assigned through mere self-interest or through group-focused prejudices; rather, the special responsibility for designated individuals and for designated groups must be tied to an equal respect for the rights of all. Social responsibility in the vicinity of one’s own family or one’s particular occupational field should therefore, in one way or another, be tied to a commitment to world society. The dedication to cross-border church partnerships, the championing of the human rights of political prisoners at Amnesty International, or the participation in political initiatives for sustainable development are examples of this. The universality of human rights obligates one to also take into account the remote impact of one’s own actions. For, directly or indirectly, the effects of our actions reach much further than we make ourselves expressly aware of. The purchasing of groceries and clothing connects consumers in Europe with producers in countries of the Third World; in the prices of these goods are reflected the living and working conditions in the lands of their origin. Today’s decisions about the use of non-renewable energy sources or CO2-intensive modes of transport influence the living conditions of future generations. The remote impact of one’s own actions, too, should be taken into account when weighing up possible alternatives. Therefore, it is not only in principle appropriate, but also of considerable practical significance to recognize human dignity and human rights as a framework of reference for personal responsibility. However, the personal approach to a world society represents only one form in which cosmopolitanism is realized. Alongside it exists the idea of an organizational cosmopolitanism, such as has most notably taken shape in the blueprints for a world peace order. The recognition of a world society and the republican constitution of individual states, together with a federal organization of the international community, were already highlighted by Immanuel Kant as the basic elements of such an organizational cosmopolitanism.¹⁸ The founding of a League of Nations after the First World War, together with the new initiative of the United Nations Organization (UNO) were two large-scale attempts to give shape to such an organizational cosmopolitanism. Alongside the individual and political forms of cosmopolitanism exists the idea of a civil-society cosmopolitanism. For it is not just individuals and states

 See above, fn. 2.

22

Wolfgang Huber

that can represent a world society approach. In fact, it primarily takes shape in the practice of societal actors. Global initiatives that arise out of the ecumenical solidarity of Christian churches, or other civil-society initiatives, are examples of this. The most influential global actors, however, are commercial enterprises; an economic cosmopolitanism must therefore also be explicitly addressed. That the economic actors orientate their actions not around maximum profit, but rather commit themselves to the recognition of equal human rights in all continents is one of the primary postulates of a world society ethics. That this orientation has, in the meantime, found its way into the international debate on standardization is at least a sign of hope.¹⁹ Yet, further public debates and practical efforts are necessary to establish this in the practical design of the globalized economy. For in this lies the definitive touchstone for whether human rights are serviceable as universalizable principles in a globalized world.

Bibliography Appiah, K. A. Der Kosmopolit. Philosophie des Weltbürgertums, München: C.H. Beck, 2007. Heitmeyer, W. ed., Deutsche Zustände, Folge 1 bis 10, Frankfurt/M.: Suhrkamp, 2002 – 2011. Huber, W. Gerechtigkeit und Recht, 3rd ed., Gütersloh: Gütersloher Verlagshaus, 2006. Huber, W. “Legitimes Recht und legitime Rechtsgewalt in theologischer Perspektive,” in: Gewalt und Gewalten. Zur Ausübung, Legitimität und Ambivalenz rechtserhaltender Gewalt, ed. Torsten Meireis, Tübingen: Mohr Siebeck, 2012: 225 – 242. Huber, W. Ethik, Die Grundfragen unseres Lebens von der Geburt bis zum Tod, München: C.H. Beck, 2013. Huber, W. “Das ethische Stichwort: Menschenwürde.” Zeitschrift für Evangelische Ethik 57 (2013): 62 – 65. Huber, W. “Rechtsethik.” In: Handbuch der Evangelischen Ethik, ed. Wolfgang Huber / Torsten Meireis / Hans-Richard Reuter, München: C.H. Beck, 2014. Joas, H. Die Entstehung der Werte, Frankfurt/M.: Suhrkamp, 1997/The Genesis of Values, Chicago 2000. Joas, H. Die Sakralität der Person. Eine neue Genealogie der Menschenrechte, Berlin: Suhrkamp 2011/The Sacredness of the Person. A New Genealogy of Human Rights, Washington, D. C.: Georgetown University Press, 2013. Kant, I. Zum ewigen Frieden. Ein philosophischer Entwurf, Königsberg, 1795. Pullman, D. “Human Dignity and the Ethics and Aesthetics of Human Suffering.” Theoretical Medicine and Bioethics 23 (2002): 75 – 94. Reuter, H.-R. “Was ist ein gerechter Frieden? Die Sicht der christlichen Ethik.” In: Der gerechte Friede zwischen Pazifismus und gerechtem Krieg. Paradigmen der Friedensethik

 Cf. German Institute for Standardization (Deutsches Institut für Normung (DIN)), DIN ISO 26000: 2011– 01. Leitfaden zur gesellschaftlichen Verantwortung (Berlin, 2011).

Human Rights and Globalization

23

im Diskurs, ed. Jean-Daniel Strub / Stefan Grotefeld, Stuttgart a.o.: Kohlhammer, 2007: 175 – 190.

Hans Joas

The Sacredness of the Person¹ One of the most sterile debates in the historiography and philosophy of human rights concerns the question as to whether human rights should be traced back to religious or secular-humanist origins. You are all familiar with a widespread view which holds that human rights are a product of the French Revolution. They are said to have been codified for the first time in history in the famous declaration of 26th August 1789. This declaration is assumed to stem from the spirit of the French Enlightenment which was, again according to this conventional view, at least anti-clerical if not openly hostile to religion. In this perspective, human rights are not the fruit of any religious tradition, but rather of a resistance against the power of the (Catholic) Church or Christianity as a whole. A last element of this view is the assumption that although the French revolutionaries were able to draft such a declaration, they did not succeed in presenting a really consistent conceptual foundation for their historical breakthrough. For this one has to turn to Germany, where it was Immanuel Kant’s moral and legal philosophy which delivered a more or less irrefutable foundation for the idea of human rights and the universal dignity of man. This conventional view has never been undisputed. Moreover, there are national variants of this genealogy of human rights. But minor differences in the competing narratives aside, there does seem to be an elective affinity of this conventional view with a secular humanism – and a tendency of Christian, very often Catholic, thinkers to propose an alternative master narrative. This view has mostly emerged in the 20th century, when the Catholic Church turned from a condemnation of human rights as liberal individualism to a fervent plea in favour of human rights. Its proponents mostly focus on long-term religious and intellectual traditions. For them, the way for human rights in the modern sense has been prepared by the understanding of the human person in the Gospels and by the philosophical articulation of this understanding in connection with a personalist understanding of God in medieval Christian philosophy. There is also a kind of compromise formation here, namely the view that al-

 See Joas, H., The Sacredness of the Person. A New Genealogy of Human Rights (Washington, D. C.: Georgetown University Press, 2013), chapter 1. The present paper is a summary of this book that was originally published in German in 2011 (Die Sakralität der Person. Eine neue Genealogie der Menschenrechte. Berlin: Suhrkamp, 2011). The summary was published in German in: Schäfer, H. W., Hg., Hans Joas in der Diskussion. Kreativität – Selbsttranszendenz – Gewalt (Frankfurt/Main: Campus, 2012), 147– 165.

26

Hans Joas

though the Enlightenment may have been anti-Christian, its deepest motives are nothing but a result of the Christian emphasis on individuality, sincerity, and compassion. A moment ago I called this debate sterile. The reason for that is not simply that the exchange of opinions in this area seems not to have led to much mutual modification of the original ways of argumentation. More importantly, what makes me unhappy is that I find it rather clear that none of the positions I have sketched here can be defended. The conventional secular-humanist narrative is empirically untenable; I will say more about this in a minute. But while I think it distorts the historical reality of the 18th century, it at least has the merit of explaining a cultural innovation in light of the conditions of the precise period when this innovation arose. The alternative story cannot convincingly demonstrate why a certain element of Christian teaching that has coexisted for centuries with political regimes of diverse sorts – regimes of which none were based on human rights – should suddenly have become a dynamic force in the institutionalization of human rights. Maturation over centuries is not a sociological category, and even if we switch from pure intellectual history to institutional traditions like legal history, we would have to bear in mind that traditions do not simply perpetuate themselves but that perpetuation occurs only through the actions of human beings. Even if one tends to admit, at least retrospectively, that the idea of human rights can to some extent be seen as a modern rearticulation of the Christian ethos, one would have to have an answer to the question of why it took 1 700 years to translate the gospel into this legally codified form. Moreover, I am deeply suspicious with regard to the compromise position I mentioned; it looks a bit like a conjuring trick to claim things as an achievement for oneself despite the fact that one had condemned those things when they first arose. My main message here is that there is an alternative to this whole set of competing narratives. The catchword for this alternative is the word “sacrality,” or “sacredness.” I propose to consider the belief in human rights and universal human dignity the result of a specific sacralization process, a process in which every individual human being is more and more seen as sacred. After a brief summary of some of the reasons why I think the conventional view is empirically untenable, I will: (1) briefly characterize what I mean when I say sacralization or sacredness of the person; (2) mention a schema that I propose for the analysis of sacralization processes; (3) explain how we have to imagine the relationship between sacralization processes and religious traditions; and (4) illustrate how the meaning of “justification” changes from philosophical, rational argumentation to what I call “value generalization” by using as my example the drafting process of the Universal Declaration of Human Rights of 1948.

The Sacredness of the Person

27

So why is the conventional view empirically untenable? Let me just mention two of several reasons. Firstly, since Georg Jellinek’s 1895 book,² it is clear that the French declaration certainly does not have chronological priority in the history of human rights. Rather, it was directly influenced by, or even modeled on, the American Declaration of Independence and the various “Bills of Rights” proclaimed in Virginia, Pennsylvania and other newly independent North American states in 1776. More important than the chronological question is that the American declarations were by no means based on hostility toward religion. Jellinek went so far as to claim religious roots for them – not in Christianity as such, nor in its Protestant version, but in a specific learning process that inspired some 17th-century Protestants to struggle for religious freedom not only for their own creed, but “for Jews, heathens, and Turks” as well. Jellinek’s central thesis was that “[t]he idea of securing the inalienable, inborn, and sacred rights of the individual in the law is of religious rather than political origin. What has hitherto been viewed as a product of the (French) Revolution is in fact a fruit of the Reformation and its struggles. Its first apostle is not Lafayette, but rather Roger Williams, who, driven by powerful, deeply religious enthusiasm, sets off into the wilderness to found a realm of religious freedom.”³ Given the state of historical research on these questions, many minor aspects of Jellinek’s claim certainly have to be modified today, for example the precise role of Calvinists in this story as opposed to that of Baptists and Quakers, the relationship between the American and the French Revolutions, and the role of religious freedom in the American Revolution. His basic approach, however, is well confirmed. A second reason is that we have to get rid of the myth of the anti-religious French Revolution. In the research literature on the French Revolution, it is today uncontroversial that in the early phase of the Revolution “no meeting could take place without invoking heaven, that every success had to be followed by a Te Deum, [and] that any symbol which was adopted had to be blessed.”⁴ Although the ties between “throne and altar” had been broken, a new tie between Revolution and altar was established. Attendance at religious services seems to

 Jellinek, G., The Declaration of the Rights of Man and of Citizens: A Contribution to Modern Constitutional History (Westport, CT: Hyperion, 1979). For the German edition see: Jellinek, G., Die Erklärung der Menschen- und Bürgerrechte: Ein Beitrag zur modernen Verfassungsgeschichte, 3. Aufl. (München: Duncker & Humblot, 1919).  Ibid., 77.  Reinhard, M., Paris pendant la Révolution. 2 vols. (Paris: Centre de documentation universitaire, 1966), vol. 1, 196 (quoted in McLeod, H., Religion and the People of Western Europe, 1789 – 1989, 2nd ed. (Oxford: Oxford University Press, 1997), 1).

28

Hans Joas

have increased during the first years of the Revolution. “The Festival of the Federation marking the anniversary of the Fall of the Bastille continued to be framed with religious ceremonial. Traditional Catholic feast days and processions were also widely celebrated in both Paris and the provinces, at least through the summer of 1793. Indeed, before that date, efforts by certain radicals to halt processions in Paris were roundly opposed by the population itself.”⁵ But this is not to deny that the French Revolution led to the first “state-sponsored assault on Christianity”⁶ in Europe since the early Roman Empire. What was crucial for this escalation of the revolutionary process in an anti-Christian direction was the economic and political, not the religious, role of the Church. The first steps concerned the “total suppression both of the tithes and of the seigniorial rights controlled by the Church,”⁷ then came the attempt to nationalize the Church and the ensuing division between loyal and so-called refractory members of the clergy, the increasing and often deadly hostility towards refractories in times of war (from 1792 onwards), and the “quasi-millenarian context” in which “certain aggressively anti-religious or atheistic positions, positions advocated by a marginal fringe of 18th-century philosophers and by a tiny minority of Parisian intellectuals early in the Revolution, acquired for a time a substantially larger following.” ⁸ One of the tragic results of this spiraling escalation is, of course, the papal condemnation of the Revolution and its declared principles, including human rights, as sacrilegious, heretical and schismatic. Tocqueville, in his 1856⁹ book on the Ancien Régime, already had intelligent things to say that could have helped to disperse the myth of the anti-religious French Revolution. But let me now come to my proposed alternative. (1) A process like that of the institutionalization of human rights is not simply a phenomenon of legal or political history, and even less so of the history of philosophy. It is a profound cultural transformation. Without such a transformation, a paper containing a codification will be not much more than paper; it will remain unstable and constantly imperiled. A cultural transformation in the full sense takes place when the new values have become subjectively self-evident

 Tackett, T., “The French Revolution and Religion to 1794,” in Enlightenment, Reawakening and Revolution, 1660 – 1815. The Cambridge History of Christianity, vol. 7, ed. Brown, S. J. and Tackett, T. (Cambridge: Cambridge University Press, 2006): 536 – 55, here 550 (which includes a reference to church attendance figures).  Ibid., 536.  Ibid., 542.  Ibid., 552.  de Tocqueville, A., The Ancien Régime and the Revolution (London: Penguin, 2008). Originally published as L’Ancien Régime et la Révolution (1856).

The Sacredness of the Person

29

and affectually intense for human beings. These are the two features that characterize, in my eyes, a deep-seated value commitment. We do not feel the need for rational justification for ourselves if something is subjectively self-evident, and any violation of that something leads to moral outrage if we have intense affectual commitments. There is, of course, a traditional word for this: sacred, heilig. Since this term is often restricted to its religious meaning, many people do not want to use it in connection with secular values. That is why the German Constitution uses the word “unantastbar” (inviolable) instead of “sacred” as an attribute of human dignity, and it is a little bit ironic that this word clearly stems from the regulation of physical contact (“antasten”) that has always been an important component of sacredness in the religious sense. From a social-scientific point of view, sacredness is not simply an inherent quality of objects, but an attribution by human beings who have come into contact with it or who have had experiences that have convinced them that such an attribution is appropriate. This means that we can study such processes of sacralization as they happen within religious traditions or, in a particularly spectacular manner, when religious or other cultural innovations take place. The sacred or, as Max Weber would have said, the charismatic is never simply there, but always in flux. Different things can be sacralized; the whole system of sacralization can be transformed, as, for example, in the axial age, when the idea of transcendence as the authentic source of all sacredness emerged. Nobody has contributed more to the sociological analysis of such dynamic processes of sacralization than Emile Durkheim, the great French founder of the discipline. He also already applied this idea to secular contents, for example the sacralization of the nation in 19th-century nationalism that invests some of the attributes of the nation-state, like the flag, with sacred qualities to such a degree that people may be willing to sacrifice their lives for it. Durkheim was a militant secularist for whom the declericalization of the French educational system was an important historical step forward. But one does not have to share his political intentions to appreciate that his idea of sacralization was important, particularly when he applied it to human rights. Durkheim ardently believed in Kant’s philosophy, but also tried to go beyond Kant by analyzing human rights as a result of the process of the sacralization of the individual or the “person.” Just listen to the way he, during the turmoil of the Dreyfus scandal in 1898, paraphrased human rights as the result of a process of the sacralization of the person: This human person, the definition of which is like the touchstone which distinguishes good from evil, is considered sacred in the ritual sense of the word. It partakes of the transcendent majesty that churches of all time lend to their gods; it is conceived of as being invested

30

Hans Joas

with that mysterious property which creates a void about sacred things, which removes them from vulgar contacts and withdraws them from common circulation. And the respect which is given it comes precisely from this source. Whoever makes an attempt on a man’s life, on a man’s liberty, on a man’s honour, inspires in us a feeling of horror analogous in every way to that which the believer experiences when he sees his idol profaned.¹⁰

Durkheim mentioned this idea in many of his writings and applied it to many different objects of study: why suicide has become more, and not less, outrageous in the course of individualization processes; why sensibilities towards those forms of sexual rapprochement not approved by the subject have become more intense; and how the ethos of scientific discussions is related to this. Others have drawn attention to related phenomena in everyday life, like greeting practices, or to changes in the interaction between doctors and patients. The most important application is perhaps the study of penal law, and particularly the abolition of torture. The same process which makes us sensitive to the cruelty of crimes teaches us to deprecate cruel forms of punishment. A non-Foucauldian understanding of the changes in punitive justice in the 18th century follows from this basic idea of the sacralization of the individual. (2) It would be an exaggeration, however, to claim that Durkheim had a satisfying analysis of such sacralization processes. We have to distinguish between three different dimensions of them that I call institutions, values, and practices. Institutions, for example the law, translate values into binding regulations. They are much more precise than values, but in their restriction to binding regulations they also reduce the potential meaning of a value to a very specific content. Values in this connection are the discursive articulations of experiences that produce a commitment to something that is subjectively evident and affectually intense. In practices we have a pre- or non-discursive consciousness of what is good or evil. If we think in terms of a triangle of institutions, values and practices, it is not surprising that tensions constantly arise between the three dimensions. Institutions find their legitimacy in articulated values. Human rights, for example, may be based on an understanding of human dignity, and it is not a reasonable objection against that concept to say that it is much vaguer than the human rights catalogues themselves. That is exactly the point: articulations of experiences and constitutive commitments will never be definitive. Values, on the other hand, do not exhaust practices, and the tensions between institutions and the practices of everyday life are just obvious.

 Durkheim, É., “Individualism and the Intellectuals,” in Durkheim on Religion, ed. Pickering, W. S. F. (London: Routledge, 1975): 59 – 73, here 61. Originally published as “L’individualisme et les intellectuels” (1898).

The Sacredness of the Person

31

For the understanding of cultural transformation processes, and, in this connection, particularly processes of sacralization, it is crucial to recognize that such processes can take their points of departure in each of the three corners of our triangle. Institutionalization as legal codification may come first. The West German “Basic Law,” I think, preceded the emergence of a democratic culture in Germany. Values may come first. An intellectual debate about what is justifiably good can have chronological priority, but the same is true for practices. Whether torturing a prisoner, beating one’s kids and forcing sex on an unwilling partner are just normal or are morally outrageous depends on developments in the dimensions of values and practices. Yet, it is a purely empirical question of what happened in a specific sacralization process. No ahistorical law exists here. What the role of an Enlightenment intellectual like Cesare Beccaria or of a ruler like Frederick II of Prussia was in the abolition of torture, or what the role of a subterranean process of sensitivization was, has to be investigated country by country, epoch by epoch. In the history of human rights we have spectacular moments of codification, but also drawn-out processes of social movements (like abolitionism). I cannot get into details here. To do that would also presuppose specific attention to the history of violence and the conditions for the transformation of the experience of the violation of dignity into an intensification of the commitment to human dignity. (3) Religions play a role in the dynamics of a sacralization process, but this role is very variable. Although it is true that all post-axial religious traditions contain emphatic statements on the dignity of all human beings, on the obligation to help those who suffer, irrespective of who they are, on the sacredness of life, and on the ethos of love or universal respect, it is also true that the history of religion is full of attempts to justify the restriction of universal claims to the members of specific religious or political communities and to exclude “other tribes, barbarians, enemies, or unbelievers, […] slaves, or manual workers.”¹¹ This danger threatens secular versions of universalism as well. In debates about values, religions can therefore play the role of a driving force in the direction of universalization, but they can also be an impediment. The role religiously motivated actors play in institutionalization processes depends on their political and economic interests and their definition of the situation. All attempts to deduce from the doctrinal core of a religion what political role it will play are there-

 Troeltsch, E., Christian Thought: Its History and Application (London: University of London Press, 1923). Reprinted in Troeltsch, E., Fünf Vorträge zu Religion und Geschichtsphilosophie für England und Schottland. Kritische Gesamtausgabe 17, hg.v. Hübinger, G. (Berlin: de Gruyter, 2006): 133 – 203, here 135 (for the German original, see Troeltsch, E., “Politik, Patriotismus, Religion,” in Der Historismus und seine Überwindung (Berlin: Heise, 1924): 84– 103, here 85).

32

Hans Joas

fore misguided. When a cultural innovation like the codification of human rights comes up, religious actors, individuals or collectivities, have to position themselves with respect to them. In principle, the whole spectrum of reactions is possible, from outright condemnation to complete appropriation. Pope Pius VI tragically identified the brutal persecution of the Catholic Church by the French revolutionaries – more than 3 000 priests lost their lives and tens of thousands were forced into exile – with the belief in human rights. Many people, particularly in rural districts of France and in countries occupied by the French revolutionary army, shared his reaction. The Pope was not able to distinguish between the nationalization of the Church, which he was right to reject, and the institutionalization of religious freedom, which he should have welcomed. A polarization ensued that was avoided in North America. Under the influence of the experience of Fascism and Nazism, the attitude of the Catholic Church with regard to human rights changed completely. This re-evaluation of human rights gave rise to a serious re-evaluation of church doctrine (in Vatican II), but also to attempts to detect the true roots of the belief in human rights in the Christian conception of an immortal soul as the sacred core of every person, and of our life as a gift that entails obligations that go beyond mere individualistic self-determination. Retrospectively at least, the religious tradition thus appears as the preformation of the newly emerged value or institution. Similar tensions can be found in other world religions. The sacredness of the person has to be related to other sacralizations, religious or secular, and this will not happen smoothly. (4) If we conceptualize the history of human rights as a process of the sacralization of the person, our way to talk about such a process will also affect the way we justify our commitment to the relevant values. We will have to admit that the belief in human rights and the universal dignity of all human beings is a belief, not a cognitive or normative validity claim. While we have a well-developed theory of rational argumentation about cognitive or normative validity claims, the same is not true for what I call the logic of a communication about values. My claim is that there is such a logic that differs from the structure of rational argumentative discourse in a strict sense, but is also far from a mere clash of values or identities or civilizations, or any form of irrationalist decisionism, as if ultimate values could only be chosen in an existential way without any reasoning and intersubjective plausibility. Again, I can only mention one element of a much more complex argument. The element I would like to mention can be called the necessary narrativity of a communication about values. We cannot make plausible our value commitments and defend them without telling stories – stories about the experiences out of which our commitments have arisen, stories about other people’s experiences or stories about the consequences a violation of our values had in the past. We will never understand why other peo-

The Sacredness of the Person

33

ple feel committed to other values or find other articulations of similar values evident if we do not listen to their stories. Biographical, historical and mythological narrations are, in this sense, not just a matter of illustration for didactic purposes, but a necessary part of our self-understanding and of our communication about values. A strict separation of genesis and validity is not possible in the case of values. What we need instead is a combination of narrative and argumentative elements, for which I have coined the term “affirmative genealogy.”¹² We need a structure of argumentation that is “genealogical” because it has to take into account the contingency of the genesis of values, but that does not mean that its effect will be “destructive” in the way Nietzsche and Foucault thought it to be. “An affirmative genealogy” is therefore the appropriate name for my approach. Whereas this concept or, if you like, methodology for the study of the genesis of values and value commitments refers to the specific combination of narration and argumentation in our communication about values, we also need an understanding of the ways competing values can be transformed through such a process of communication. The American sociologist Talcott Parsons had an ingenious idea in this regard. His theory of social change has as one of its dimensions “value generalization,” a process in which a value pattern is “couched” on a higher level of generality “if it is to legitimate the more specified values of all of the differentiated parts of the social system.” It is evident that the concrete example Parsons had in mind when he devised his theory was the differentiation of Church and State and the institutionalization of a “moral community” within a society “which both cuts across ‘denominational’ lines – in the more narrowly religious sense – and those of ethnic culture.” “Cutting across” here means – and this can be taken as a definition of value generalization – “the inclusion, under a single legitimizing value-pattern, of components which are not only diverse and differentiated from each other, but many of which have, historically, claimed some sort of an ‘absolutistic’ monopoly of moral legitimacy.”¹³ What I find so appealing in this concept is that it offers us a perspective on processes in which different value traditions can indeed produce a more general, mostly also more abstract, understanding of their common features without losing their roots in the specific traditions and experiences to which actors feel affectually committed. A declaration of human rights may be claimed to be the result of the Judaeo-Christian tradition or of the Enlightenment – but this does not mean  Joas, Sacredness, chapter 4.  The most detailed account of the notion of value generalization is in Parsons, T., “Comparative Studies and Evolutionary Change,” in Social Systems and the Evolution of Action Theory (New York: Free Press, 1977): 279 – 320, here 307 f.

34

Hans Joas

that other cultural and religious traditions cannot be reinterpreted, or rather, that they cannot reinterpret themselves in view of this specific articulation of a value so that their own potential to articulate this same value comes to light. Such a reinterpretation must, of course, not be an intellectualization. Disconnected from the affectual side of a tradition, it would remain ineffective. Value generalization as one possible result of a communication about values would then be neither a consensus about a universalistic principle which everybody has to accept as valid, nor a mere decision to live in peaceful coexistence despite value disagreement. The result of a communication about values can be more and less than the result of rational discourse: not a full consensus, but a dynamic mutual modification and stimulation toward renewal of one’s own tradition. In my concluding section, I would like to demonstrate the fruitfulness of this concept, and of my whole approach, in a specific application, namely the drafting of the UN Declaration of Human Rights in 1948.¹⁴ Proponents of the most diverse value traditions came together, united in their rejection of Nazism and Fascism, and formulated a declaration that does not have one single rationalist justification, but rather presents itself as the shared articulation of all the value traditions that had been part of the process. Just look at the main individual actors in the process of drafting the UNDHR. The committee chairperson was Eleanor Roosevelt, widow of the recently deceased American President FDR and experienced activist, but certainly more the organizational leader and diplomatic moderator of the group than its intellectual spiritus rector. For many years the French legal scholar René Cassin was considered to be the main author of the declaration; he was even awarded the Nobel Peace Prize for his achievements in this regard. He was the son of an Orthodox Jewish mother and a secular-“republican” French father. He was active in the French anti-Nazi “Résistance” and close to General de Gaulle during the war. Two things are remarkable with regard to Cassin’s role. Although being a secular rationalist himself, he seems to have been very open to the non-reactionary wing of French Catholicism and to have received “on a number of occasions” “discreet personal encouragements from the Papal Nuncio in France,” at the time Angelo Roncalli, the future Pope John XXIII.¹⁵ The other remarkable point is that before the end of the war, and despite the traditional French emphasis on human rights

 Joas, Sacredness, 182 ff.  Glendon, M. A., A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001), 132; Vögele, W., Menschenwürde zwischen Recht und Theologie. Begründungen von Menschenrechten in der Perspektive öffentlicher Theologie (Gütersloh: Gütersloher Verlagshaus, 2000), 220. The quotation is from Glendon.

The Sacredness of the Person

35

as an achievement of France, it is difficult to find any references to them in his writings, as is also true for other figures of the Résistance. Recent historiography agrees that Cassin’s legal expertise was very important in the process, but that others seem to have been much more influential with regard to the precise formulations than Cassin. The two most important “authors” of the declaration were Charles Malik and Peng-chung Chang. Malik was a Christian Arab, a Greek Orthodox philosopher from Lebanon, former student of Whitehead in the U.S. and Heidegger in Germany (where he was attacked by young Nazis because of his “Semitic” appearance), spokesman for the Arab peoples in the conflict about the partition of Palestine, and deeply influenced by the Neo-Catholic discourse of personalism and the “dignitarian” understanding of rights there and in continental Europe rather “than by the more individualistic documents of Anglo-American lineage.”¹⁶ The other main author is even more colourful: Peng-chun Chang, Chinese philosopher, playwright and diplomat, who came from a Confucian background and had taken his doctorate at Columbia University in NYC with John Dewey. As a member of the diplomatic service of pre-communist China, he had taken over the task of making the Japanese massacres in China (the so-called “Rape of Nanking”) known in the world. As ambassador to Turkey, he had given talks in which he compared Confucianism and Islam, or Chinese and Arab history; as ambassador to Chile, he had come into contact with the lively human rights discourse in Latin America. His constant critique of the attempts to see either an Enlightenment understanding of “reason” or a specific religious tradition as the only legitimate foundation of human rights was crucial for the intellectual exchange that took place in the committee. Other important contributors seem to have been Herman De la Cruz, a Socialist from Chile and friend of Salvador Allende’s since childhood, who brought in the Latin American discourse just mentioned, and Hansa Mehta, a female Indian delegate, who succeeded, among other things, in making the language of the declaration gender-neutral. I do not want to offer an idealized picture here of the discussions in this committee. No doubt, there were many “disagreements, misunderstandings, personal quirks, national rivalries, and colonial resentments,”¹⁷ but despite all these, and serious external obstacles, the process of value generalization was, in the end, successful. Even what may look to us today as the hardest points – namely the attitude of Muslim representatives to conversion away from Islam, and to the status of women in the family and outside it – proved not to

 Glendon, World, 227.  Ibid., 50.

36

Hans Joas

be insurmountable. With the exception of Saudi Arabia, all the participating states with large Muslim populations accepted the declaration. Only a detailed narration could really do justice to the dynamics of the process of value generalization, but maybe the few elements of such an account mentioned here make plausible my claim that we have here, indeed, a prototypical case of value generalization. The myth of a Western ideological construct imposed on the rest of the world cannot survive close historical scrutiny of the drafting process. Unfortunately, I cannot conclude, however, on this relatively optimistic note. It is true that successful processes of value generalization are possible, and it is also true that, to some extent at least, horrible crimes can galvanize support for an intense commitment to, and reformulation of, universalist values. But we cannot suppress the question as to which conditions made such a free-ranging discussion process possible: what gave these individuals the freedom to enter into such a process; what opened the window of opportunity for them and for this drafting process in general? The closer we look at the conditions for the process, the more disillusioned we become. We can neither speak of an uncontroversial reaction to Nazism nor of a long and slow, but clearly progressive, process of increasing commitment to the human rights idea. In the inter-war years, “some far-sighted international lawyers formulated noble declarations and tried to pressure the League [of Nations.] into adopting them: [but] almost no one, at the time, took any notice.”¹⁸ Something similar could be said with regard to the reception of the human rights discourse in anti-colonial circles, or among blacks in South Africa and the U.S. What changed in the war years was, on the one hand, the fact that the Allied Powers had, from Roosevelt’s “Four Freedoms” speech on, formulated their war aims in a way that used the human rights language, and, on the other hand, the fact that there had been a switch from the League of Nations regime of the protection of ethnic minorities to a regime of the protection of the rights of individuals. Two historical developments make these two changes look rather sinister in retrospect. Toward the end of the war, already before the capitulation of Germany, at least two of the Great Powers (Britain and the Soviet Union) attempted “to brush human rights under the carpet.”¹⁹ It is due to the “storm of criticism”²⁰ from (mostly American) non-governmental organizations – Catholic, Jewish, and Protestant labor and peace movements –and to governments of so Mazower, M., “The Strange Triumph of Human Rights, 1933 – 1950,” The Historical Journal 47 (2004): 379 – 98, here 380.  Ibid., 392.  Ibid.

The Sacredness of the Person

37

called small states that these attempts were not successful. And part of the reason why some – like Eduard Benes, the President of Czechoslovakia – found a human rights declaration acceptable was that it allowed them the mass expulsion of the German and Hungarian minorities, something a renewal of the minority rights policy would have made legally impossible. “Behind the smokescreen of the rights of the individual, in other words, the corpse of the League’s minority policy could be safely buried.”²¹ Even the American government representatives involved in this process, who were probably less cynical than the Soviets and the British, made it very clear – to Eleanor Roosevelt and others – that they would not tolerate any serious interference into their national sovereignty. That is why a declaration was the way out. Without any implementation procedures – no courts, no convention – a declaration was thought to be unproblematic. Fortunately, the time after the declaration has shown that values and a declaration of generalized values can exert a considerable influence on intellectual discussions, lived practices, and even political and legal institutions. I see the history of human rights as a complex interplay of changes in three dimensions: values, practices and institutions. The crucial term for this process, for me, is the “sacralization of the person.” Sacralization is a process on the level of practices, often articulated in the communication about values and sometimes institutionalized in moral and legal regulations. “Sacralization of the person” can have religious and secular motivations and articulations; it can be driven by positive, enthusiastic, and by negative, traumatic, experiences. Institutionalizations require a constellation in which actors with value-rational or instrumental orientations end up translating the subjective certainty of value commitments into officially declared values or normative prescriptions. There is no logical reason why one of the three dimensions – values, practices and institutions – should always have chronological priority. But it is also clear that in the long run, human rights can only have a firm foundation in our world if they are supported in all three dimensions: if they are guaranteed by our official institutions and propagated by NGOs, if they are argumentatively defended in intellectual debates about values, and if they are incarnated in the practices of everyday life.

Bibliography Durkheim, É. “Individualism and the Intellectuals.” In Durkheim on Religion, edited by Pickering, W. S. F., 59 – 73. London: Routledge, 1975. Originally published as “L’individualisme et les intellectuels” (1898).

 Ibid., 389.

38

Hans Joas

Glendon, M. A. A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights. New York: Random House, 2001. Jellinek, G. The Declaration of the Rights of Man and of Citizens. A Contribution to Modern Constitutional History. Westport, CT: Hyperion, 1979. For the German edition see: Jellinek, G. Die Erklärung der Menschen- und Bürgerrechte. Ein Beitrag zur modernen Verfassungsgeschichte, 3. Aufl. München: Duncker & Humblot, 1919. Joas, H. The Sacredness of the Person. A New Genealogy of Human Rights. Washington, D.C.: Georgetown University Press, 2013. For the German edition see: Die Sakralität der Person. Eine neue Genealogie der Menschenrechte. Berlin: Suhrkamp, 2011. Mazower, M. “The Strange Triumph of Human Rights, 1933 – 1950.” The Historical Journal. 47 (2004): 379 – 98. McLeod, H. Religion and the People of Western Europe, 1789 – 1989, 2nd ed. Oxford: Oxford University Press, 1997. Parsons, T. “Comparative Studies and Evolutionary Change.” In Social Systems and the Evolution of Action Theory, 279 – 320. New York: Free Press, 1977. Reinhard, M. Paris pendant la Révolution. 2 vols., vol. 1. Paris: Centre de documentation universitaire, 1966. Schäfer, H. W., Hg., Hans Joas in der Diskussion. Kreativität – Selbsttranszendenz – Gewalt. Frankfurt/Main: Campus, 2012. Tackett, T. “The French Revolution and Religion to 1794.” In Enlightenment, Reawakening and Revolution, 1660 – 1815. The Cambridge History of Christianity vol.7, edited by Brown, S. J. and Tackett, T., 536 – 55. Cambridge: Cambridge University Press, 2006, 536 – 55. de Tocqueville, A. The Ancien Régime and the Revolution. London: Penguin, 2008. Originally published as L’Ancien Régime et la Révolution (1856). Troeltsch, E. Christian Thought: Its History and Application. London: University of London Press, 1923. Reprinted in Troeltsch, E. Fünf Vorträge zu Religion und Geschichtsphilosophie für England und Schottland. Kritische Gesamtausgabe Band 17, herausgegeben von Hübinger, G., 133 – 203. Berlin: de Gruyter, 2006. (for the German original see Troeltsch, E. “Politik, Patriotismus, Religion.” In Der Historismus und seine Überwindung, 84 – 103. Berlin: Heise, 1924. Vögele, W. Menschenwürde zwischen Recht und Theologie. Begründungen von Menschenrechten in der Perspektive öffentlicher Theologie. Gütersloh: Gütersloher Verlagshaus, 2000.

Wilhelm Gräb

The “Universal Declaration of Human Rights”: A Confessional Basis of a Universal Religion? It was a completely new way of thinking about the question of religion’s universality, given by religious thinkers of the Enlightenment, and their attention to inalienable human dignity illustrates the point. These thinkers took a position in relation to religion and church from which they placed religion and church into a critical process of transformation: to enforce the universally human character of religion in its historical forms of realization. Without a doubt, it often happened that they understood Christianity as the absolute religion, claiming the highest value. They believed that religion found its fullest realization in Christianity. Today we look back critically at this conclusion. However, that should in no way imply the Enlightenment’s transformation of the study of religion made no important contributions. In particular, the Human Rights discourse is one such contribution. This discourse has had an enormous impact on the self-understanding of religions. But in fact, this impact should be examined carefully in each of the different religions for one finds that it happens in very different and even contradictory ways. I myself am only able to discuss it with regard to Christianity. It is important to say right at the beginning, that churches and formal church theology denied much of the Enlightenment’s analysis of religion and resisted acknowledgement of Human Rights for a long time. In regard to Christianity it will furthermore be important to pay attention to those transformations which triggered the Enlightenment’s Human-Rights-thinking and which keep it dynamically going until today. These pre-conditions make secularization theory untenable and show rather a religion of humanity through the historical persistence and ongoing transformation of empirical religions. In showing that the historical movement towards a religion of humanity has not passed by concrete religions and churches but passes through them, I want to present the example of South Africa and its Human Rights discourse with references to the continuing debate concerning the history of Apartheid.

40

Wilhelm Gräb

A South-African Example Desmond Tutu’s book God is not a Christian is a collection of sermons, speeches and statements from the former Anglican bishop of Cape Town.¹ “God is clearly not a Christian. His concern is for all his children” insisted Tutu in a sermon in the church of St. Martin in The Fields near Trafalgar-Square in London, after the fall of the Berlin Wall and at the end of Apartheid in South Africa.² For Tutu, there is no conflict between human rights’ universal validity and the obligation of Christians to speak up for human rights out of their Christian belief. This is not because Christianity might have invented human rights and their worldwide distribution would be more successful under the Christian prefix. Such a cultural imperialistic interpretation of the relationship between human rights and Christianity was far from what Tutu had in mind. It was rather his deep concern to win all religions for a universal enforcement of human rights in all his sermons and speeches, which he has delivered since the 1980’s all over the globe. Tutu confesses his Christian faith in strong terms. He often underlines that it is essential to take his own faith seriously. But taking his own religion seriously does not mean to devalue other religions or to refuse the idea of a natural universal religion that is inherent in nature of human beings from the beginning. Religions are different, the Gods in whom they believe are different. Despite all that they have something in common: they reveal a transcendent element in humanity. God is not a Christian. “God is clearly not a Christian. His concern is for all his children.” Christians do not have an exclusive relationship to God, and God has no exclusive relationship to Christians. He is the God of all human beings and they have their different relations to him. This also is important to Tutu: religions are not identical, “the” God can be understood in many different ways. As God is never without the individual relation, “we must hold to our particular and peculiar beliefs tenaciously.”³ Tutu combines these confessions to a religious individuality lead by the opinion that God generally could only be thought and believed in the different relationships people have with him. God is only God in the plurality of the individual religious perspectives on him. For relations among religions, Tutu stresses, this means that “we must be ready to learn from another,

 Desmond Mpilo Tutu, God is not a Christian, ed. John Allen (New York: Harper One, 2012).  Ibid., 12.  Ibid., 6.

The “Universal Declaration of Human Rights”

41

not claiming that we alone possess all truth and that somehow we have a corner on God.”⁴ By acting in this way we will discover many things we have in common. What we actually have in common depends on what we are searching for. For Tutu the direction is clear. All religions he mentions have a transcendent referent that is compassionate and concerned; all see human beings as “creatures of this supreme, supra-mundane reality, with a high destiny that hopes for an everlasting life lived in close association with the divine.”⁵ This distinction of human beings as “creatures” of a higher holy reality and them being like this in “close association with the divine” is what Tutu hopes to find as the common thing of the different religions. Each human being is holy, a taboo for everyone who is willing to hurt him. Tutu is delighted that he finds this holiness of human beings in the Christian tradition as well. “Surely, it is good to know that God (in the Christian tradition) created us all (not just Christians) in his image, thus investing us all with infinite worth.”⁶ It is equally important for Tutu to emphasize that just like Christianity other religious traditions regard human beings with holiness as well: Surely we can rejoice that the eternal word, the Logos of God, enlightens everyone – not just Christians, but everyone who comes into the world; that what we call the Spirit of God is not a Christian preserve, for the Spirit of God existed long before there were Christians, inspiring and nurturing women and men in the ways of holiness, bringing them to fruition, bringing them to fruition what was best in all. We do scant justice and honor to our God if we want, for instance, to deny that Mahatma Gandhi was a truly great soul, a holy man who walks closely with God. Our God would be too small if he was not also the God of Gandhi.⁷

Christianity is neither allowed to claim to be the religion that discovered holiness of human beings (which would be a historical mistake in any case) nor is it allowed to claim that Christianity alone is the best and only condition for the enforcement of human’s holiness. The access to the sanctuary of human beings and work towards the preservation of this sanctuary can be found in other religious convictions as well. To clarify that he recognizes motifs of a universal religion of humanity in his own Christian belief, Tutu now avoids consciously the usage of Christian and uniquely biblical language while speaking about religion. This can be seen in particular when he describes his participation in the Truth and Reconciliation    

Ibid. Ibid., 7. Ibid. Ibid.

42

Wilhelm Gräb

Commission. The Truth and Reconciliation Commission was actually founded after the end of Apartheid as a compromise between those who plead for a general amnesty and those who advocated a process, similar to the Nuremburg trials, in which the offenders should be brought before court to get their just punishment. In contrast to this, Tutu recommended a concept not of retributive but of restorative justice. This was also the proposal which the parliament, after detailed consultations between the old and the new government, agreed on. The victims should have the opportunity to tell their stories and the offenders should have the possibility to admit their guilt. This path of restorative justice symbolized and expressed Tutu’s Christian belief in reconciliation. In the divine justification of the sinner and the human force to reconciliation that results out of the belief in God’s righteousness, he saw a decisive contribution of the Christian religion to South Africa’s democratic reconstruction. Nevertheless, Tutu avoids the usage of language that is influenced by Christian belief. He often speaks about an outer perspective and about the Christian belief as one religious worldview among others. It is obvious that Tutu tries to point out that religion—and with this the relation between a human to something transcendent—are expressed in various ways within different religions. Each religion has its own specific way to express this relation. Religions even respond to secular people and people who have no specific relation to any religion at all. Religion is something that belongs to the human being. This can be seen in the way that religion resists all determining associations of individual human beings with their particular circumstances. Religion provocatively insists that one has dignity simply because one is a human being, regardless of one’s characteristics or affiliations, independent from one’s deeds or misdeeds. Religion shifts one’s being into an unconditioned horizon. One’s right to exist derives from conditions that are independent of oneself. A human being is not able to and does not have to earn this right. One’s right to exist is derived from something that is beyond oneself, it derives from God. In Christian discourse this means that a person is God’s creature, his beloved child, and a justified sinner. But Tutu only speaks rarely and cautiously in this biblical language. Tutu counts on a transversal religious reason to which all humans with good will are responding. This transversal religious reason is the truly religious matter in all religions: that is, religion sees the individual human being from the perspective of a self-transcended humanity founded in the Unconditioned. Religion is a transcendent determination of human existence that, then in a twist, revokes itself and gives humanity back to itself. Tutu used such common religious language, compelling even for secular people, in referring to the “essential humanity of the perpetrator of even the

The “Universal Declaration of Human Rights”

43

most gruesome atrocity”⁸ in his plead for a path of reconciliation. He could have spoken about the public-political force of Christian belief in reconciliation. But instead he makes recourse to “essential humanity” also that of “the perpetrator”. He mentions the fact that no one could deny the human dignity of a person, however heinous his deed. This is a reformulation of a religious interpretation of human rights discourse from Tutu’s Christian orientation. Tutu emphasizes that the evidences of what religion generally contributes to human life and society show religion indispensable in the realization of humanity. In this way the path of restorative justice should become passable for people who come from other non-Christian, religious worldviews too. Tutu specifically points towards the African worldview of the ‘Ubuntu’. Ubuntu is a Xhosa-word that expresses the essential individual’s affiliation to a community. Ubuntu, as well, stands for the transcending of each individual human being in a larger, infinite reaching entirety. For the community of Ubuntu that qualifies the being of an individual is not only the visible tribal community but also the chain that links to the ancestors. The African worldview of Ubuntu together with the idea that human beings are made in God’s image found in the Hebrew Bible and the Christian understanding of the unconditioned justification of the sinner altogether represent for Tutu an integral and universal religion of human rights. At the same time it is important for him to point out that these three ideas are, on the one hand, indispensable elements in the construction of this universal religion of human rights while, on the other hand, that religion cannot be identified with them.⁹ Tutu is not interested in a historic independence of different religious traditions and worldviews. He is rather interested in “the religion” as the plurality of religions, that is in an aspect that is undeniable in human beings. “Don’t we have to be reminded too that the faith to which we belong is far more often a matter of the accidents of history and geography than personal choice?”¹⁰ This is an allusion to Rousseau, who also had the opinion that the question to which religion we belong is a question of geography. But it is also a suggestion that religious belief belongs to the conditio humana. Tutu then advances ideas of natural law and natural religion by referring to Paul’s argument of a natural theology, and to Kant and the Enlightenment. Everyone of God’s human creatures has the capacity to know something about God from the evidence God leaves in his handiworks (Romans 1:18 – 20); this is the basis for natural

 Ibid., 42.  Ibid., 21– 24.  Ibid., 16.

44

Wilhelm Gräb

theology and natural law. Immanuel Kant spoke about categorical imperative. All human creatures have a sense that some things ought to be done just as others not to be done. This is a universal phenomenon - what varies is the content of natural law. […] In his speech before the Areopagus, Paul speaks about how God created all human beings from one stock and given everyone the urge, the hunger, for divine things so that all will seek after God and perhaps find him, adding that God is not far from us since all (not just Christians) live and move and have their being in him (Act. 17: 22– 31). Talking to pagans, Paul declares that all are God’s offspring.¹¹

The “universal phenomenon” is the phenomenon of a religious consciousness that was given initially to the human being. This religious consciousness becomes concrete in an openness to transcendence: searching for and questioning something that is beyond oneself. The particular religions build themselves up on this natural religion. But they also presuppose this natural religion as the universal resonance chamber that outlives their own history. Natural religion exists in the particular religions. But not exclusively; pointing out this fact is very important for me. There is one universal religion in all concrete religions that acts through and beyond them, a religion which we should by all means call: the religion of human rights. Although Tutu has not articulated it in such an explicit way, it is in my opinion implied by his argumentation in the way he describes the particular, concrete religions—and not only Christianity—by interrogating their contribution to the enforcement of human rights. Doing this he tries to see the best in each of them as something that serves the humanity of human beings. We must not make the mistake of judging other faiths by their least attractive features and adherents: It is possible to demolish the case for Christianity by, for instance, quoting the Crusades, or the atrocities of the Holocaust, or the excess of apartheid. But we know that that would be unfair in the extreme, since we claim them to be aberrations, distortions and deviations. What about Francis of Assisi, Mother Teresa, Albert Schweitzer, and all the wonderful and beautiful people and things that belong to Christianity? We should want to deal with other faiths and their best and highest, as they define themselves, and not shoot down the caricatures that we want to put up.¹²

 Ibid., 10.  Ibid., 16.

The “Universal Declaration of Human Rights”

45

The Universal Declaration of Human Rights as a confessional basis of a universal religion Human rights were initially formulated in the political revolutions of the 18th century. They can be traced back to the American Declaration of Independence as well as to the French Revolution. Finally they found their approval under international law in the UN-Charter with The Universal Declaration of Human Rights. Let us take a brief look at the three preambles of those three declarations of human rights: in each three of them there is no reference to a particular, concrete religion, not even to Christianity. There can be no talk of any explicit theological basis of human rights. Nevertheless one has to admit that religion is a topic in those declarations. One even can speak decidedly of a confessional basis, that explicitly characterizes the American and French Declaration of Human Rights and that religious implication was maintained in the UN-Charter of 1948. The American Declaration of Independence from 1776 insists that “all men are created equal, that they are endowed by their Creator with certain inalienable Rights” and the French National Assembly explicitly claims that it “recognizes and declares” human- and civil rights “in the presence and under the auspices of the Supreme Being.” In The Universal Declaration of Human Rights from 1948 the explicit reference to God is absent. That the human being has inalienable rights is no longer directly connected to the authority and will of a God anymore. Instead of this there is talk about an “inherent dignity” which belongs to every human being. Because it belongs to “all members of the human family”, all of them have “equal and inalienable rights”¹³. It is obvious that talk of the “inherent dignity”, which first can be found in The Universal Declaration of Human Rights from 1948, is functionally equivalent with the reference to God from the Declaration of Human Rights of the 18th century.¹⁴ That nations with different cultural and religious backgrounds would sign the Declaration of Human Rights from 1948 makes the omission of the reference to God more evident. But already the American and French human rights declaration claim a universal approach. Both of them combined this universal approach with a confessional base: Because it is God who makes all human beings, apart from what differentiates them, as beings standing under God, the Supreme Being and their Creator, human beings should have equal rights. This religious  Cf. http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf (13.02. 2013).  Cf. The Declaration of Independence, July 4, 1776: http://www.archives.gov/exhibits/char ters/declaration_transcript.html; The French Declaration of the Rights of Man and the Citizen, August, 1789: http://www.historyguide.org/intellect/declaration.html (13.02. 2013).

46

Wilhelm Gräb

meaning also becomes obvious in talk of “inherent dignity”. The language of inherent dignity places human rights under conditions that are ineluctably given to every human being and which cannot be the subject of negotiation in the specific communities to which human beings belong. Human dignity belongs to every human being in an unconditioned way. This is precisely what it means to see someone through the eyes of faith. At the end of the 18th century this faith could be easily pronounced as faith in God, the Creator. In the UN-Charter the confessional foundation of the universal approach of human rights had to change, even though only semantically. Only with such a change it was possible for so many different cultural and religious traditions to accept and adopt the Declaration. This cultural transformation and adaption is in fact what happened at the beginning and merged in the process of placing the Declaration of Human Rights in different cultural and religious traditions. The process is not at all completed and is, with regard to religion, often controversially discussed because the role of religion in human rights discourse often becomes closely related to specific religions. And then one often sees oneself, of course, quickly involved in a very ambivalent history. One has to confess that Christian churches accepted the idea of human rights quite late and even today often accused of not advocating for human rights very strongly. Religions have their own legal orders that can lead to conflicts with national law and even with human rights, especially in cases where human rights have entered into state legal orders. But that religion is necessary for the realization of humanity, that religion constitutively belongs to human being: this is something that was registered in the declarations of human rights from their beginning and finally makes The Declaration of Human Rights from 1948 the confessional base of a universal religion. Although there were already attempts during the French Revolution to found a practice of a new humanitarian Christianity on the basis of the Declaration of Independence, contrary to this universal approach there is the approach of particularization of the general in specific religions, churches, and denominations. Consider the theophilanthropists, a humanistic religious orientation that held their services from 1794 to 1810 in France. Often these services took place in catholic churches which partly were used for theophilanthropic and partly for catholic services. One of these churches was Saint-Merri in the center of Paris. The services of the theophilanthropists were well attended but then became prohibited by Napoleon. In our days it is very rarely the case that religions, let alone states and their legal apparatuses, can prohibit such free human-rights-based religious organization or even desire to. In contrast we are seeing the universal norms of human rights appear in traditional religious forms and cultures all over the world. How-

The “Universal Declaration of Human Rights”

47

ever, the negotiation of a universal religion of humanity in particularized forms of concrete religious traditions proves challenging. Wherever the idea of human rights enters, it changes the constituted religions. And more as that happens: The idea of human rights even can become a religious movement or organization. It articulates itself as it is in reality: a belief in the human being, in the transcendent divine determination of the human, in an inventive creativity and hence in man’s inviolable dignity. How traditional religious cultures transformed under the impact of the human rights campaign can very well be seen in the fact that the theology of the second part of the 20th century understood human dignity as an expression, if not almost as a consequence, of man’s likeness of God. This shows how, for theology, the human-religious understanding of human-dignity was enriched by the religion of human rights. Like all other particular human living conditions, the particular, concrete religions by no means become unimportant in the universal approach of human rights. The concrete religions face the challenge and opportunity of sharpening their particularity in a way that connects to a common religious dimension. This can take place through re-examination of religious traditions’ practices and self-understandings. I am talking about a synchronization of people’s concrete religious practices with humanity’s actual, existential condition. The religions ought to further the universal humanity-religion of human rights by means of their historical, ritual and ideological resources. People long to feel at home in the religion into which they are born and grow in the way that human beings always already feel at home in the universal transcendence of their humanity. The world is growing more and more together. We call this phenomenon globalization. Globalization is driven by information technologies and economy with high speed. But more than a billion people do not benefit from this technological and economical globalization. They do not have access to internet. They do not get a chance to participate in the wealth of their countries and regions. Their human rights to life, freedom, self-development and security are refused. Particular differences in sex and race, skin-color and language, religion and nation place hard limits on the global realization of human rights. Especially the concrete religions are strict border guards against the enforcement of equal rights to freedom, justice and security for all human beings. They often prevent that people “act towards one another in a spirit of brotherhood.”¹⁵ In South Af-

 UN-Declaration of Human Rights, Art. 1. Cf. http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf. (13.02. 2013).

48

Wilhelm Gräb

rica, for example, there is no other hour during the week in which the racial segregation can be felt in such a strong way as each Sunday morning between nine and eleven o’clock, while the white, the black, the colored or the Indian community hold their services, each alone, apart from the others.

On the way to an universal religion of human rights The Declaration of Human Rights did not emerge from any concrete religion, not even from Christianity and its church. Its starting point was the experience of pain and harm, the experience of brutal non-recognition, “barbarous acts”¹⁶, as it is called in the UN-Charter’s preamble from 1948. The screams of those deprived of their right to live by the totalitarian regimes of National Socialism and Stalinism, of those tormented, tortured, and killed because of racial, national, political or religious reasons or because of their sexuality, can still be heard in the declaration. Until today, it is the experience of violations of human rights that provide the appeal to keep and enforce them. Yet, this is only possible because they have a global status as a universal valid norm under international law and were turned into enforceable rights in the constitutions of many countries. If a blatant violation becomes public anywhere in the world, one will immediately appeal to human rights. Recent examples include the brutal rape and murder of young Indian women and the restrictions of same-sex relationships in Russia, to name only two. Such violations clearly point out that human rights must prevail upon (and at times be protected from) cultural traditions and the symbolic systems of religions—both of which are often associated with the political powers that use them for its needs. For this reason the defense and enforcement of human rights is often suspected of acting in a cultural-imperialistic way. When, in addition, wars are declared under the pretext that they have an interest in supporting human rights, although in reality the main interest is rights to oil production, these suspicions are clearly supported. Hence, human rights are often understood as a continuation of western colonialism. Nevertheless, it must be said that only through an intervention, legitimated by international law, in the affairs of a state that either threats the security of its citizens or is not able to ensure it, it is possible to prevent further violations (as for example currently in Mali).

 UN-Declaration of Human Rights, Preamble. Cf. http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf (13.02. 2013).

The “Universal Declaration of Human Rights”

49

The question is whether international interventions for the enforcement of human rights, especially if they induce a military conflict that creates additional more harm, have cultural-imperialistic features, even if the intention was good. This question actually opens up a quite difficult issue in the end. Because the intention behind these interventions to enforce the human rights is their claim of a universal normativity and thus finally also of a universal religion of the human. The idea of human rights is not something that someone invented at his work desk. They exist in a concrete manner in the heads and hearts of numerous people, who stand up for them as they constitute their value orientation and religious belief. Thus, it must be generally accepted that on the one hand the human rights require self-determined values and on the other they support certain values that are not equally appreciated and practiced in all cultures and religions around the world. Next to this universal religion of human rights cultural and also religious differences will indeed continue to exist. Religious ties and belongings supply these values with a strong potential of motivation for daily living. All religious cultures are different in what they consider law and rights and in how they appreciate individual choice with regard to sexual orientation and the choice of partnership, profession and residence. You can find many different cultural opinions about the relation between the individual and community, about the idea of physical integrity, about who takes precedence in the relation of individual and community and hierarchy of individual and community (e. g. family, clan, and nation). They might all be different but at the same time, they all have a religious foundation. Likewise, you will find different but always religiously founded opinions about the idea of equality of men and women, about religious tolerance or about the estimation of democratic participation. The UN-Commission already knew that there is a high tension between a universal normativity of human rights and the pluralism of all the different religious cultures in the constituting phase of The Universal Declaration of Human Rights. In his book on human right’s genealogy Hans Joas offers a good insight into the work of the UN-commission, in which delegates from 18 nations participated.¹⁷ He especially points to two particular delegates namely Charles Malik, the Lebanese representative, and Peng-Chun Chang, the Chinese representative. Charles Malik, speaker for the Arabian world, was an orthodox Christian whereas, according to Joas, Pen-Chun Chang often referred to his Confucian

 Hans Joas, Die Sakralität der Person: Eine neue Genealogie der Menschenrechte (Berlin: Suhrkamp, 2011), 251– 281, 273 f. English translation: The Sacredness of the Person. A New Genealogy of Human Rights (Washington, D.C.: Georgetown University Press, 2013).

50

Wilhelm Gräb

background during the drafting process of the Declaration. Yet Pen-Chun Chang was also the person who warned on the one hand against a foundation for the human rights that is limited to reason and on the other against a special emphasis of one single religious tradition. He was interested in a synthesis of all the different religious traditions of vindication into one common value system. This is consistent with the fact that there is no reference to a universal ratio of humans but to a universal “faith”¹⁸ in a human religious conviction in the preamble of the documents of the constitution: “the faith in fundamental human rights, in the dignity and worth of the human person.”¹⁹ It proclaims the human rights movement as a religious movement, as a movement that is based on a faith, faith in the possibility of creating conditions around the world that gives every human being access to certain rights, as Hanna Arendt interpreted The Declaration of Human Rights’ fundamental claim. The faith that is apparent in the United Nation’s founding documents as well as in their declaration of human rights was a result of the work of people coming from different cultures, religions and parts of the world. What becomes evident is that this faith never would have gained such popularity if it was not to a large extent compatible with the concrete, positive religious faith that is practiced in the different religions and cultures in so many different ways. Still, what remains important is the question who will take charge when the concrete religions and cultural traditions merge to one universal religion of human rights. Is it the normative universality of human rights with its attempt to find recognition as official rights? Or will it be the particular religious traditions who only want to assign human rights to own fellow believers as they think them to be maintained according to their own norms of faith this way?²⁰

Conclusions There is no doubt, that the validity of universal human rights has to be transmitted in accordance with the self-understanding of particular and regional reli-

 UN-Declaration of Human Rights, Preamble.  UN-Declaration of Human Rights, Preamble.  The person, who was responsible for the drafting of the United-Nations Charter’s preamble, was Jan Smuts. He wrote the impressive words of “the faith in fundamental human rights, in the dignity and worth of the human person” that I just quoted (Preamble, UN-Declaration of Human Rights). Smuts was head of the South-African government several times in the 1930s and the early 1940s although he was not responsible directly for the policy of racial Apartheid, enacted in 1948, the same year The Declaration of Human Rights was enacted.

The “Universal Declaration of Human Rights”

51

gious cultures. To a certain extent, human rights have to incarnate in the minds and hearts of people during their acquisition process in the different cultures and religions. Therefore, one talks about a necessary cultural synthesis and value generalization in human rights discourse. But in this process of synthesis and generalization it has to be ensured that human rights remain intact and inviolable and that states and societies follow their requirements. Cultural synthesis and value generalization will only be of any help if they support the enforcement of human religion within historical religions, if the universal religion of human rights finds recognition in the particular religions and in the cultures that are merged with them. This will have practical consequences for religious as well as for judicial practice in the countries in which human rights claim validity. First of all this means that religious cultures have to legitimize themselves to human rights and not vice versa. Religions, their practices and legal interpretations have to prove themselves to be compatible with human rights. Secondly, this means that one has to insist on the validity of human rights, in particular on the right to self-determination, even if they are opposed to religious ideas of morality. When the human right for self-determination, for justice and security is valid in a state, these rights have to be valid for all people, independently from their religious denomination or ethnicity, even if this right might contradict the norms of a religious community, for instance freedom of sexual orientation. Therefore, the universal religion of human rights can hardly be enforced without conflicts with religious and political powers. Hence this religion will be all the more vigorous the more states implement human rights into their constitutions and the more people are committed to human rights. People might come from concrete religions, they might stay in contact with them or just pass them by, but they are all connected in a worldwide community with the same spirit of universal religion of human rights. But it is also clear that faith in the holiness of every human being, confessed by the universal religion of human rights, will gradually change the religions. It is a faith in the holiness of the human being—not a human being formed and acting in thus and such a way, but of the human being just the way it already exists. This faith alone will change the world. It changes the world through the way that love, mercy and forgiveness are practiced, that there will be help where people are victimized by violence and state terror, where hungry people suffer from starvation and have to escape from their home countries. Indeed, a lot of things need to be done in this line. Without the implementation of human rights into the constitutions of states and the enforcement of their validity under international law, much less would have been achieved towards a more human world. Yet, all this effort is based on the faith in the holi-

52

Wilhelm Gräb

ness of the human being. It is this faith, in the end, that encourages people to fight for adherence to and enforcement of human rights, whether they are members of a religious community or not. However, it should be highlighted that people with religious background, just like Desmond Tutu, do fight for human rights worldwide, that religious moral values lead to an active cooperation in NGO’s and that churches and parishes offer room and financial help to human right groups.

Bibliography Tutu, D. M., God is not a Christian, ed. by J. Allen. New York: Harper One, 2012. Joas, H., Die Sakralität der Person. Eine neue Genealogie der Menschenrechte, Berlin: Suhrkamp, 2011/The Sacredness of the Person. A New Genealogy of Human Rights, Washington, D. C.: Georgetown University Press, 2013. UN-Declaration of Human Rights. http://www.un.org/en/documents/udhr (30.01.14).

Sarhan Dhouib

Limits of the Culturally Relative View of Human Rights Si les hommes peuvent se réunir sur des idées communes, par exemple en matière de droits de l’homme, ce ne peut être que par l’effet d’un accord transculturel, et non de manière transcendante et abstraite. Le contraire serait l’une des formes de la tyrannie. [If men are able to unite on common ideas, such as in matters of human rights, this agreement can only be achieved via transcultural consensus, and not in a transcendent or abstract sort of way. The converse would be one of the forms of tyranny.] Yadh Ben Achour ¹

Introduction In this age of globalization, present-day societies are increasingly confronted by problems that arise out of the meeting of cultures through migratory movements, economic integration and so on. Under conditions of co-existence and co-operation between different cultures, there is a need for critical reflection within the human rights debate. In this connection, the discourse on strategies of implementation and substantiation of human rights plays an important role in the restructuring and reconstitution of cultural and political identity. No individual culture or culture in the universal sense, exists as a hermetically-sealed entity. Culture is understood here in a broad sense: as man’s breaking free from the limiting conditions of his natural state through the training of his mental and moral capabilities. Culture is therefore also the quintessentially inclusive concept of human organizations and works in any one locale or at any one time.² According to UNESCO’s definition, culture can “in its widest sense […] be said to be the whole complex of distinctive spiritual, material, intellectual and emotional features that characterize a society or a social group. It includes not only the arts and letters, but also modes of life, the fundamental rights of the human being, value systems, traditions and beliefs.”³

 Yadh Ben Achour, La Deuxième Fâtiha. L’islam et la pensée des droits de l’homme (Paris/Tunis, 2011), 109.  Cf., e. g. Arnim Regenbogen/ Uwe Meyer, eds., Wörterbuch der philosophischen Begriffe (Hamburg, 1998), 367 (Art. Kultur).  [“Mexico City Declaration on Cultural Policies,” in Final Report from the International UNESCO World Conference on Cultural Policies, held in Mexico City from 26th July to 6th August 1982

54

Sarhan Dhouib

Within individual cultures there exist a variety of moral values and normative concepts. This is a simple proposition, but one that is by no means self-evident. In political debates, cultures are regularly portrayed as distinct and separate entities which, as such, are neither capable of influencing each other nor of adhering to any internal dynamic. Conversely, the intra- and intercultural human rights debate shows how boundaries within a single culture, as well as those between cultures, can be dissolved and shifted, and how new boundaries can be drawn. The boundaries between seemingly immutable cultures are thus no longer upheld, either by social constructs like nation, ethnicity, religion or tradition, or by homogeneous and rigid individual as well as collective identity. Cultural and political identities are continuously coming into being and evolving, by virtue of the dynamic nature of wants and interests, beliefs, moral values and standards. Taking the human rights discourse on universalism versus cultural pluralism in contemporary Arab-Islamic philosophy as an example allows one to examine more acutely the multi-layered processes of self-criticism and dissolution of boundaries. ⁴ The objective of self-criticism is to reveal the limits of the culturally relative view of human rights, and to extricate the universality of human rights from a religious and hegemonic claim to power. Human rights are rights which ought to be afforded to each and every person, irrespective of his or her miscellaneous attributes, and purely by virtue of his or her being human: this is not a mere matter-of-fact definition, but a norma-

(Paris: United Nations Educational, Scientific and Cultural Organization, 1982), 41. For the originally cited German version of the text, cf.] Weltkonferenz über Kulturpolitik. Schlussbericht der von der UNESCO vom 26. Juli bis 6. August 1982 in Mexiko-Stadt veranstalteten internationalen Konferenz, hg.v. der Deutsche UNESCO-Kommission (München, 1983) (UNESCO-Konferenzberichte, Nr. 5), 121.  By the terms Arab or Arab-Islamic philosophy is intended the works of Arabic-speaking philosophers composed partly in Arabic and partly in European languages. In addition, the majority of these philosophers operate within the culture of Islam. However, this does not necessarily imply that they have developed a religious philosophy, or a philosophy of religion. Rather, their philosophy evolves amidst critical engagement with the culture of Islam and its various currents of thought. Furthermore, we should not ignore the cultural and philosophical achievement of other Arab philosophers of diverse religious and cultural character: it constitutes an outstanding contribution to philosophy in the Arab cultural sphere. It should also be noted that numerous philosophical approaches taken in the Arabic language emerge out of the engagement with European and North-American philosophy. Here, translation and intercultural exchange play a crucial role and without these services of mediation, philosophy in the Arab-Islamic cultural sphere would be inconceivable.

Limits of the Culturally Relative View of Human Rights

55

tive demand, wherein the various historical developments in the implementation of human rights within the individual cultures may not be ignored.⁵ In what follows, the critique of regional Arab and Islamic declarations of human rights will be examined from the point of view of selected positions in contemporary Arab philosophy. In the course of this, three important terms, which are central focuses of this critique, will be drawn upon: (1) cultural relativism, (2) historicism and (3) naturalism. By way of regional declarations of human rights, three examples from the Islamic and Arab cultural context will be singled out, which have been ratified by Arab-Muslim states and which are the subject of contentious discussion on both a national and international level: these are The Universal Declaration of Human Rights in Islam,⁶ of 19th September 1981, The Cairo Declaration on Human Rights in Islam,⁷ of 5th August 1990, and the Arab Charter on Human Rights,⁸ of 15th September 1994. An adapt-

 Cf. Hans Jörg Sandkühler, “Menschenrechte,” in Enzyklopädie Philosophie, hg.v. ders, 2. Aufl. in 3 Bden. (Hamburg, 2010), 1530 ff.  Cf. “Die Allgemeine Erklärung der Menschenrechte im Islam,” in Menschenrechte. Dokumente und Deklarationen, hg.v. der Bundeszentrale für politische Bildung (Bonn/Berlin, 2004), 546 – 562. [For a literal English translation of the original Arabic cf. “The Universal Declaration of Human Rights in Islam,” trans. Penelope Johnstone, Islamochristiana 9 (1983), 103 – 20.] This declaration originates from the Islamic Council of Europe, a non-governmental organization based in London. The declaration came into being at the initiative of the Saudi royal family; its content is influenced by scholars from Sudan, Pakistan and Egypt. cf. Anne Duncker, Menschenrechte im Islam. Eine Analyse islamischer Erklärungen über die Menschenrechte (Berlin, 2006), 27; Christine Schirrmacher, “Heterogen und Kontrovers. Die innerislamische Debatte zum Thema Menschenrechte,” in Wege zu Menschenrechten. Geschichte und Gehalte eines umstrittenen Begriffs, hg.v. Hamid Reza Yousefi, Klaus Fischer, Ina Braun und Peter Gerdson (Nordhausen, 2008), 274 f.  Cf. “Die Kairoer Erklärung über Menschenrechte im Islam,” in: Bundeszentrale für politische Bildung, Hg., op. cit, 562– 567. [For the English text cf. “The Cairo Declaration on Human Rights in Islam,” in Collection of International Instruments and Legal Texts Concerning Refugees and Others of Concern to UNHCR, Vol. III: Regional Instruments: Africa, Middle East, Asia, Americas (Geneva: UNHCR, 2007), 1166 – 1170.] This declaration was passed on the 5th August 1990 by foreign ministers from 45 out of the overall 57 member-states of the Organization of the Islamic Conference (OIC). This organization was founded in 1969 in Rabat and is closely affiliated with the Muslim World League in Mecca, cf. Schirrmacher, (fn. 6), op. cit., 276 f. Since the Ta’if summit of 1981, the text of this declaration has been the subject of several revisions. cf. Maurice Borrmans, “La Déclaration universelle des droits de l’homme de 1948 et les Déclarations des droits de l’homme dans l’Islam,” Islamochristiana 24 (1998).  Cf. “Arabische Charta der Menschenrechte,” in: Bundeszentrale für politische Bildung, Hg., op. cit., 568 – 574. [For an English text cf. “Arab Charter on Human Rights 2004,” trans. Dr. Mohammed Amin Al-Midani and Mathilde Cabanettes, revised Professor Susan M. Akram, Boston University International Law Journal 24, no. 2 (2006), 149 – 164].

56

Sarhan Dhouib

ed version of this Charter was adopted in 2004, at the Arab League summit in Tunis.⁹ Running concurrently with these declarations, in the Arab-Islamic cultural sphere, were various ventures in cultural and legal philosophy which engaged with these declarations critically. The constructive significance of such critique is to reflect upon the implementation process of human rights, in order to offer some guidance as to social and cultural orientation. Here, critique is not to be defined as a purely intellectual activity, but rather as a power of thought and action that is based in historical reality. On this note, it is also worth stressing that it is within the paradigm framework of critique and self-critique in contemporary Arab-Islamic philosophy that this critical engagement with the regional declarations on human rights is to be located.¹⁰ The aim of this paper will chiefly be to show how far such declarations can constitute an expression of a lack of democratic legitimacy and an absence of the rule of law, and the extent to which they stand in contradiction to the universality of human rights. In doing so, this article does not intend to cast doubt on Islam as a religion and culture, but rather the purpose is to reflect upon how such declarations on the part of authoritarian states result in the instrumentalization of human rights and attempts to brush aside the cutting-edge achievements of a number of Islamic intellectuals and theologians.¹¹

1 Cultural Relativism The first problem these declarations encounter is cultural relativism. Although they raise a claim to universality, these declarations are for the most part only intelligible in the context of Shari‘a, that is, Islamic religious law. As a conse-

 The Arab Charter on Human Rights was passed in May 2004 at the Arab League summit in Tunis and it came into force in January 2008. For the history of the origins of this charter, cf. Mohammed Amin Al-Midani, Introduction, in “Arab Charter on Human Rights 2004,” trans. Dr. Mohammed Amin Al-Midani and Mathilde Cabanettes, revised Professor Susan M. Akram, Boston University International Law Journal 24, no. 2 (2006), 147 ff.  On the paradigm of critique and self-critique in contemporary Arab-Islamic philosophy, cf. Sarhan Dhouib, “Philosophische Wege zu Recht und Ethik. Beispiele aus der arabisch-islamischen Philosophie der Gegenwart,” in Recht und Moral, hg.v. Hans Jörg Sandkühler (Hamburg, 2010), 175 f.  Cf. Christine Schirrmacher, “Heterogen und Kontrovers. Die innerislamische Debatte zum Thema Menschenrechte,” in Wege zu Menschenrechten. Geschichte und Gehalte eines umstrittenen Begriffs, hg.v. Hamid Reza Yousefi, Klaus Fischer, Ina Braun und Peter Gerdson (Nordhausen, 2008), 273 – 294.

Limits of the Culturally Relative View of Human Rights

57

quence, the universality of human rights is qualified, with an understanding of a religious positioning set in its place. For example, in the Preamble of the Universal Declaration of Human Rights in Islam the following proclamation is made: “we the community of Muslims, with all our variety of peoples and regions […] proclaim in the name of Islam this Declaration of the Rights of Man, derived from the noble Qur’ān and the pure Sunna of the Prophet.”¹² Moreover, in the Preamble of the Cairo Declaration on Human Rights in Islam it is stressed that fundamental rights and universal freedoms in Islam are an integral part of the Islamic religion and that no one as a matter of principle has the right to suspend them in whole or in part or violate or ignore them in as much as they are binding divine commandments, which are contained in the Revealed Books of God and were sent through the last of His Prophets to complete the preceding divine messages.¹³

Although the Arab Charter of Human Rights seems to be in better agreement with the letter and spirit of the Universal Declaration of 1948, yet there remains the restrictive caveat that it is to be read in accordance with Islamic law.¹⁴ In order to achieve greater conceptual clarity, it is apposite to shed a more exact light on the polysemous concept of Shari‘a. There are basically two expressions used in the Koran to define religious law between which a distinction can be drawn: Shir’a and Minhaj: (1) shara’a […] literally means to embark upon an action of some sort. Technically speaking, the term, as used in the context of religious law, means the initial establishment of a lawful religious practice. Whence, we get “shari’a” […] which [in the religious legal system]¹⁵, denotes religious law [or decree]. However, shar’i […] has two meanings: the general sense, of that which is legitimate, and the meaning specific to religion, of that which falls within the domain of religious law. The combination of these two meanings implies that religious law

 [“Universal Declaration of Human Rights in Islam,” trans. Penelope Johnstone, Islamochristiana 9 (1983): 103 f. For the German edition originally cited, cf.] “Die Allgemeine Erklärung der Menschenrechte im Islam,” in Menschenrechte. Dokumente und Deklarationen, hg.v. der Bundeszentrale für politische Bildung (Bonn/ Berlin, 2004), 546 f.  [“The Cairo Declaration on Human Rights in Islam,” in Collection of International Instruments and Legal Texts Concerning Refugees and Others of Concern to UNHCR, Vol. III: Regional Instruments: Africa, Middle East, Asia, Americas (Geneva: UNHCR, 2007), 1166. For the German edition originally cited, cf.] “Die Kairoer Erklärung über Menschenrechte im Islam,” in: Bundeszentrale für politische Bildung, Hg., op. cit., 562.  In the Preamble and in Art. 3 reference is made to “Islamic Shari’a and other divine laws, legislation and international instruments.”  Translator’s note: contents of this set of square brackets represent an addition present in the German edition of this text originally cited by the author.

58

Sarhan Dhouib

is that whose legitimacy is self-evident and therefore hinges upon “fitra”, that is to say, the nature which God vested in man.¹⁶

(2) “Nahaja literally has the sense of charting a course and, as a technical term in religious law, the concept rather emphasizes the continuance and persistence in the application of schari’a. Minhaj means a way of travelling a path, or a guiding methodology [i. e. a way of practising a (guiding) code of conduct].”¹⁷ Cultural relativism can, in the first place, be construed as a form of ethical relativism that incorporates the formulation, implementation and substantiation of values and standards – and hence also of rights like human rights. Also intended by this are justification strategies for various life practices of a social, political, cultural and religious nature.¹⁸ Thus the Cairo Declaration on Human Rights in Islam, to take an example, is accused of a value relativism, which, owing to its religious backdrop, calls the universality of human rights into question, for it concerns itself with only one particular exegesis of Shari‘a, without taking into consideration or addressing the contextualization and historicization of the concept. The criticism of the value relativism of the Cairo Declaration finds clear expression in the words of Tunisian philosopher Fathi Triki: Yet a reading of the Preamble and of various Articles of this declaration reveals that it is based in a form of value relativism, for it is often claimed that all values – such as freedom of the individual, the right to property, the right to freedom of movement, the freedom of worship, the freedom of expression and the status of the family, amongst others – must conform to the Islamic law, Shari‘a. ¹⁹

 Abou Yaareb Marzouki, “Konflikte der Rechtfertigung des Gesetzes im Islam,” in Gerechtigkeit, Recht und Rechtfertigung in transkultureller Perspektive, hg.v. Jacques Poulain, Hans Jörg Sandkühler und Fathi Triki (Frankfurt/M., 2010), 122. [For the original French language version of this article, used to translate from here, cf. the French edition: “Conflit des justifications de la loi en Islam,” in Justice, Droit et Justification, ed. id. (Frankfurt/M., 2010), 106.]  Ibid. On the meanings of Shari’a cf. Mathias Rohe, Das islamische Recht. Geschichte und Gegenwart (München, 2009), 9 – 18.  Cf. Thomas Sukopp, “Wider den radikalen Kulturrelativismus – Universalismus, Kontextualismus und Kompatibilismus,” Aufklärung und Kritik 2 (2005), 137– 155; id., “Kann ein Kulturrelativist universelle Normen fordern? Wege interkultureller Menschenrechtsbegründungen,” in Recht und Kultur. Menschenrechte und Rechtskulturen in transkultureller Perspektive, hg.v. Hans Jörg Sandkühler (Frankfurt/M., 2011), 23 ff.; id., “Kulturelativismus” in Enzyklopädie Philosophie, hg.v. Hans Jörg Sandkühler, 2. Aufl. in 3 Bden. (Hamburg, 2010), 1350 – 1353.  Fathi Triki, Demokratische Ethik und Politik im Islam. Arabische Studien zur transkulturellen Philosophie des Zusammenlebens (Weilerswist, 2011), 218 (emphasis mine).

Limits of the Culturally Relative View of Human Rights

59

Which understanding of Shari‘a underlies the Cairo Declaration? Is the interpretation of Shari‘a dependent upon theological and political power relations? Who determines what does or does not “conform” to Shari‘a? How are the balances of power between religion and politics to be understood? Even if it is not possible here to explore these questions in great detail, nevertheless it is important to underline that there is no clear definition of Shari‘a in the above-mentioned Arab and Islamic declarations on human rights. Despite the absolutist view of Shari‘a in the Cairo Declaration, and its super-ordination over all other conceptions of living, the term remains undefined.²⁰ This directly clears the way for authoritarian states to make arbitrary, high-handed decisions in an attempt to control freedoms and instrumentalize human rights: “the greatest short-coming of this [Cairo] declaration is therefore that it is conservative. Far from opening up a perspective for the modernization and adaptation of Shari‘a to the demands of present-day life, it confines itself, for the majority of the rights which it concedes, to evoking their inviolable Islamic framework.”²¹ Triki continues: “As opposed to being a text of unambiguous support for the promotion of human rights, the Cairo Declaration is drafted from a relativist perspective of self-insurance for a threatened and battered identity, which is all the more responsible for continuing racism and the ever-swelling surge of Islamophobia, the more vulnerable to attack the political regimes of Muslim countries are because of two lacking prerequisites: constitution and democratic legitimacy.”²² The above-mentioned Arab and Islamic human rights declarations are founded upon ethical cultural relativism, or value relativism, and represent the political interests of authoritarian states that ignore even the ground-breaking and modern interpretations within Islamic jurisprudence. They therefore seem more like an “instrument for the defence of a religious and cultural identity”²³ that is limited and closed off.²⁴

 Cf. eg. Arts. 24 and 25 of Cairo Declaration. Art. 24: “All the rights and freedoms stipulated in this Declaration are subject to the Islamic Shari‘ah.” Art. 25: “The Islamic Shari‘ah is the only source of reference for the explanation or clarification of any of the articles of this Declaration.”  Fathi Triki, Demokratische Ethik und Politik im Islam. Arabische Studien zur transkulturellen Philosophie des Zusammenlebens (Weilerswist, 2011), 219.  Ibid., 219 f.  Ibid., 219.  For a critical examination of the Islamic or Islamist understanding of the universality of human rights cf. Fuad Zakariya, “Die Prinzipien der Menschenrechte in der zeitgenössischen islamischen Welt,” Concordia. Internationale Zeitschrift für Philosophie 59, Themenheft: Arabischislamische Philosophie der Gegenwart (2011), 71– 82.

60

Sarhan Dhouib

2 Historicism The charge of historicism will be undertaken following the reflections of the legal philosopher and constitutional theorist Yadh Ben Achour, in his book La Deuxième Fâtiha. L’islam et la pensée des droits de l’homme. ²⁵ Here, the expression ‘historicism’ denotes a philosophy that determines or justifies standards of behavior on the basis of individual historical experience. This historicism can have various modes of expression. The first, and most common, purports that history is, and must be, the [only]²⁶ source of values and standards. […] The second considers that the law is that which is sanctioned, indeed sanctified, by the history of the future, that is to say, through successful implementation.²⁷

The following reflections are made with reference to the first version of historicism. In this view of historicism, the validity of human rights is seen as culturally contingent and therefore admits a process of relativization in the name of those particular laws specific to each culture. Some conservative Muslim writers, such as Mawdudi, accuse the 1948 Universal Declaration of Human Rights of being rooted in the Judaeo-Christian tradition and in European modernity.²⁸ On the other hand, some declarations of human rights are, correspondingly, established with reference to the Muslim historico-cultural context. A first example of this is the first paragraph of the Universal Declaration of Human Rights in Islam from 1981. There it is stated: “Fourteen centuries ago, Islam codified Human Rights, comprehensively and in depth, and surrounded them with appropriate guarantees to safeguard them; and it founded its society upon bases and principles which strengthen and support these rights.”²⁹ A second example concerns the Cairo Declaration. There, “the civilizing and historical roll of the Islamic Ummah”³⁰ is placed to the fore. This Ummah is that “which God made the

 Cf. Yadh Ben Achour, La Deuxième Fâtiha. L’islam et la pensée des droits de l’homme (Paris/ Tunis, 2011), 96 ff.  Translator’s note: contents of square brackets represent an addition present and indicated in the author’s own German translation of the original French.  Ibid., 96 f.  Cf. Heiner Bielefeldt, Philosophie der Menschenrechte. Grundlagen eines weltweiten Freiheitsethos (Darmstadt 1998), 115 – 149.  [“Universal Declaration of Human Rights in Islam,” trans. Penelope Johnstone, Islamochristiana 9 (1983), 103 f. For the German edition originally cited, cf.] Bundeszentrale für politische Bildung, Hg., Menschenrechte. Dokumente und Deklarationen (Bonn/ Berlin, 2004), 546.  [Collection of International Instruments and Legal Texts Concerning Refugees and Others of Concern to UNHCR, Vol. III: Regional Instrumens: Africa, Middle East, Asia, Americas (Geneva:

Limits of the Culturally Relative View of Human Rights

61

best [form of]³¹ nation that has given mankind a universal and well-balanced civilization in which harmony is established between this life and the hereafter and knowledge is combined with faith.”³² This approach to the interpretation of human rights is reductionist and illusory. It traces the genesis of human rights back to an idealized era and limits their validity to just one specific culture. Out of this arise two questions: (1) What are the consequences when human rights are traced back to a religion? (2) How is such a reductionist and culturalist reading of human rights to be explained in connection with the colonialism debate? (1) One has to distinguish very rigorously between two distinct value and justice systems when one is talking about rights in Islam. In the first justice system, that is, in the doctrine of duties, the talk is of the right of God; in the second, by contrast, it is of the rights of men. The juristic terminology corresponds, in classical Arabic, to the term alhaqq (pl. hūqūq), which is one of the numerous attributes and one of the names that Muslims award to God. In the utterance Allah al-haqq, the term alhaqq means both that which is true and that which is right, as opposed to wrong. In a theological sense, which is very important for Islamic jurisprudence, this means that God is at the same time both the source and the recipient of the rights. Also based on this is the formulaic phrase “the right of God” (haqq Allah), and hence, vice versa, the doctrine of duties (fara’id) of men towards God. It is this conception of the law, that is of duties, that underlies the various Islamic declarations on human rights. One can accuse the Islamic or Islamized approach to human rights of instilling these rights with the content of modern human rights, although the terminology actually articulates a deontology and not any notion of the rights of men. This explains why the various Islamic declarations of human rights have duties in sight whenever they speak of rights as human rights.³³ In the Preamble of the Universal Declaration of Human Rights in Islam it reads: human rights are rights laid down by the Creator, praised be He, and no single human being, whoever he be, has the right to suspend nor to infringe upon them; their essential immunity cannot be suspended by the will of any individual refusing to observe them, nor by the (collective)

UNHCR, 2007), 1166. For the German edition originally cited, cf.] Bundeszentrale für politische Bildung, Hg., Menschenrechte. Dokumente und Deklarationen (Bonn/ Berlin 2004), 562.  Translator’s note: contents of square brackets represent an addition present in the German edition of this text originally cited by the author (cf. fn. 30).  Ibid.  Cf. Sarhan Dhouib, “Philosophische Wege zu Recht und Ethik. Beispiele aus der arabischislamischen Philosophie der Gegenwart,” in Recht und Moral, hg.v. Hans Jörg Sandkühler (Hamburg, 2010), 172 ff.

62

Sarhan Dhouib

will of any society, represented by the institutions it has established, whatever their nature, and whatever the authorities granting them.³⁴

(2) In this context it is clear that, from a culturalist perspective, no universal, normative dimension can be ascribed to human rights, since the norm originates out of specific historical experience. An externally propelled implementation of the norm is regarded as “colonialism” or “imperialism.” It is against the universality of the Universal Declaration that regional declarations of human rights are contrasted, in order to emphasize the “authenticity” of their own cultures. In relation to this, the Algerian philosopher and Islamic scholar Mohammed Arkoun remarks: This is where the Islamic declaration of human rights is expressed in all its ideological and psychological scope: it provides the devout citizens with the necessary guarantees apropos the proclamation of those rights established by God; it rejects the laicist demands of western origin as invalid; it restores faith in the modernity of Islamic law and in its universal and inviolable nature.³⁵

In the critique of the regional Arabic and Islamic declarations of human rights exercised by those Arabic writers already cited, the universality of human rights is sued for afresh. This universality is not the invention of one culture or of one civilization. Nevertheless, it must be striven for within each individual culture in order to be attained. The task of philosophy, and in particular the philosophy of human rights, is to scrutinize the misleading strategies of justification for regional and religious human rights declarations such as these.³⁶

3 Naturalism When, in what follows, we talk of naturalism, this must not be confused with the concept of natural law. The basic idea of natural law is that every human is in-

 [Trans. Penelope Johnstone, Islamochristiana 9 (1983), 104– 5. For the German originally cited, cf.] Bundeszentrale für politische Bildung, Hg., Menschenrechte. Dokumente und Deklarationen (Bonn/ Berlin, 2004), 547.  Mohammed Arkoun, “Der Ursprung der Menschenrechte aus der Sicht des Islam,” in Weltfrieden durch Religionsfrieden. Antwort aus den Weltreligionen, in hg.v. Hans Küng und Karl Josef Kuschel (München, 1993), 60 f.  Cf. ibid., 53 ff.; id., Der Islam. Annäherung an eine Religion (Heidelberg, 1999), 206 – 211; Yadh Ben Achour, Le rôle des civilisations dans le système international. Droit et relations internationales (Paris, 2003), 257.

Limits of the Culturally Relative View of Human Rights

63

nately endowed with inalienable rights. Natural rights possess a timeless validity, and are understood as rights that are antecedent to the idea of state and are supranational.³⁷ Natural law philosophy has a long tradition that has been of great significance for declarations such as, e. g., Petition of Right (1628), Habeas Corpus Act (1679), Bill of Rights (1689) and Declaration des droits de l’homme et du citoyen (1789). A jus-naturalistic reasoning for human rights within Islamic culture has philosophical acceptance; for example, it was expounded by the Moroccan philosopher Mohamed Abid al-Jabri, in his book Democracy, Human Rights and Law in Islamic Thought, in order to legitimize an implementation of human rights in the context of Arab-Islamic culture.³⁸ In his reconstruction of the universal rationale for human rights, al-Jabri makes recourse to the natural law school of thought from the 18th century, above all to the theories of Locke and Rousseau. Consequently, he connects his argumentation to the jus-naturalistic ideas of pre- and extra-social rights. For man’s ‘natural’ rights predate all societal institutions, or form their basis. They therefore constitute a set of societally independent benchmarks and considerations against which societal conditions can be evaluated.³⁹ The term naturalism is, by contrast, employed in another sense. Under this heading are understood, in particular, “the doctrines or moral and judicial systems that deem natural life to be the chief foundation [(basic principle)]⁴⁰ of ethics and justice.”⁴¹ This means that the established differences and hierarchies between the various modes of being in nature are reflected in a justice system, and must be continuously legitimized via this conception of nature. The principle of equality is grasped only in the context of this understanding of nature. This can lead to the legitimization of certain social and political inequalities, such as, e. g., between master and slave, man and woman, or sovereign and subject.⁴²

 Cf. Christoph Menke und Arnd Pollmann, Philosophie der Menschenrechte zur Einführung (Hamburg, 2009), 23 ff.  Cf. Mohammed Abed al-Jabri, Democracy, Human Rights and Law in Islamic Thought (London/ New York, 2009), 103 – 116.  Cf. Sarhan Dhouib, “Von der interkulturellen Vermittlung zur Transkulturalität der Menschenrechte,” in Recht und Kultur. Menschenrechte und Rechtskulturen in transkultureller Perspektive, hg.v. Hans Jörg Sandkühler (Frankfurt/M., 2011), 155 – 162.  Translator’s note: contents of square brackets represent an addition indicated in the author’s own German translation of the French.  Yadh Ben Achour, La Deuxième Fâtiha. L’islam et la pensée des droits de l’homme (Paris/ Tunis, 2011), 102.  Cf. ibid., 102 ff.

64

Sarhan Dhouib

The question of whether a naturalistic conception of justice is put forward in the Arab and Islamic declarations can, in my opinion, be only indirectly affirmed. In Article 6 of the Cairo Declaration is written: “The husband is responsible for the support and welfare of the family.”⁴³ This Article is frequently read on the model of the prevailing conservative interpretation of verse 34 of the 4th Sura (An-Nisa), such as one can take away from Article 20 of the Universal Declaration of Human Rights in Islam: “Men have a certain authority over women, because God has given them more (strength) and because they support them from their means.”⁴⁴ The legal philosopher Yadh Ben Achour rightly points out that this verse is interpreted, not only in traditional, but also in contemporary Islamic jurisprudence, from a naturalistic perspective, which has facilitated discrimination against women in social and political spheres.⁴⁵ And because this view corresponds to the prevailing view held among Muslim lawyers, it becomes clear in what paradigm the Arab and Islamic declarations of human rights currently circulate.

4 Balance and Perspective Thus far, an analysis of a few Arab-Islamic declarations of human rights has demonstrated that the debate concerning the universality of human rights has undergone various processes. The ideologically motivated attempts [at universality] – as can be found in, e. g. the Universal Declaration of Human Rights in Islam (1981)⁴⁶ or in the Cairo Declaration on Human Rights in Islam (1990)⁴⁷ – are falla-

 [Collection of International Instruments and Legal Texts Concerning Refugees and Others of Concern to UNHCR, Vol. III: Regional Instruments: Africa, Middle East, Asia, Americas (Geneva: UNHCR, 2007), 1167. For the German version originally cited, cf.] Bundeszentrale für politische Bildung, Hg., Menschenrechte. Dokumente und Deklarationen (Bonn/ Berlin, 2004), 564.  [Trans. Penelope Johnstone, Islamochristiana 9 (1983), 118. For the German translations originally cited, cf]. Koran 4:34, trans. Rudi Paret (Stuttgart, 2007), [and] cf. Bundeszentrale für politische Bildung, Hg., Menschenrechte. Dokumente und Deklarationen (Bonn/ Berlin, 2004), 559 f.  Cf. Yadh Ben Achour, La Deuxième Fâtiha. L’islam et la pensée des droits de l’homme (Paris/ Tunis, 2011), 103.  [Cf. Penelope Johnstone, trans., Islamochristiana 9 (1983): 103 – 6. For the German version originally cited,] cf. Bundeszentrale für politische Bildung, Hg., Menschenrechte. Dokumente und Deklarationen, (Bonn/ Berlin, 2004), 546 – 549 (Präambel).  [Cf. Collection of International Instruments and Legal Texts Concerning Refugees and Others of Concern to UNHCR, Vol. III: Regional Instruments: Africa, Middle East, Asia, Americas (Geneva:

Limits of the Culturally Relative View of Human Rights

65

cious because, for one thing, they cling to a grave anachronism, and, for another thing, they confess to an unbridgeable gulf between the cultures.⁴⁸ Some Arab philosophers, in their critique of a restricted conception of human rights, as is upheld in the form of declarations made by Arab and Muslim states or in the form of the works of some authors, point to the dynamic processes of boundary dissolution vis-à-vis cultural identity and argue for a new universality of human rights. In the course of this, it becomes clear how boundaries in a culture can be freshly conceived. However, this critique depicts only one side of the discussion, for the universality of human rights demands a grounding that enables it, on the one hand, to legitimize a new universalism, and on the other hand to do justice to the cultural pluralism in this age of globalization. This approach naturally requires critical analysis and an emancipation of the philosophical idea of human rights from the hegemonic power monopoly of international politics. Important aspects of this critique are reflected in the context of intercultural philosophy and find, for example, expression in the Universal Declaration on Cultural Diversity, which was adopted by UNESCO in 2001.⁴⁹ Despite the fact that since the 19th century, processes of secularization have been sparked in some Arab and Muslim countries, which have later led to the implementation of human rights, human rights culture still suffers from many socio-political problems (inequality, injustice, oppression of women).⁵⁰ The question is, what are the real impediments that are blocking the path to a development of democracy, and hence to a development of human rights? Following in the steps of the reflections made by social philosopher Hisham Sharabi,⁵¹ I am of the opinion that the authoritarian socio-political structures in the Arab states prevent the effective realization of human rights. These are not

UNHCR, 2007), 1166, or for the German originally cited,] cf. Bundeszentrale für politische Bildung, Hg., op. cit., 562.  Cf. Sarhan Dhouib, “Von der interkulturellen Vermittlung zur Transkulturalität der Menschenrechte,” in Recht und Kultur. Menschenrechte und Rechtskulturen in transkultureller Perspektive, hg.v. Hans Jörg Sandkühler (Frankfurt/M., 2011), 157.  Cf. Fathi Triki, Demokratische Ethik und Politik im Islam. Arabische Studien zur transkulturellen Philosophie des Zusammenlebens (Weilerswist, 2011), 179 – 196.  Cf. Mohammed Arkoun, “Religion und Demokratie: Das Beispiel Islam,” in Islam, Demokratie, Moderne. Aktuelle Antworten arabischer Denker, hg.v. Erdmute Heller und Hassouna Mosbahi (München, 1998), 138 – 153.  Cf. Hisham Sharabi, Neopatriarchy. A Theory of Distorted Change in Arab Society (New York, 1988); id., “Der Weg zur Moderne: Betrachtungen über die Macht, die Frau und die Armut,” in Islam, Demokratie, Moderne. Aktuelle Antworten arabischer Denker, hg.v. Erdmute Heller und Hassouna Mosbahi (München, 1998), 211– 217.

66

Sarhan Dhouib

just political, but also social and cultural in nature. The implementation of human rights is not allowed to simply be the subject of theoretical reflection; on the contrary, it is also a practical remit of players in civil society and of democratic institutions.⁵² In this context, Sharabi focusses his sharpened attention on the systematic application of the principle of equality between the sexes in several Arab states, in the law sector and in everyday life, i. e. in the family, in the school and in the profession. Women’s rights, especially, grant women more protection against patriarchal authority – however they must be implemented on a daily basis, and as a matter of course, so as to become a part of cultural life. This pertains, above all, to equality in the search for work, in inheritance law, during the process of divorce and in the question of child care. Furthermore, a legal principle of equality opens up the way for a stronger participation in the design of the social and political structures of the Arab states, and opens up the way to a direct engagement in the process of democratization, that includes and comes directly from the part of women. Critique of the predominant patriarchal structures is also exercised by the feminist movements in the Arab and Islamic world, and the demand for equality is, to some extent, being enforced.⁵³ On a theoretical level, the critique here of the patriarchal interpretations of the Qur’an, plays a prominent role in the formation of a new awareness that allows women to free themselves from religio-political hegemony;⁵⁴ on a practical level, the institutions and the players in civil

 For a detailed analysis of Sharabi’s critique of authoritarian societal structures, cf. Mohamed Turki, “Herrschaft und Demokratie in der arabischen Welt. Überlegungen zur Phänomenologie der Macht,” Polylog. Zeitschrift für interkulturelles Philosophieren 17 (2007), 9 – 24. For a critique of patriarchal systems from a human-rights perspective cf. Abd al-Razzaq ‘Eid, “Patriarchy and Human Rights,” in Human Rights in Arab Thought. A Reader, ed. Salma K. Jayyusi (London/ New York, 2009), 483 – 487.  Cf. Leila Ahmed, Women and Gender in Islam: Historical Roots of a Modern Debate (New Haven, 1992).  Cf. Asma Barlas, “Believing women” in Islam: Unreading Patriarchal Interpretations of the Qur’an (Austin, 2002); Asma Wadud, Qur’an and Women: Rereading the Sacred Text from a Woman’s Perspective (New York, 1999). In this regard, it is important to stress that the feminist critique of the interpretive monopolization of the Qur’an by theology and politics has, in recent years, gained public attention in the Arab world. This would not have been possible without the digital explosion and fast-spreading virtual networking. As an example, cf. Amaal Qarami, Al-ikhtilaf fi ath-thaqafa al-arabia al-islamiya [The Difference in the Arab-Islamic Culture] (Beirut, 2007); Olfa Youssef, Hajratu muslima fi al-mirāth wa al-zawāj wa al-ginsiya al-mathaliya [Bewilderment of a Muslim Woman Regarding Legacy, Marriage and Homosexuality] (Tunis, 2009). cf. also Fahma Jadaane, khārij as-sirb. Bahth fi al-niswīyya al-islamīyya al-rafida wa igrā‘āt al-huriyya [Outisde the Flock. A Study of Dissident Islamic Feminism and the Temptations of Free-

Limits of the Culturally Relative View of Human Rights

67

society perform a weighty role in the realization of this new awareness. These societal and political processes of secularization can be regarded as a manifestation of the intercultural mediation of human rights; they set in motion a process of universalization, whereby human rights are made transcultural, and promote stable, institutional, democratic structures. In order to safeguard ourselves against a dangerous slide into a naïve cultural relativism or a hollow universalism, it is necessary to try constantly to be mindful of the diversity of mankind, in view of human living conditions and within the bounds of the universalization of human rights. Translated from the German by Flossie Draper. All translations by Flossie Draper unless otherwise indicated. Where an existing English translation was available, or indeed the English-language original of a source previously cited in German, these have been additionally cited by the translator in the footnotes, as indicated by square brackets. In such cases, the German-language editions originally cited by the author have invariably been retained. Square brackets in the body of the text indicate additions made by the translator, unless otherwise indicated by a translator’s note, and excluding cases of ellipsis.

Bibliography Achour, Y., La Deuxième Fâtiha. L’islam et la pensée des droits de l’homme (Paris/Tunis: Presses Universitaires de France, 2011). Achour, Y., Le rôle des civilisations dans le système international. Droit et relations internationales (Paris: Edition Bruylant, 2003). Ahmed, L., Women and Gender in Islam: Historical Roots of a Modern Debate (New Haven, Yale University Press, 1992). Al-Jabri, M. A., Democracy, Human Rights and Law in Islamic Thought (London/New York: Tauris, 2009). Al-Midani, M.,”Introduction” in “Arab Charter on Human Rights 2004”, in Boston University International Law Journal, vol. 24, 2, (2006), 147 ff. Al-Razzaq, A., ‘Eid, “Patriarchy and human rights”, in Jayyusi, S. K., (ed.), Human Rights in Arab Thought. A Reader (London/New York: I.B. Tauris, 2009), 483 – 487. Arabische Charta der Menschenrechte, in: Bundeszentrale für politische Bildung, Menschenrechte. Dokumente und Deklarationen (Schriftenreihe Band 397) (Bonn, 2004), 568 – 574. [For an English text cf. “Arab Charter on Human Rights 2004,” trans.

dom.] (Beirut 2010); id., “Féminisme et Islam,” Concordia. Internationale Zeitschrift für Philosophie 69, Themenheft: Arabisch-islamische Philosophie der Gegenwart (2011), 83 – 91.

68

Sarhan Dhouib

Al-Midani, M., Cabanettes, M., revised Akram S. M., in Boston University International Law Journal, vol. 24, 2, (2006), 149 – 164.] Arkoun, M., “Der Ursprung der Menschenrechte aus der Sicht des Islam”, in Küng, H., Kuschel, K. J. (eds.), Weltfrieden durch Religionsfrieden. Antwort aus den Weltreligionen (Munich: Piper, 1993). Arkoun, M., “Religion und Demokratie: Das Beispiel Islam”, in Heller, E., Mosbahi, H., (eds.), Islam, Demokratie, Moderne. Aktuelle Antworten arabischer Denker (Munich: C.H. Beck, 1998), 138 – 153. Asma, B., ‘Believing women’, in Islam: Unreading Patriarchal Interpretations of the Qur’an (Austin: Texas University Press, 2002). Bielefeldt, H., Philosophie der Menschenrechte. Grundlagen eines weltweiten Freiheitsethos (Darmstadt: Primus, 1998). Borrmans, M., “La Déclaration universelle des droits de l’homme de 1948 et les Déclarations des droits de l’homme dans l’Islam,” in: Islamochristiana 24 (1998). Bundeszentrale für politische Bildung, Menschenrechte. Dokumente und Deklarationen (Bonn/Berlin, 2004). [“Universal Declaration of Human Rights in Islam,” trans. Johnstone, P., Islamochristiana 9 (1983)]. “Die Allgemeine Erklärung der Menschenrechte im Islam,” in: Bundeszentrale für politische Bildung, Menschenrechte. Dokumente und Deklarationen (Bonn/Berlin, 2004), 546 – 562. [“The Universal Declaration of Human Rights in Islam,” trans. P. Johnstone, Islamochristiana 9 (1983), 103 – 20.] “Die Kairoer Erklärung über Menschenrechte im Islam”, in Bundeszentrale für politische Bildung, Menschenrechte. Dokumente und Deklarationen (Bonn/Berlin, 2004) 562 – 567. [“The Cairo Declaration on Human Rights in Islam,” in: UNHCR, pub., Collection of International Instruments and Legal Texts Concerning Refugees and Others of Concern to UNHCR, Vol. III: Regional Instruments: Africa, Middle East, Asia, Americas (Geneva, 2007), 1166 – 1170]. Dhouib, S., “Philosophische Wege zu Recht und Ethik. Beispiele aus der arabisch-islamischen Philosophie der Gegenwart”, in Sandkühler, H. J. (ed.), Recht und Moral (Hamburg: Meiner, 2010). Dhouib, S., “Von der interkulturellen Vermittlung zur Transkulturalität der Menschenrechte”, in Sandkühler, H. J., (ed.), Recht und Kultur. Menschenrechte und Rechtskulturen in transkultureller Perspektive (Frankfurt/M.: Peter Lang, 2011). Duncker, A., Menschenrechte im Islam. Eine Analyse islamischer Erklärungen über die Menschenrechte (Berlin: Wissenschaftlicher Verlag Berlin, 2006). Jadaane, F., khārij as-sirb. Bahth fi al-niswīyya al-islamīyya al-rafida wa igrā‘āt al-huriyya [Outisde the Flock. A Study of Dissident Islamic Feminism and the Temptations of Freedom.] (Beirut 2010). Jadaane, F., “Féminisme et Islam,” in: Concordia. Internationale Zeitschrift für Philosophie (Special themed issue: Arabisch-islamische Philosophie der Gegenwart), Issue 59, 83 – 91. Marzouki, A. Y., “Konflikte der Rechtfertigung des Gesetzes im Islam,” in: Poulain, J., Sandkühler, H. J., Triki, F. (eds.), Gerechtigkeit, Recht und Rechtfertigung in transkultureller Perspektive (Frankfurt/M.: Peter Lang, 2010) [“Conflict des justifications de la loi en Islam,” in: id., eds., Justice, Droit et Justification, (Frankfurt/M., 2010)]. Menke, Ch., Pollmann, A., Philosophie der Menschenrechte zur Einführung (Hamburg: Junius, 2009).

Limits of the Culturally Relative View of Human Rights

69

Mexico City Declaration on Cultural Policies in the Final Report from the international UNESCO World Conference on Cultural Policies, held in Mexico City from 26th July to 6th August 1982, pub. United Nations Educational, Scientific and Cultural Organization (Paris, 1982). [Weltkonferenz über Kulturpolitik. Schlussbericht der von der UNESCO vom 26. Juli bis 6. August 1982 in Mexiko-Stadt veranstalteten internationalen Konferenz, ed. German UNESCO Commission (Munich, 1983) (UNESCO-Konferenzberichte, Nr. 5)]. Qarami, A., Al-ikhtilaf fi ath-thaqafa al-arabia al-islamiya [The Difference in the Arab-Islamic Culture] (Beirut, 2007). Regenbogen, A., Meyer, U. (eds.), Wörterbuch der philosophischen Begriffe (Hamburg: Meiner, 1998), 367 (Art. Kultur). Rohe, M., Das islamische Recht. Geschichte und Gegenwart (Munich: C.H. Beck, 2009). Sandkühler, H. J., “Menschenrechte”, in id., ed., Enzyklopädie Philosophie, 2nd ed. in 3 vols. (Hamburg: Meiner, 2010), 1530 ff. Schirrmacher, Ch., “Heterogen und Kontrovers. Die innerislamische Debatte zum Thema Menschenrechte,” in: Yousefi, H. R., Fischer, K., Braun, I., Gerdson, P. (eds.), Wege zu Menschenrechten. Geschichte und Gehalte eines umstrittenen Begriffs (Nordhausen: Bautz, 2008), 273 – 294. Sharabi, H., Neopatriarchy. A Theory of Distorted Change in Arab Society (New York: Oxford University Press, 1988); id., “Der Weg zur Moderne: Betrachtungen über die Macht, die Frau und die Armut,” in: Heller, E., Mosbahi, H. (ed.), Islam, Demokratie, Moderne. Aktuelle Antworten arabischer Denker (Munich: C.H. Beck, 1998), 211 – 217. Sukopp, Th., “Wider den radikalen Kulturrelativismus – Universalismus, Kontextualismus und Kompatibilismus”, in Aufklärung und Kritik 2 (2005), 137 – 155. Sukopp, Th., “Kann ein Kulturrelativist universelle Normen fordern? Wege interkultureller Menschenrechtsbegründungen”, in Sandkühler, H., (ed.), Recht und Kultur. Menschenrechte und Rechtskulturen in transkultureller Perspektive (Frankfurt/M.: Peter Lang, 2011). Sukopp, Th., Kulturelativismus”, in Sandkühler, H. J., ed., Enzyklopädie Philosophie, 2nd. ed. in 3 vols (Hamburg: Meiner, 2010). Triki, F., Demokratische Ethik und Politik im Islam. Arabische Studien zur transkulturellen Philosophie des Zusammenlebens (Weilerswist: Velbrück, 2011). Turki, M., “Herrschaft und Demokratie in der arabischen Welt. Überlegungen zur Phänomenologie der Macht,” in: Polylog. Zeitschrift für interkulturelles Philosophieren 17 (2007), 9 – 24. UNHCR, pub., Collection of International Instruments and Legal Texts Concerning Refugees and Others of Concern to UNHCR, Vol. III: Regional Instruments: Africa, Middle East, Asia, Americas (Geneva, 2007). Wadud, A., Qur’an and Women: Rereading the Sacred Text from a Woman’s Perspective (New York: Oxford University Press, 1999). Youssef, O., Hajratu muslima fi al-mirāth wa al-zawāj wa al-ginsiya al-mathaliya [Bewilderment of a Muslim Woman Regarding Legacy, Marriage and Homosexuality] (Tunis, 2009). Zakariya, F.,”Die Prinzipien der Menschenrechte in der zeitgenössischen islamischen Welt”, in Concordia. Internationale Zeitschrift für Philosophie (Special themed issue: Arabisch-islamische Philosophie der Gegenwart), Issue 59 (2011), 71 – 82.

Johannes Fischer

Human Dignity and Human Rights¹ My task, as I see it, is to describe in more detail the concepts of Human Dignity and Human Rights, as well as the relationship between them. I would like to begin with the concept of Human Dignity. There is a great deal of controversy surrounding this concept, which I shall come back to later. But there is one fact which we cannot consider controversial, namely that human beings possess Human Dignity, i. e. a dignity which non-human beings do not possess. This fact is inherent in our language, in the way we speak of human beings. In some contexts, the expression “human being” is a nomen dignitatis, i. e. an expression with a normative meaning. When reacting to acts of humiliation or torture, this normative meaning becomes clear in appeals such as: “But they are human beings!” (i. e. they are creatures who should not be treated in this way). To clarify this, let us take expressions like “animal” or “plant” which do not contain any normative meaning. What are the reasons for this difference? How can we explain the normative meaning of the expression “human being”? In my view, this is the most fundamental question regarding the concept of Human Dignity. This question requires some consideration concerning the specific structure of the social world in contrast to the natural world. In the natural world, things are what they are – a monkey, a blade of grass or a human being, in the biological sense – irrespective of our acknowledgement and respect. In contrast, the social world is based on acknowledgement and respect. Acknowledgement (in German: Anerkennung) determines social belonging and social status. It determines who belongs to the social world or to a particular group within it, as well as the social status a person has within this world. On the other hand, respect has to do with the rights a person has on the basis of social belonging or a certain social status. I would like to illustrate this with the social status of a refugee. On the one hand, it is a fact that such a person is being persecuted in his home country for political or religious reasons. On the other hand, this mere fact is not enough to grant the person in question the social status of a refugee. He only acquires this status once he has been acknowledged by the public authorities as a refugee. Ac The following text is a speech made by the author at the consultation “Churches together for Human Rights” in Helsinki on 7th-8th March 2013, which was organized by the Church and Society Commission of the Conference of European Churches (CEC), by the Evangelical-Lutheran Church of Finland, by the Finnish Orthodox Church and by the Finnish Ecumenical Council.

72

Johannes Fischer

knowledging is here a creative act which brings about the social status of a refugee as a social reality. It is important to see that acknowledging something differs from arbitrarily awarding something. The acknowledgement of the social status of a refugee is bound to social rules defining specific criteria which must be fulfilled in order to acknowledge a person as a refugee. For instance, one criterion is political persecution. A person who fulfills this criterion must be acknowledged by the authorities as a refugee. He has a right to be acknowledged as a refugee. Therefore, the social status of a refugee is a normative status. To be a refugee in the sense of this status means: to be a person to whom acknowledgement and respect as a refugee is due. This observation can be generalized: all expressions which refer to social membership and social status have a normative semantic component. A colleague, for example, is someone to whom acknowledgement and respect is due as a colleague. The normative component of this expression immediately becomes clear when somebody disregards this acknowledgement and due respect, and has this disregard pointed out to him with the words: “But he is a colleague!” Or, to take an example from chivalrous society: Being a knight means being somebody to whom acknowledgement and respect are due as a knight. These attitudes are not due because he is now already a knight after being granted knighthood. Knighting – touching a person with a sword on his back – is not witchcraft, changing a non-knight into a knight. Far more, the ritual of knighting has as its very purpose the generating of a certain social acknowledgement, which makes the person in question a knight. This is why the ritual is performed in public. The acknowledgement is due on account of the social rule that a person who has been knighted is to be acknowledged as a knight. In summary: The social world has a normative structure. Social membership and social status are normative facts. There are an immense number of social rules – written and unwritten (think back to the example of the colleague) – which constitute the social world and define to whom, and by which criteria, which acknowledgement and respect are due. Here we now find the explanation for the fact that in some contexts the expression “human being” has a normative semantic component, or, in other words: it is a nomen dignitatis. Being human – not in a biological sense but in the social sense of being a member of the human community – means being a creature to whom acknowledgement and respect as a human are due on the grounds of his or her natural human attributes. The fact that being human is founded in acknowledgement makes humans very vulnerable. Human beings can be deprived of acknowledgement as human beings by treating them as non-humans or “sub-human beings” (in German: “Untermenschen”). Considering this vulnerability, it is very important to see that, in social terms, being

Human Dignity and Human Rights

73

human is a normative status which cannot be taken away by depriving a human being of the factual acknowledgement as a human being. We cannot deprive a human being of being human. Now we should be better able to understand what the term “Human Dignity” means. It is simply the normative content within the meaning of “human” which is explicit in the term “Human Dignity.” To possess Human Dignity means: to be a creature to whom acknowledgement and respect as a human being is due. And this is the same as being human. As it is impossible to deprive a human being of being human, so it is impossible to deprive a human being of Human Dignity. In the words of the Federal Constitution of Germany: “Human Dignity is inviolable” (“Die Menschenwürde ist unantastbar”; not: “It shouldn’t be violated”). When understood in this way, the statement that human beings possess Human Dignity requires no philosophical or theological deduction or grounding. Rather, Human Dignity is contained within the normative structure of the social world and can only be shown by analyzing this structure. In ethical literature we find that Human Dignity is understood as a moral status which human beings inherently possess. Following the arguments set out here, however, the term “Human Dignity” denotes a social status, in the sense of a membership within the human community. A failure to respect human dignity means a failure to respect a social reality, namely that those people who are disrespected are in truth human beings, i. e. creatures to whom acknowledgement and respect as human beings are due. The cry “But he is a human being!”, protesting this reality, makes this clear. At this point, it would seem necessary to comment on misunderstandings surrounding the concept of Human Dignity, in particular, the equating of Human Dignity with an “intrinsic value” or “worth” held by human beings.² Respecting the dignity of a human being would then mean: respecting the value or worth which he or she has as a human being (whatever this “value” might supposedly be). Following the argumentation set out here, however, respecting the dignity of a human being means: respecting him or her as a human being, i. e. as a member of the human community. Here the respect refers to him or her as an individual ³ and not to an abstract concept of a “worth” he or she supposedly has. Another misunderstanding is that Human Dignity results from specific properties which humans possess and non-humans do not, like reason or autonomy.

 Wolterstorff, N., Justice: Rights and Wrongs, (Princeton: Princeton University Press, 2008).  In order to understand the immense importance of the respect to the individuality of persons as a fundamental component of respecting their Human Dignity, we should think back to the concentration camps of the National Socialist time in Germany, in which human beings were deprived of all signs of individuality: shaven heads, uniform prisoner clothes and numbers on the arms of the prisoners as a distinguishing mark.

74

Johannes Fischer

Here, cases must be questioned where human beings do not have such properties, like with the mentally handicapped, or persons suffering from dementia. Considering this question, it is crucial to see that Human Dignity is based not on specific human properties but on the specific kind of being which characterizes humans, namely the kind of being which characterizes the members of the social world – being a refugee, a colleague, a knight etc. – and which is based on acknowledgement due. As members of the social world, mentally handicapped persons or persons suffering from dementia participate in this kind of being too.⁴ It is this kind of being which sets human beings apart from animals or plants, which belong to the natural world. This insight is crucial with regard to the critics of speciesism. Human beings possess Human Dignity not as a result of belonging to the human species in a biological sense.⁵ They possess Human Dignity as members of the human community. The term “Human Dignity” does not describe a relation between humans and non-humans, a higher status which humans have in comparison with non-humans. Rather, it refers to humans as members of the social world. This insight is crucial with regard to the theological founding of Human Dignity in the concept of imago Dei. The biblical concept of imago Dei (Gen 1:27) refers to a status man has in relation to God, on the one hand, and to non-human creatures, on the other, namely as a representative of God on Earth. This status is not the same as the normative status which human beings have as members of the social world, namely in relation to other members of this world. Therefore, it is an open question to me, whether

 On the other hand, human embryos do not participate in this kind of being. They are organismic entities belonging to the natural world and an object of biological science. Therefore, it is a conceptual mistake to speak of a Human Dignity of human embryos as can be found in the debate about prenatal life. Perhaps it makes sense to speak of a specific dignity of human life in the biological sense (J. Habermas, Die Zukunft der menschlichen Natur. Auf dem Weg zu einer liberalen Eugenik? (Frankfurt: Suhrkamp, 2005)). But it does not make sense to speak of a Human Dignity of human life in the biological sense.  There are even theologians who hold that the Christian view of man is a “constitutive speciesistic” one (Härle, W., Ethik (Berlin/New York: Walter de Gruyter, 2011), 257). This is the consequence of a naturalistic thinking which does not distinguish between the natural and the social world, and which understands the social world according to the paradigm of the natural world. In the natural world, things differ from each other by their properties. Therefore, in a naturalistic view, the difference between humans and non-humans is founded not in the kind of being but in properties which humans have and non-humans do not have, namely the properties of the human species. It is the same naturalistic view which leads to the opinion that Human Dignity consists in a “value” or “worth” of human beings. In a naturalistic view, the world is divided into facts and values. Being human is a natural fact which does not entail Human Dignity. Rather, Human Dignity is additional to this fact, as a value or worth that human beings have.

Human Dignity and Human Rights

75

or not the concept of Human Dignity can be directly derived from the concept of imago Dei. As I have pointed out, the concept of Human Dignity refers not to a moral, but to a social status. This needs to be further specified. This social status is, after all, linked to moral obligations towards those possessing it, like, not to humiliate or not to torture a human. Here, too, the cry “But he is a human being!” makes this clear. It is a demand for a social reality which has moral implications. The concept of Human Dignity combines social obligations of acknowledgement (of humans as humans) with moral obligations of respect for humans. Human Dignity can be disregarded in two ways: 1. by depriving a human being of acknowledgement as a human being and 2. by violating the moral obligations which are included in the concept of Human Dignity. If this consideration is true, it is beyond debate whether or not human beings possess Human Dignity. They possess it by the mere fact that they are members of the human community. There are only three questions which can be controversial: 1. Which creatures belong to the human community? 2. What does “respect of Human Dignity” mean, i. e. which moral obligations does the concept of Human Dignity entail? 3. What importance should the concept of Human Dignity have for the political order and constitution of a society? By trying to answer these questions, a religious tradition like Christianity can play an important role. With regard to the first question, an immediate association might be the liberation of slaves in America and the role the book Uncle Tom’s Cabin played. Reflecting upon this first question is less a matter of intellectual reasoning and more a matter of empathy and love, as becomes obvious in questions like the following: what happens to a creature which feels, hopes, thinks or believes like a human – like us – and to whom acknowledgement and treatment as a human are refused? The second question, concerning the moral obligations implied in the concept of Human Dignity, is a matter of empathy and love too: what does it mean for a human being to live in circumstances of extreme poverty? When imagining what it would be like to live under such conditions, we might come to the conclusion that human beings should not have to live in such conditions and that there is a moral duty to help them. The moral obligations implied in the concept of Human Dignity must not be regarded out of historical context. Since the 18th century, an increasing sensibility for the moral obligations towards human beings as human beings has developed. For example, torture was an accepted practice in the preceding centuries. I cannot

76

Johannes Fischer

find any text by Luther, Calvin or Zwingli which criticizes this practice. The condemnation of torture began in the 18th century.⁶ With regard to the third question, it is crucial to recognize the following historical fact: the idea that human beings possess a dignity which non-human beings do not is a very old idea which goes back to the Ancient World, especially to Cicero. Nevertheless, this idea had no political consequences with regard to the structure and constitution of society (just as the concept of imago Dei did not have such consequences). During the time of the Roman Empire, possessing Roman citizenship and its corresponding rights was what was relevant, not whether someone was a human being. In the Medieval corporative society, it was relevant whether one belonged to the class of the aristocracy or to the peasant-class or to the clergy. It was the civil revolutions in the 18th century which brought about a political and social order for which the mere fact of being human was relevant with regard to political rights and obligations. Relative to this fact, all human beings are equal (cf. the demand for equality in the French Revolution). It was at this time that the ideas of Human Dignity and Human Rights found their way into the common consciousness and became politically relevant. The idea that being a human is the relevant fact for the social and political order of human community is a result of the social and political upheavals in the Western modern age. It is a matter of honesty to admit that we cannot give the churches credit for this idea. The churches were closely associated with the pre-modern corporative society, with its alliance between throne and altar. In addition, the chaotic course of the French Revolution caused them to remain sceptical about this idea for a long time. But I think there is a close affinity between this idea and Christian thought. When God chooses man as His partner in His Creation, He does not choose him as a member of the aristocracy or the clergy, but as man. In a Christian view, this is the crucial point, and therefore there is a close affinity between Christian thought and an order of society for which being a human is the relevant fact, and Human Dignity and Human Rights are the guiding principles. By the way, I would like to emphasize that I am deliberately speaking of a certain affinity. I am sceptical about attempts to derive Human Dignity and Human Rights from the premises of Christian belief. These concepts should be the guiding principles in a society where Christians and non-Christians live together. What these concepts mean must be made clear in a way which is under-

 Joas, H., Die Sakralität der Person. Eine neue Genealogie der Menschenrechte (Berlin: Suhrkamp, 2011)/The Sacredness of the Person. A New Genealogy of Human Rights (Washington, D. C.: Georgetown University Press, 2013).

Human Dignity and Human Rights

77

standable for Christians and non-Christians alike. This is a matter of knowledge and not of religious belief, namely of knowledge about the normative structure of the social world and of knowledge about the moral obligations towards human beings. The attempt to derive Human Dignity and Human Rights from premises of Christian belief leads to a questionable alternative. Either Christian belief must be adopted as a quasi-knowledge, because knowledge can be derived only from knowledge: in this case, Christian belief has been transformed into a religious ideology, i. e. into a belief which claims for itself the status of knowledge (for instance, concerning the will of God). Or Human Dignity and Human Rights must be degraded to a matter of belief which is derived from religious belief: in this case, the result is a kind of religious fundamentalism. The answer to the question of whether human beings have Human Dignity and Human Rights, and whether these concepts are relevant for the order and constitution of society, then depends on the contingent fact that some people share this belief and others do not. Our world is full of religious ideologies and religious fundamentalism, and, in my opinion, this fact is one of the biggest challenges of today’s theology. In order to prevent being trapped in this disastrous alternative, it is important to distinguish between matters of knowledge and matters of religious belief. There can be a close affinity between both, and I am convinced that there is a close affinity in the case of Human Dignity. Christian love can make one sensitive to the acknowledgement and respect due to human beings. But it is impossible to derive things which are a matter of knowledge from the premises of religious belief. Now I would like to turn to Human Rights, and I shall begin with an historical remark. When, in 1789, the French Declaration of Human Rights postulated: “Human beings are born free and equal in rights,” this sentence provoked vehement protest from Jeremy Bentham. In his view, the idea of natural rights given to humans by birth is complete nonsense. Rights can only be granted by a public authority. In his book “The Idea of Justice,” Amartya Sen refers to the criticism of Bentham in order to reject it. In Sen’s view, Human Rights are moral rights human beings have and not rights which are granted to them by an authority. In my opinion, the question is whether or not that really is an alternative: either human rights are moral rights or human rights are politically granted rights. Would it not make sense to distinguish between two kinds of Human Rights: moral Human Rights on the one hand, and politically granted Human Rights on the other? Let us first consider moral Human Rights. In order to understand such rights, it is very important to see that morality does not refer to individuals as they are called by their proper names but to something in general. Imagine Ri-

78

Johannes Fischer

chard is in need and Peter helps him for moral reasons. Then, the reason Peter helps him is not the fact that it is Richard – this specific individual – but the fact that it is a person who is in need. The expression “a person in need” describes an individual, too, but a non-specific, generalized individual whom we can find in different specific individuals, and, in this example, in Richard. When we speak of Peter’s moral obligation to help, then is it an obligation towards this non-specific individual, i. e. towards a person who is in need. Therefore, Richard cannot derive an individual, personal right that Peter must help him from this moral obligation. If we can speak here of a right, then it is the right of this non-specific individual, of a person who is in need. In the Christian tradition, our neighbour is such a non-specific individual we can find in various specific individuals. The rights of our neighbour in the person of another are not the same as the individual rights of this person, for instance of John or Elizabeth. If it makes sense to speak of moral Human Rights,⁷ then these rights are not individual rights of every human being, but rights of a human being (in the sense of a non-specific, generalized individual). Here is the link to the concept of Human Dignity. As I have pointed out, the concept of Human Dignity combines social obligations of acknowledgement with moral obligations of respect. The latter obligations refer to the treatment we owe to a human being. Moral Human Rights are the rights to be treated in ways due to a human being. Therefore, moral Human Rights are included in the concept of Human Dignity. This insight is crucial with regard to the question of whether we should prefer to speak of Human Rights instead of Human Dignity. In many countries, the term “Human Dignity” does not play a prominent public role, but there is a debate on Human Rights. In my opinion, this is not a true alternative. The concept of Human Dignity can be translated into the language of rights. Then it means: 1. the social right to be acknowledged as a human being and 2. the moral rights a human being has by the mere fact that he or she is a human being. These rights are together equivalent to the concept of Human Dignity.

 In my opinion, the best explanation of what is meant by the word “right” is that a right is a valid claim. This explanation makes clear that the expression “right” has its place in the intersubjective discourse in which persons make claims on other persons. When understood in this way, moral Human Rights can be derived from moral obligations we have to a human being because such obligations are perfect obligations (officia perfecta). For instance, with regard to the moral obligation not to torture a human being, it is exactly defined what must not to be done – to torture – and to whom it must not to be done – to a human being. Therefore, referring to the fact that I am a human being, I have a valid claim on another not to be tortured by deriving the validity of this claim from his moral obligation not to torture a human being.

Human Dignity and Human Rights

79

However, usually Human Rights are understood as individual rights. The political debate about Human Rights, especially, refers to the individual rights of every human being. Where do these rights come from? This was precisely Jeremy Bentham’s question. Evidently he was right when he insisted that these rights cannot be given by nature, but can only be granted by a political authority. In today’s world, the United Nations are this authority. It is by the acknowledgement of the United Nations as the representative of the community of nations that Human Rights as individual rights take effect. This acknowledgement is a creative act which puts into effect what has been acknowledged. So, in 2010, the United Nations acknowledged a Human Right to water, and since then, every human being all over the world has been able to claim this right from the public authorities in his or her country, if the latter has neglected its responsibility to supply sufficient water. The fact that individual Human Rights are not moral rights, as Amartya Sen takes them to be, but politically granted rights, is evident in the judiciary of the European Court of Human Rights. The judges of that Court do not make judgements on the grounds of moral deliberations – which they would have to do if individual Human Rights were moral rights – but make judgements on the grounds of a catalogue of recognized (by the UNO) and codified rights. Mistaking individual Human Rights as moral rights can have disastrous consequences. If they were moral rights then we would have to ask: is there an individual Human Right to water and how can such a right be justified? When they are politically granted rights, however, the question is: should human beings have such an individual right, in other words: should such a right be acknowledged by the United Nations? Mistaking individual Human Rights as moral rights can be the cause of a Human Rights imperialism based on the conviction that human beings already have such individual rights, irrespective of their acknowledgement by the UNO, namely as moral rights which are considered to be individual political rights as well, and that a guarantee of these rights can be demanded from the governments of all countries in the world, irrespective of the cultural and religious traditions which characterize a country. However, individual Human Rights which are globally binding can only be brought about by political negotiations between nations with different cultural and religious traditions. Only such individual Human Rights can be claimed from the government of a country which – as a result of such negotiations – the United Nations, as the representative of the international community, has acknowledged. Otherwise, one culture dictates to the rest of the world its own view of Human Rights as developed against the background of its religious and cultural tradition.

80

Johannes Fischer

The question of whether human beings should have an individual Human Right to water leads to moral and ethical reflections, i. e. reflections about moral Human Rights as they are implied in Human Dignity. When the United Nations acknowledges a Human Right to water, then the moral right of a human being to water is acknowledged as an individual political right of every human being, which now can be claimed from governments all over the world. This is the meaning of the concept of Human Rights: it transforms the moral rights which are implied in the concept of Human Dignity into political rights, and gives them political impact. This institutionalization of Human Dignity in the form of political Human Rights is the only efficient way of safeguarding Human Dignity in a world in which it is disregarded in so many ways. Therefore, the fight for respect of Human Dignity must be a fight for institutionalization and defence of Human Rights. In my view, this is an important mission for the churches. As I have pointed out, the concepts of Human Dignity and Human Rights, as they have developed in the Modern Age, are not original Christian concepts. However, there is a close affinity between these concepts and the Christian view of man. Christian love sensitizes one for the obligations we have towards human beings. It manifests itself not only in individual actions, but also in the commitment to a political order which serves the needs of human beings. In today’s world, this commitment must include a commitment to Human Rights. I would like to conclude my presentation with two remarks. The first remark refers to an expression which plays an important role in the debate about Human Rights, namely the expression “universality of Human Rights.” What can be meant by this expression? A right can be defined as a valid claim of someone. The term “universal” in the expression “universality of Human Rights” can firstly refer to what the word “someone” stands for in this definition. Then Human Rights are universal because they are rights of all human beings all over the world. This understanding of “universality” is unproblematic. Secondly, the term “universal” can refer to what is described by the word “valid” in this definition. This word can be understood in a twofold sense, namely as factual validity and as normative validity. A right has a factual validity within a community when it is recognized and respected as valid by the members of this community. Obviously Human Rights do not have a universal factual validity. There are many regions in the world in which they are terribly disregarded. On the other hand, the normative validity of a right is its obliging character and the reason for respecting it. It is important to see that a right cannot be deprived of this normative validity by factually disregarding it. The crucial point concerning the claim of a universality of Human Rights is marked by the question of whether Human

Human Dignity and Human Rights

81

Rights have a universal normative validity, that is, an obliging character for all human beings, peoples or cultures all over the world. With regard to this question, the differentiation between individual Human Rights and moral Human Rights becomes important. As I have pointed out, individual Human Rights are granted by a political authority, namely by the United Nations as the representative of the community of nations. It is by the acknowledgement of the United Nations that individual Human Rights have a universal normative validity and obliging force. Therefore, a universal validity of individual Human Rights cannot be claimed irrespective of their acknowledgement by the United Nations. Otherwise one falls into the Human Rights imperialism mentioned above. However, what is the case with moral Human Rights? Have such rights a universal normative validity for all human beings, peoples or cultures – even if the latter are unable to recognize this validity as a result of other cultural or religious traditions and another perception of what is due to a human being? Here, again, we are in danger of falling into a (moral) Human Rights imperialism which is based on the conviction that our Western view of morality is universally valid. What shall we conclude from this consideration? Does it imply a relativistic position, according to which Human Dignity and Human Rights are relevant only for our Western culture, but not for other cultures? A relativistic position means that someone passing the judgement “Human beings have a moral right not to be tortured” is simply expressing the fact that this judgement is true for him. If truth is relative in this sense, it cannot really be controversial. For one person this statement is true, for another it is not. The opposite of a relativistic position is a universalistic one, meaning that someone passing the judgement “Human beings have a moral right not to be tortured” is claiming that this judgement is true for everyone all over the world. In this view, other peoples or cultures are blind or stupid if they are unable to recognize this truth because it already is a truth for them. In my opinion, both positions, the relativistic and the universalistic, are untenable. When we say “Human beings have a moral right not to be tortured,” we claim that this judgement is true, but not that it is true for someone in particular. Therefore, it is wrong thinking to assume that other cultures which do not share our view of Human Rights are blind or stupid. Rather, they have another perception of what is due to a human being – a perception our own culture had for a long, long time. If we are really convinced that human beings have a moral right not to be tortured, we will consistently support efforts towards the global condemnation of torture. Then the mere fact that other cultures have another perception of what is due to a human being will be no reason for us to abstain from confronting them with the concepts of Human Dignity and Human Rights, or from fighting for the global institutionalization and de-

82

Johannes Fischer

fence of Human Rights. But we should not believe that our view of these concepts already is the view which is valid or true for all peoples all over the world, irrespective of their cultural and religious traditions. Such a belief tends to dictate our Western view of Human Rights to all other cultures. It can be a source of confrontation and conflict between Western culture and other cultures. The alternative to this belief is an attitude which is aware of the different characteristic features of other cultures and which tries to convince other peoples of the moral and political importance of the concepts of Human Dignity and Human Rights for living together in one world. It is an attitude of enabling other peoples to absorb the concepts of Human Dignity and Human Rights against the background of their own traditions so that these concepts come true in their context. Instead of postulating that moral Human Rights already have a universal normative validity, we should strive to bring about the situation whereby they attain a universal normative validity. In other words, we should speak of the universality of moral Human Rights not as a fact, but as a task or as a goal, namely that these rights acquire an obligatory character on the global horizon. Taking the different cultural backgrounds into consideration, it can be expected that different interpretations of Human Dignity and Human Rights will remain. However, we can already find such differences in the Western world, for instance concerning the death penalty or the torture-like treatment of prisoners – so-called “enhanced interrogation techniques” aimed at breaking the will of prisoners so that they cooperate with their tormentors – in the socalled war against terrorism. The fight for a universal validity of Human Rights is a long and laborious process. It demands of the Western world that it be willing to compromise. There are good reasons for the assumption of an affinity between Human Rights and democracy. The opinion that Human Rights already have a universal normative validity, irrespective of cultural or religious traditions, can tempt one towards the assumption that democracy is the only adequate kind of rule for all peoples all over the world, and that there is no alternative to this kind of rule.⁸ In today’s world, we see the dubiousness of this assumption in Afghanistan and many other countries. Aristotle, the philosopher of prudence, distinguished between three kinds of rule: despotism, aristocracy and democracy. In his view, the answer to the question of which kind of rule is the best for a society depends on the structure and the specific features of that society. There is not just one model of rule which is right or best for all peoples all over the world.

 Lilla, M., “Das leere Credo des 21. Jahrhunderts. Unsere Idealvorstellungen von Demokratie blenden die politischen Realitäten aus, in denen viele Menschen leben, “ NZZ 14 (Mai 2012).

Human Dignity and Human Rights

83

For most people in today’s world, it is of the greatest importance to live under conditions of political stability and peace. The forced import of democratic structures into a country, based on a conviction of the universality of Human Rights but ignoring the political structures and cultural traditions of this country, can have disastrous consequences in the form of political instability, internal conflicts, terrorism and all kinds of fanaticism.⁹ From a Western perspective, it is hard to watch human beings being deprived of basic Human Rights. However, it is far more terrible to see a country sinking into chaos, brute force and a lawless situation in which rights no longer exist at all. Therefore, the most important virtue that is required for a commitment to Human Dignity and Human Rights is the virtue of prudence. A merely moral zeal, which strives to adapt the world to our moral ideals without being aware of the real political and cultural circumstances human beings are living in, is in fact a danger to the maintenance of Human Dignity and Human Rights. Such a moral zeal can create a good feeling, namely being on the side of the good. However, it sacrifices the people it aims to help on the altar of its own moral ideals. From a Christian perspective, the real world cannot be divided into good and evil, white and black. All we can attempt is to realize what is relatively the best, and this can imply that we have to accept something very bad. Christian love does not orientate itself towards abstract ideals of the good, but towards the concrete situations and circumstances human beings are living in. However, I admit that there are groups or movements – for instance the Tea Party in the USA – which are considered Christian but which confuse Christian belief with moral ideology. My second remark refers to the specific contribution of the churches concerning the concepts of Human Dignity and Human Rights. In my opinion, this contribution does not consist in a theological grounding or justification of these concepts by deriving them from premises of Christian belief. As I pointed out, this kind of grounding leads to the questionable alternative between religious ideology on the one hand, and religious fundamentalism on the other. Let us take the statement “Human beings have Human Rights because they were created in the image of the triune God.” This statement raises the question of what is meant by the term “Human Rights.” Does this term refer to individual Human Rights? As I pointed out, such rights can only be granted by a political authority. Mere theological reasoning or grounding does not bring about such rights in the real world. Or does this statement refer to moral Human Rights? Then this statement raises fundamental questions concerning the nature of morality. Is it possible to justify a moral judgment by a mere intellectual derivation

 Lilla (cf. footnote 8) illustrates this fact using the example of Iraq.

84

Johannes Fischer

or argumentation?¹⁰ The empirical research on the nature of morality in psychology and neurobiology has made it obvious that morality has its foundations in human emotions.¹¹ Therefore, it is impossible to achieve a moral insight – for instance, to realize that human beings should not be humiliated or tortured – by mere intellectual reasoning.¹² The peculiarity of Christian ethics does not consist in a specific kind of intellectual grounding of moral judgements. Rather, it results from a specific kind of emotionally founded perception, namely the perception of Christian love (cf. Phil 1:9 f) as it is shaped by the narratives (cf. Luke 10:30 ff), texts (cf. Matt 25:35 – 40) and spiritual practices (intercession, meditation etc.) which are constitutive for the Christian belief. The specific contribution of the churches concerning Human Dignity and Human Rights rests on these spiritual resources¹³ which sensitize what is due to a human being. The churches are not morality agencies which already know what is morally right or wrong, and which make it their business to force the rest of the world to do what, for moral reasons, must be done. The churches know about the fragility and fallibility of human insight – including their own insight concerning good and evil. They are aware of the fact that this kind of insight is based on passive experience, namely that it emerges from the renewal of the hearts and minds in the spirit of love (2Tim 1:7; 1Cor 16:14). The active commitment of the churches to Human Dignity and Human Rights has its foundation in this passive, spiritual experience. Finally, the churches know about the reality of sin, and that all human efforts will not be enough to bring about a just and peaceful world. Therefore, they refrain from a naïve do-gooder optimism. However, they also refrain from a pessimism which is based on the opinion that there is nothing at all that human beings can do to change things for the better. Their commitment to Human Dignity and Human Rights is guided by a hope which reaches beyond all that human beings can achieve in this world, namely the hope that God’s kingdom will come.

 Prichard, H. A., “Does Moral Philosophy Rest on a Mistake?” Mind 21 (1912).  Fischer, J. und Gruden, S., Hgg, Die Struktur der moralischen Orientierung. Interdisziplinäre Perspektiven (Münster-Hamburg-London: LIT-Verlag, 2010). Ammann, Ch., Emotionen – Seismographen der Bedeutung. Ihre Relevanz für eine christliche Ethik (Stuttgart: Kohlhammer, 2007).  With regard to such an intellectual reasoning Prichard (cf. footnote 10) speaks of a “nonmoral thinking.”  Fischer, J., “Die religiöse Dimension der Moral als Thema der Ethik,” ThLZ 4 2012, 388 – 406. J. Cottingham, The Spiritual Dimension. Religion, Philosophy and Human Value (Cambridge: Cambridge University Press, 2005).

Human Dignity and Human Rights

85

Bibliography Ammann, Ch. Emotionen – Seismographen der Bedeutung. Ihre Relevanz für eine christliche Ethik, Stuttgart: Kohlhammer, 2007. Cottingham, J. The Spiritual Dimension. Religion, Philosophy and Human Value, Cambridge: Cambridge University Press, 2005. Fischer, J. und S. Gruden, Hg., Die Struktur der moralischen Orientierung. Interdisziplinäre Perspektiven, Münster-Hamburg-London: LIT-Verlag, 2010. Fischer, J. “Die religiöse Dimension der Moral als Thema der Ethik.” ThLZ 4 (2012). Habermas, J. Die Zukunft der menschlichen Natur. Auf dem Weg zu einer liberalen Eugenik? Frankfurt: Suhrkamp, 2005. Härle, W. Ethik. Berlin/New York: Walter de Gruyter, 2011. Joas, H. Die Sakralität der Person. Eine neue Genealogie der Menschenrechte, Berlin: Suhrkamp, 2011/The Sacredness of the Person. A New Genealogy of Human Rights (Washington, D. C.: Georgetown University Press, 2013). Lilla, M. “Das leere Credo des 21. Jahrhunderts. Unsere Idealvorstellungen von Demokratie blenden die politischen Realitäten aus, in denen viele Menschen leben. “ NZZ 14 (Mai 2012). Prichard, H. A. “Does Moral Philosophy Rest on a Mistake?” Mind 21 (1912). Wolterstorff, N. Justice: Rights and Wrongs, Princeton: Princeton University Press, 2008.

Daniel Louw

Homo Aestheticus within the Framework of Inhabitational Theology An Anthropological Perspective on Identity and Dignity within the Human Rights Discourse The September-October mine strikes in South Africa put the question concerning the relationship between human dignity and human rights on the agenda of the human rights discourse anew. On the 2nd October 2012, pictures of violent people appeared on television. On cardboard was written the following slogan: “We demand our right to human dignity.” The next day, in a report on crime in the Cape Flats, one of the daily newspapers pointed out that gangsters were claiming their right to point guns at the police. Some politicians and officials in government warned the police against the use of force. The message was: they should rather care for the dignity of gangsters. Some political activists argued that the police should not defend themselves with guns. In the meantime, a child of six, Leeana van Wyk, was severely wounded by the shooting of gangsters near to her home. During the riots, the strikers also killed a policeman. In the name of employees’ rights, truck drivers set 17 trucks on fire. Drivers who carried on with their duties were intimidated. Some of the drivers were severely wounded and ended up in hospital. All was done, and even justified, in the name of democracy and human rights. To my mind, the above mentioned cases point in the direction of a very fundamental anthropological question: who are the people (the strikers) demanding human rights, and who are the people defending human rights (the police)? Perhaps the fundamental question is: who am I, as a human being? In an article in the German paper Die Zeit, it was mentioned that in a recent discussion on bestiality in parliament (Bundestag), the following questions surfaced: is it a human right to have intercourse with animals, and, what are the rights of animals in this regard?¹ If democratization means that anything goes, what about the question of human dignity in the case of bestiality?

 Mangold, I., “Sex mit und ohne Macht, “ Die Zeit 50 (2012), 77: “Es soll keine Normen mehr geben außer die der Selbstbestimmung. Die aktuelle Sexualmoral wird deshalb vom Motto aller Swingerclubs kongenial ausgedrückt: ‘Alles kann, nichts muss.’”

88

Daniel Louw

Should the claim for human rights rather emanate from a fundamental understanding of human dignity with the emphasis on the anthropological question: who am I (identity-question) when I claim my human rights? This claim is not a neutral issue. Human rights are embedded in paradigms and represent philosophies of life. For example, human rights in our global village are, most of times, framed by consumption and the demands of a marketdriven economy. Even processes of democratization are embedded in values emanating from capitalistic production enterprise, with its emphasis on wealth and power. I recall how once, in a debate on HIV and AIDS, one of the speakers demanded that Africans in poor communities have the right to smoke Marlborough cigarettes. It is even a right of poor people to buy Coca Cola in remote rural areas. Nevertheless, in many poor countries in Africa the human rights discourse is more a luxury than a necessity. For poor people, the basic question is how to survive on a daily basis without losing one’s human dignity. Zanotelli, in the publication The Slum,² describes the slums of Nairobi as the hell of life. The slums are usually placed below the sewer line. Within a context of severe poverty, even before you dare to pose the question of human dignity, you first need to wash away your materialism, rationalism and “baroque Catholicism.”³ The next step is to descend into the hell of the slums; you need to undergo the baptism of the poor in order to talk about dignity. “You learn to read things upside down. Your world-view, your theology, even your morality, just goes to pieces. When I try to dissuade young girls from going to town for prostitution, they tell me there is no other way to survive. ‘But you are sure to meet AIDS!’ I insist. ‘It’s OK! Die of AIDS or die of hunger, what’s the difference? Or maybe there is! You have a chance of longer life with AIDS.’ I understood that what I held as morality is, to a large extent, middle class morality.”

Problem Identification Within the human rights discourse it is often extremely difficult to differentiate between human rights and human dignity. ⁴ The discourse has become “slip-

 Cf. Zanotelli, A., “A Grace Freely Given” in The Slums: A Challenge to Evangelization, ed. Francesco, P. and Abeledo Y. (Nairobi: Pauline Publications, 2002), 13 – 15.  Ibid., 15.  “The Reformed Theological Basis grounds human rights in human dignity and human dignity in humanity’s being an image of God, and the being an image of God in God’s right to human beings.” Moltmann, J., On Human Dignity. Political Theology and Ethics (London: SCM Press,

Homo Aestheticus within the Framework of Inhabitational Theology

89

pery.” Human dignity has even become an in-between issue: between sanctity and depravity; ⁵ between man as beast and man as an angel (merely divine).⁶ Mostly, the debate focuses on moral and democratic issues within the framework of personal, social and political ethics. Moltmann distinguishes between human rights⁷ as the quest for freedom, justice and equality, and dignity, which refers to how these issues impact on the quality of life of the individual, the unique and particular person. “Human rights are plural, but human dignity exists only in the singular … The dignity of humanity is the only indivisible, inalienable, and shared quality of the human being.”⁸ According to Huber,⁹ ideas of human dignity and human rights have been shaped by a long historical development. Within the early European tradition, the quest for human dignity was closely connected to the rank and status of particular persons in society. The concept of dignity (dignitas) is therefore a social category related to that of honor (honor).¹⁰ The turn toward the human being as the centrum of the whole of cosmos was fed, inter alia, by the Renaissance and the humanism of the Enlightenment. Due to the Kantian influence (human beings as autonomous rational beings), as well as the impact of the Enlightenment and processes of secularization, the notion of human autonomy put an “anthropocentric” world-view in the center of the human dignity discourse.

1984), 12. Kraynak devotes a whole article on the imago Dei to explaining the connection between human dignity and the notion “made in the image of God,” cf. Kraynak, R. P., “‘Made in the Image of God’: The Christian View of Human Dignity and Political Order,” in Defense of Human Dignity. Essays for Our Times, ed. Kraynak, R. P. and Tinder, G. (Notre Dame, Indiana: University of Notre Dame Press, 2003), 81– 118.  Cf. Witte, J. R., “Between Sanctity and Depravity: Human Dignity in Protestant Perspective,” in Defense of Human Dignity. Essays for Our Times, ed. Kraynak, R. P. and Tinder, G. (Notre Dame, Indiana: University of Notre Dame Press, 2003), 119 – 138.  Cf. Meilaender, G. C., Neither Beast Nor God. The Dignity of the Human Person (New York/London: New Atlantis Books, 2009).  Rawls identifies two principles of justice. 1. Each person has an equal right to the most extensive scheme of equal basic liberties, compatible with a similar scheme of liberties for all. 2. Social and economic inequalities are to meet two conditions: they must be (a) to the greatest expected benefit of the least advantaged and (b) attached to offices and the positions open to all under conditions of fair opportunity. cf. Rawls J., “A Well-Ordered Society,” in Defense of Human Dignity. Essays for Our Times, ed. Kraynak, R. P. and Tinder, G. (Notre Dame, Indiana: University of Notre Dame Press, 2003), 193 – 206, here 197– 198.  Moltmann, J., On Human Dignity. Political Theology and Ethics (London: SCM Press, 1984), 9.  Cf. Huber, W., Violence. The Unrelenting Assault on Human Dignity (Minneapolis: Fortress Press, 1996), 114.  Cf. ibid., 115.

90

Daniel Louw

Within an anthropocentric world-view, “dignity” has increasingly meant the worth of being human. “Dignitas became so closely associated with humanitas as to be construed as a synonym. To be able to say what dignity is would be to describe the fundamental meaning of being human.”¹¹ Dignity presupposes the following: to behave in a humane way and to be human.¹² “For this reason, dignity has become the key concept in the worldwide struggle for human rights.”¹³ Initially, European humanism linked the notion of human dignity to the Christian concept of humans being created in the image of God. Human beings became the microcosm of God, containing in themselves a multitude of choices. One can therefore say that the “modern age, which began with humanism, is characterized by the conviction that human dignity is anchored in the self, namely, in one’s rational talents.”¹⁴ It was when the recognition of the equal dignity of all human beings was incorporated within the politics of democratization and institutionalized by international law that the shift from dignity to human rights became a focal point for the discourse on the value and worth of human beings. The reason, however, is perhaps that human dignity requires human rights for its embodiment, protection, and full flowering.¹⁵ One must therefore admit that without human rights, human dignity becomes a fleeting idea, without concrete and contextual meaning. In his book On Human Dignity, Jürgen Moltmann also connects human rights and human dignity, as if the two concepts are exchangeable. “Through the service of reconciliation, human dignity and rights are restored in this inhuman world.”¹⁶ However, the important question in the human rights debate is whether rights are a precondition for human dignity, or whether human dignity is a fundamental qualifying factor. Hence, the attempts to differentiate between the two

 Meeks, M. D., Introduction, in Moltmann, J., On Being Human (London: SCM Press, 1984): ix – xiv, here ix.  For Rombach, dignity then describes the humane human being (Der menschliche Mensch); the human being shaped by the social processes of identity and meaningful space (Idemität=a spiritual networking of meaning as the whole which gives significance to every particular part). cf. Rombach, H., Strukturanthropologie. “Der menschlich Mensch” (Freiburg/München: Verlag Karl Alber, 1987), 379.  Meeks, M. D., Introduction, in Moltmann, J., On Being Human (London: SCM Press, 1984): ix – xiv, here ix.  Huber, W., Violence. The Unrelenting Assault on Human Dignity (Minneapolis: Fortress Press, 1996), 117, ibid., 83.  Meeks, M. D., Introduction, in Moltmann, J., On Being Human (London: SCM Press, 1984): ix – xiv, here ix.  Moltmann, J., On Human Dignity. Political Theology and Ethics (London: SCM Press, 1984), 31.

Homo Aestheticus within the Framework of Inhabitational Theology

91

concepts in order to understand better their interconnectedness. “Human rights spring from human dignity and not vice versa.”¹⁷ Within the theological discourse on human rights, the anthropological question regarding human dignity and human rights revolves mostly around the hermeneutics of the imago Dei. According to Kraynak¹⁸, the problem with the notion of the imago Dei ¹⁹ resides in the fundamental difference between the biblical and the contemporary understanding of human dignity. “In the biblical view, dignity is hierarchical and comparative, in the modern, it is democratic and absolute.”²⁰ A further problem surfaces when the biblical construct of the imago Dei does not refer so much to inherent ontological dignity, but to qualitative representation within the dynamics of relationships. As Kraynak pointed out, human dignity is a relational category: “it is also something to be won or lost, merited of forfeited, augmented or diminished.”²¹ Within the tradition of Plato, Aristotle and Kant, dignity could be related to intelligibility.²² It then resides in the human nous or mind. Eventually, dignity and rights become qualities of radical autonomy. “But the imago Dei has now been given a new twist, which includes the ethical imperative to affirm the rights and dignity of the self-defining person.”²³

 Meeks, M. D., Introduction, in Moltmann, J., On Being Human (London: SCM Press, 1984): ix – xiv, here xi.  Kraynak, R. P., “‘Made in the Image of God’: The Christian View of Human Dignity and Political Order,” in Defense of Human Dignity. Essays for Our Times, ed. Kraynak, R. P. and Tinder, G. (Notre Dame, Indiana: University of Notre Dame Press, 2003), 81– 118, here 90.  “In reflecting on the Christian view of human dignity, scholars commonly begin with the biblical references to the imago Dei – to the image of God in man. For example, Reinhold Niebuhr argues in The Nature and Destiny of Man that the human quality most reflective of the divine nature is “self-transcendence”: the capacity to rise above our natural selves and freely construct a world of higher meanings.” ibid., 83.  Kraynak, R. P., “‘Made in the Image of God’: The Christian View of Human Dignity and Political Order,” in Defense of Human Dignity. Essays for Our Times, ed. Kraynak, R. P. and Tinder, G. (Notre Dame, Indiana: University of Notre Dame Press, 2003): 81– 118, here 90.  Ibid., 91.  “On one common reading, ‘dignity’ refers to a basic faculty; it denotes the bare capacity for intelligent free choice shared equally by all non-damaged persons. One’s rational freedom may be misused, but the simple possession of it is the ground of respect.” Jackson, T. P., “A House Divided Again: Sanctity vs. Dignity in the Induced Death Debate,” in Defense of Human Dignity. Essays for Our Times, ed. Kraynak, R. P. and Tinder, G. (Notre Dame, Indiana: University of Notre Dame Press, 2003), 139 – 163, here 143.  Kraynak, R. P., “‘Made in the Image of God’: The Christian View of Human Dignity and Political Order,” in Defense of Human Dignity. Essays for Our Times, ed. Kraynak, R. P. and Tinder, G. (Notre Dame, Indiana: University of Notre Dame Press, 2003), 81– 118, here 112.

92

Daniel Louw

Meilaender²⁴ distinguishes between two concepts of dignity: human and personal. Human dignity then has to do with the powers and the limits characteristic of our species – a species marked by the integrated functioning of body and spirit. Personal dignity refers to the individual person whose dignity calls for our respect whatever his/her powers and limits may be. Although human dignity refers to many layers of meaning, Meilaender points to equal respect as a principle and theoretical basis for human dignity.²⁵ Nevertheless, one should agree with Meeks²⁶ that “dignity” is a difficult word to define. It is often used as an exchangeable concept for human rights. “For this reason, dignity has become the key concept in the worldwide struggle for human rights,”²⁷ a struggle embedded in different cultural contexts and deep ideological disagreements over human rights. The further problem is that dignity defined in many different ways immediately entails a counter-definition of others as inhuman, not possessing dignity. What then is “human” in human dignity and human rights? Especially if one takes Hobbes’ notion of the wolf in human nature seriously: homo homini lupus. ²⁸ Or is there any place, and space, for a bigger emphasis on “human,” perhaps for a kind of “humanism” in Christian spirituality? Can one use the notion of “spiritual humanism” as a paradigmatic framework for human dignity? In preparation for this essay, I was so surprised when taking up the work of Ludwig Feuerbach on the essence of the Christian faith, Das Wesen des Christentums, to discover his struggle to free traditional and therefore “orthodox theology” from its God-ideology, and to turn theological reflection towards the issues of life, towards the meaning of our being human within social contexts.²⁹ He called this focal point “the well-being” (heil) of humans.³⁰

 Meilaender, G. C., Neither Beast Nor God. The Dignity of the Human Person (New York/London: New Atlantis Books, 2009), 8.  Ibid., 89.  Cf. Moltmann, J., On Human Dignity. Political Theology and Ethics (London: SCM Press, 1984), ix.  Meeks in ibid., ix.  Cf. Negt, O., “The Unrepeatable. Changes in the Cultural Concept of Dignity,” in The Discourse of Human Dignity, ed. Ammicht-Quinn, R., Junker-Kelly, M. and Tamez, E. (London: SCM Press, 2003), 25 – 34, here 31.  The novelist George Elliot was so impressed by Feuerbach’s Das Wesen des Christentums, that it helped her to shape her philosophy of life. Thus, Elliot’s attempt to convey to a largely Orthodox Christian audience an essentially humanist vision of life. cf. Elliot, G., Scenes of Clerical Life (Middlesex: Penguin Books, 1973), 22.

Homo Aestheticus within the Framework of Inhabitational Theology

93

Presupposition and Basic Assumption Human self-(dignity)-realization (Seligkeit des Menschen) (Feuerbach) corresponds with the aesthetic experience of life fulfilment. The importance of life fulfilment in the search for meaning and the formation of identity can be illustrated by the following question, posed to Morrie Schwartz by his student Mitch Albom in the now classic book Tuesdays with Morrie: “‘Weren’t you ever afraid to grow old,’ I asked? ‘Mitch, I embrace aging.’ … ‘Yes,’ I said, ‘but if aging were so valuable, why do people always say, “Oh, I wish I were young again”?’ … ‘You know what that reflects? Unsatisfied lives. Unfulfilled lives. Lives that haven’t found meaning. Because if you’ve found meaning in your life, you don’t want to go back. You want to go forward.’“³¹ Fundamentally, the human rights discourse, as a challenge to a theological anthropology, is about the significance of human life (fulfilment), the value of human life and the interplay between identity and dignity. Thus, dignity “presupposes a whole anthropology.”³² However, a theological anthropology is immediately challenged by the fact of human failure and vulnerability. In the debate on a theological approach to anthropology, theologians very aptly point out the notion of human sin and the connection between the corruptio totalis ³³ and human fallibility. In many cases, the reason why Christian spirituality was hesitant to be engaged in the debate on human dignity and human rights, was the use of the notion of the fall as a starting point for a theological anthropology. For example, the anthropological notion of creation and the “image of God” stir up the debate on the doctrine of sin. Hence, the shift in many “enlightened” theological circles for human rights to withdraw from the  For humans, he used the concept of the subjective dimension of life. “Der wesentliche Standpunkt der Religion ist der praktische, d. h. hier der Subjektive.” Feuerbach, L., Das Wesen des Christentums (Leipzig: Verlag Philipp Reclam, 1904), 283. Hence, his assertion: “Der Zweck der Religion ist das Wohl, das Heil, die Seligkeit des Menschen, die Beziehung des Menschen auf Gott, nichts anders als die Beziehung desselben auf sein Heil: Gott ist verwirklichtes Seelenheil oder die unbeschränkte Macht, das Heil, die Seligkeit des Menschen zu verwirklichen.” ibid.  Albom, M., Tuesdays with Morrie. An Old Man, a Young Man, and Life’s Greatest Lesson (London: Warner Books, 2000), 118.  Valdier, P., “The Person Who Lacks Dignity,” in The Discourse of Human Dignity, ed. Ammicht-Quinn, R., Junker-Kelly, M. and Tamez, E. (London: SCM Press, 2003), 49 – 56, here 50.  See the impact of St Augustine in this regard. Human beings are robbed of their superhuman gifts or dignity due to a peccatum originale. Sin robbed human beings of their original freedom. See Rebel, J., Pastoraat in pneumatologisch perspektief. Een theologisch verantwoording vanuit het denken van A. A van Ruler (Kok: Kampen, 1981), 171– 174.

94

Daniel Louw

doctrine of original sin in order to describe a theological anthropology beyond the categories of the fall. “The more uninhibited and optimistic the talk was regarding the dignity and abilities of humans, the greater was the need to relativize and secularize the doctrine of original sin. The doctrine appears – in the form of insight into the finiteness and fallibility of humans – merely as a limiting condition of human self-realization, no longer a description of the very essence of humans.”³⁴

Hypothesis My basic hypothesis is that in order to detect the meaning of identity and dignity, and to promote human rights, our starting point should be aesthetics (where the emphasis is on the value and meaning of human life) and not ethics (where the emphasis is on moral issues and the tension between good and evil). When one starts with human rights, the discourse runs the danger of becoming moralistic in the sense of conditional demands (a moralistic imperative). The human rights discourse then runs the risk of merely defining legalistic prescriptions for human behavior. Dignity as a legalistic principle can even rob human beings of their dignity. Determinism defines the dynamics of being human. The wolf then dictates the claim for human rights. The argument will be that human beings should be assessed in the first place within aesthetic categories and not from the perspective of ethical categories (morality and sinfulness). Theological ethics emanates from theological aesthetics.³⁵ In systematic theology, human dignity is mostly viewed as an ethical issue and not as an aesthetics issue. For example, Huber links human dignity and

 Huber, W., Violence. The Unrelenting Assault on Human Dignity (Minneapolis: Fortress Press, 1996), 120.  For a discussion on a theological aesthetics, see Murphy, F. A., “Hans Urs von Balthasar: Beauty As Gateway to Love,” in Theological Aesthetics after von Balthasar, ed. Bycgov, O. V. and Fodor, J. (Aldershot: Ashgate, 2008), 5 – 17, here 5. Hans Urs von Balthasar founds his theological aesthetics on the insight that being has been overcome by the beauty of Christ. “For what von Balthasar asks us to accept is not simply that our (humanly) inspired experiences of Beauty resonate analogously with the divine Beauty (or, more precisely, that they are always already shaped by the resonance within them of the divine Beauty of the incarnation), but that there is a further analogy between our critical and scholarly reflections on these human experiences and the way in which we should be reflecting theologically on the Divine Beauty.” Pattison, G., “Is the Time Right for a Theological Aesthetics?” in Theological Aesthetics after von Balthasar, ed. Bycgov, O. V. and Fodor, J. (Aldershot: Ashgate, 2008), 107– 114, here 109 f.

Homo Aestheticus within the Framework of Inhabitational Theology

95

human rights to an “ethics of human dignity.”³⁶ “Human dignity is a packed-up ethical argument. Its lofty status can be recognized from the way in which it is written into the texts of constitutions.”³⁷ Theological aesthetics does not ignore the reality of human fallibility, but rather takes as its starting point the exclamation of God that the creation of humans was an aesthetic event, regarded in the Genesis narrative as excellent and “very good.” Good, then, not as an ethical category, but as a meaning category, detecting destiny, significance and purposefulness (telos), as well as an aesthetic category, pointing to worth and vocation. Theological aesthetics deals with the quality and value of our being functions. It emanates from our eschatological³⁸ status as affirmed by the cross and resurrection of Christ. Aesthetics in this regard is an “ontological category,” describing our status as a “new creation” before God (coram Deo). In this respect, the notion of ethos is most helpful. Ethos refers to virtue and attitude, conduct and habitus,³⁹ the essential make-up and characteristics of something (human identity). Ethos refers to the aesthetics of identity and dignity. In this case, identity represents the unique personal, individual characteristics of a human being (our calling and vocation), while dignity reflects personal self-value and self-image as related to meaning and worth. Aesthetics without ethics is not possible. While ethos is connected to the aesthetics of value and meaning, ethics represents the normative framework of life; it gives direction to ethos and represents the imperative within the indicative of aesthetics. Ethics represents the normative framework for meaningful living. However, being (Dasein) and the mode of human existence (So-Sein) are, in a spiritual approach to anthropology, more fundamental than doing.

 “In this book I hope to clarify what an ethics of human dignity can contribute to this debate, in particular the potential within Jewish and Christian traditions for an adequate approach to this topic.” Huber, W., Violence. The Unrelenting Assault on Human Dignity (Minneapolis: Fortress Press, 1996), xvi.  Ammicht-Quinn, R., “Whose Dignity Is Inviolable? Human Beings, Machines and the Discourse of Dignity,” in The Discourse of Human Dignity, ed. Ammicht-Quinn, R., Junker-Kelly, M. and Tamez, E. (London: SCM Press, 2003), 34– 45, here 39.  With eschatology is meant not the doctrine about the end of things and history (futurum), but the doctrine about the essence of things (kairos and adventus).  In 1983 already, Edward Farley advocated the understanding of practice in Practical Theology as habitus. Theologia practica is for him habitus: “Practice meant that aspect of the habitus or wisdom in which the divine object sets requirements of obedience and life.” Fairley, E., “Theology and Practice outside the Clerical Paradigm,” in Practical Theology, ed. Browning, D. S. (San Francisco: Harper and Row, 1983).

96

Daniel Louw

The argument of Drewermann points in the same direction.⁴⁰ Being and the identity-question “Who am I?” are more fundamental than the question “What should I do?” Inner truth and knowledge have priority over behaviour and external actions.⁴¹ The task of hermeneutics is to bring the deeper levels of existential anxiety to consciousness.⁴² If it fails to do this, a hermeneutics of human self-understanding faces the danger of becoming merely a process of moralizing. A theological aesthetics reckons with two important categories: doxa and charisma. Within a Christian spiritual approach, dignity should be linked to habitus as a reflection of the glory of God. “Glory (doxa) is the closest word to dignity in the New Testament.”⁴³ My second hypothesis is that dignity is not a value inherent to the person;⁴⁴ dignity is a relational category. “So dignity is not an attribute peculiar to persons and their singularity; it is a relationship, or rather manifests itself in the gesture by which we relate to others to consider them human, just as human as we are, even if their appearance suggests non-humanity, indeed inhumanity.”⁴⁵ I cannot “claim” dignity, I am dignity. I dignify my life by means of the quality of habitus, and informed, responsible decision-making. Thirdly, dignity is, in essence, a spiritual category. It refers to meaning and the quality of life. As a spiritual category within the framework of a Christian reflection on anthropology, one cannot avoid the notion of grace and unconditional, sacrificial love (the eschatological qualification), as well as the notion of the fruit of the Spirit (charisma) (the pneumatological qualification). Hence, our assumption that human dignity and human rights reside as spiritual categories in

 Cf. Drewermann, E., Tiefenpsychologie und Exegesen, Band 2 (Freiburg: Olten, 31992).  Ibid. 755.  Drewermann, E., Die Spirale der Angst (Freiburg: Herder, 41991), 339 describes the task of religion as bringing peace to our existential anxiety. He assumes that religion cannot change a person. Religion’s task is rather to free our reason (Vernunft) from anxiety-based delusions. Religion can initiate a “dream of trust” (Traum des Vertrauens), for instance the ritual of the Eucharist, with its dimension of forgiveness and spirituality. Such a dream is more than a “principle of hope.” It actualizes an alternative for our personhood, it reveals what we suppress in the unconscious, and it creates a new identity.  Kraynak, R. P., “‘Made in the Image of God’: The Christian View of Human Dignity and Political Order,” in Defense of Human Dignity. Essays for Our Times, ed. Kraynak, R. P. and Tinder, G. (Notre Dame, Indiana: University of Notre Dame Press, 2003), 81– 118, here 93.  For Hobbes, dignity is bound up with power and domination. See Negt, O., “The Unrepeatable. Changes in the Cultural Concept of Dignity,” in The Discourse of Human Dignity, ed. Ammicht-Quinn, R., Junker-Kelly, M. and Tamez, E (London: SCM Press, 2003), 25 – 34, here 30.  Valdier, P., “The Person Who Lacks Dignity,” in The Discourse of Human Dignity, ed. Ammicht-Quinn, R., Junker-Kelly, M. and Tamez, E (London: SCM Press, 2003), 49 – 56, here 55.

Homo Aestheticus within the Framework of Inhabitational Theology

97

the fact that dignity is enfleshed in human bodies due to the indwelling presence of the Holy Spirit; human dignity is a matter of inhabitational theology. The paper will be divided into four main parts. The first is a reflection on human dignity and meaning⁴⁶ from the perspective of a Christian spiritual aesthetics. What is the value and meaning of our life from an eschatological point of view? The second part will proceed to the more qualitative question of being functions (identity), as related to character and virtue. How is human identity (the sense of uniqueness and particularity) related to processes of growth and responsible decision-making? The third part is a reflection on the interplay between identity, meaning and dignity, from the perspective of normativity (the ethics of human rights). What is meant by the normative dimension of life? What is the connection between identity, dignity and the quest for human rights within a theological anthropology? In the last part I will propose a possible framework for theory formation in practical theology and praxis thinking. A hermeneutical model will be designed in order to understand the interplay between dignity and rights within the parameters of a systems approach.

1 Human Dignity and Meaning within an Eschatological Perspective: The “Spiritual Beauty” of the Human Soul Without a sense of meaning, significance and destiny, human rights become lost within the desert of mere processes of democratization, with the emphasis on personal and individual freedom; i. e. the attempt to liberate people from oppressive structures, the abuse of power and inhumane acts of discrimination and stigmatization – the latter, without any doubt, vital and important in a debate

 On the connection between meaning and the Christian faith, see Gräb, W., Lebensgeschichten, Lebensentwürfe, Sinndeutung. Eine Praktische Theologie gelebter Religion. (Gütersloh: Gütersloher Verlagshaus, 2000). Gräb, W., Sinn fürs Unendliche. Religion in der Mediengesellschaft (Gütersloh: Chr. Kaiser/Gütersloher Verlagshaus, 2002). Gräb, W., Sinnfragen. Transformationen des religiösen in der modernen Kultur (Gütersloh: Chr. Kaiser/Gütersloher Verlagshaus, 2006). “Das Wort ‘Gott’ kann zu diesen Artikulationen religiöser Erfahrung gehören. Dann ist es Gott, dem der Mensch dankt für das Geschenk des Lebens oder den er bedrängt mit der Frage nach dem ‘Warum.’” Gräb, W., Sinnfragen. Transformationen des religiösen in der modernen Kultur (Gütersloh: Chr. Kaiser/Gütersloher Verlagshaus, 2006), 30.

98

Daniel Louw

on the value of our being human. However, one can be free “from,” but is not necessarily free “for” (significance and purposefulness). Due to the democratic ideal, Christian spirituality has been hijacked by political interventions of democratization. Dignity (spiritual realm) and rights (political realm) complement each other. “They complement each other because Christianity provides a spiritual foundation for the democratic principles of equality and liberty, while democracy offers a practical system of government that suits Christian ‘concerns for human dignity and depravity.’”⁴⁷ Spirituality⁴⁸ makes life sacred.⁴⁹ The challenge to a theological anthropology is to describe the dynamics between dignity and meaning within the parameters of a spiritual hermeneutics in order to understand better how, eventually, identity is related to human dignity and the spiritual quest for meaning and destiny. Meaning⁵⁰ and destiny, then, not in the sense of a fixed, purpose-driven agenda, but in the sense of an understanding of the quality of life needed to create a humane, safe environment and

 Kraynak, R. P., “‘Made in the Image of God’: The Christian View of Human Dignity and Political Order,” in Defense of Human Dignity. Essays for Our Times, ed. Kraynak, R. P. and Tinder, G. (Notre Dame, Indiana: University of Notre Dame Press, 2003), 81– 118, here 105.  Within the current debate on the relationship between spirituality and sociology, it is clear that “mysticism” often substitutes “spirituality” due to the decline of church religion. Georg Simmel explains this change by saying that traditional religions are gradually rigidified, and there is an emergent need for a religious feeling that is not constrained by declared dogmas, tenets and teachings of established religions. See Varga, I. and Simmel, G., “Religion and Spirituality,” in A Sociology of Spirituality, ed. Flanagan, K. and Jupp, P. C. (Aldershot: Ashgate, 2007), 145 – 160, here 157.  “If religion refers to a normative universe to which we must adapt, spirituality makes the sacred open to the individual to build and find meaning for his or her own life.” Berger in Giorgian, G., “Spirituality: From a Religious Concept to a Sociological Theory,” in A Sociology of Spirituality, ed. Flanagan, K. and Jupp, P. C. (Aldershot: Ashgate, 2007), 161– 180, here 170.  In his book on religion as an expression of meaning in life, Wilhelm Gräb (cf. Gräb, W., Sinnfragen. Transformationen des religiösen in der modernen Kultur (Gütersloh: Chr. Kaiser/Gütersloher Verlagshaus, 2006), 52) argues for an understanding of religion as the search for meaning and meaningful self-expression (Selbstdeutung) and self-understanding. The authentic experience of meaningful self-expression leads to an experience and feeling of being grounded and cared for (Gegründet- und Gehaltseins; Geborgenheit). This experience of being accepted within the very essence of your being, or – in the terms of the famous practical theologian Schleiermacher – “das Gefühl der schlechthinnigen Abhängigkeit” (feeling of dependence) (see Landmesser, C. und Bultmann, R., “Religion, Kultur und Existenz,” in Kompendium Religionstheorie, hg.v. Drehsen, V. et al. (Göttingen: Vandenhoeck und Ruprecht, 2005), 120 – 134) can be described as an experience of transcendence and therefore as the moment of the birth of religion. (Landmesser, C. und Bultmann, R., “Religion, Kultur und Existenz,” in Kompendium Religionstheorie, hg.v. Drehsen, V. et al. (Göttingen: Vandenhoeck und Ruprecht, 2005), 120 – 134, here 128).

Homo Aestheticus within the Framework of Inhabitational Theology

99

space for human interaction (expressive communalism).⁵¹ According to Flory and Miller, “expressive communalism” displays a kind of immediate artistic expression of meaningful living, that which one can call an “embodied spirituality.” Embodied spirituality should be understood as an aesthetic qualification of our being human. The notion of aesthetics should therefore be first on the agenda of our quest for dignity within processes of democratization.

Homo Aestheticus: The Beautification of Human Life “Man is homo festivus and fantasia homo.”⁵² One can even say that the attempt to formulate the Christian faith in rational categories and to define God in terms of a correct doctrine (true confession) turned the Christian faith in the direction of scientia (scientific knowledge, the positivistic knowledge of the mind), rather than to sapientia (wisdom and the devotional knowledge of the heart). Cox very aptly remarked: “Scientific method directs our attention away from the realm of fantasy and toward the manageable and the feasible.”⁵³ However, man as homo aestheticus points in the direction of sapientia, of “spiritual beauty”: the passionate expression of redemptive grace and sensitive benevolence. Within traditional Christianity and orthodox church doctrine, the notion of “beauty” is often absent in theological reflection.⁵⁴ There is a kind of indifference, which treated beauty as the beast, something to be excluded, marginalized or ignored.⁵⁵

 “Expressive communalism” refers to the search for spirituality and the pursuit of artistic expressions of the new young generation, the so-called Post-Boomers. “We believe that we are witnessing the emergence of a new form of spirituality, ‘expressive communalism.’ This new form is related to the individualistic forms of spirituality … Post-Boomers have embedded their lives in spiritual communities in which their desire and need for expressive/experiential activities, whether through art, music, or service-oriented activities, and for a close-knit, physical community and communion with others, are met. These young people are seeking out different forms of spirituality in response to the shortcomings they see as inherent in these forms. They are seeking to develop a balance for individualism and rational asceticism through religious experience and spiritual meaning in an embodied faith.” Flory, R, W. and Miller, D. E., “The Embodied Spirituality of the Post-Boomer Generations,” in A Sociology of Spirituality, ed. Flanagan, K. and Jupp, P. C. (Aldershot: Ashgate, 2007), 201– 218, here 217.  Cox, H. W., The Feast of Fools (New York/London: Harper& Row, 1969), 11.  Ibid., 10.  Fairley, E., Faith and Beauty. A Theological Aesthetic (Aldershot: Ashgate, 2001), 10.  Cf. ibid. 7. For Fairley, the redemptively transformed imago is itself beautiful, and that redemption engenders sensibilities to beauty in all of its forms. Cf. ibid. 101.

100

Daniel Louw

In 1992, Ellen Dissanyake wrote a book with the title: Homo Aestheticus: Where Art Comes From and Why. Her basic assumption was that aesthetics and art can be regarded as a natural general proclivity that manifests itself in culturally learned specifics, such as dances, songs, performances, visual display and poetic speech. Art makes life special because art-making involves taking something out of its everyday and ordinary use-context and making it somehow special – the ordinary becomes extraordinary. A human being is essentially homo aestheticus: the innate need for creative imagination; i. e. the making of transitional objects as a means of overcoming loss and the limitations set by suffering and vulnerability. The human being as homo aestheticus refers to visionary anticipation and artistic appreciation within the quest for meaning and the creative attempt to signify and decode the markings of life.⁵⁶ Aesthetics coincides with the human quest for meaning and attempts of meaning-giving; it implies the aesthetic act of deciphering.

Signs and Significance: The Deciphering of Meaning⁵⁷ The following remark of the young Benedictine novice in the monastery of Melk summarizes it all: “But we see now through a glass darkly, and the truth, before it is revealed to all, face to face, we see in fragments (alas, how illegible) in the error of the world, so we must spell out its faithful signals even when they seem obscure to us and as if amalgamated with a will wholly bent on evil.”⁵⁸ Signs can be called the semiotics of the arts;⁵⁹ signs signify some-“thing.” Whether the some-“thing” is a concrete object or the product of impression or imagination, a piece of art refers, in one way or another, to an “idea” as related

 Cf. Eco, U., The Name of the Rose (London: Secker & Warburg, 1980). Eco, U., On Beauty (London: Secker & Warburg, 2004).  In the book Wie Kunst die Welt erschuf, Nigel Spivey asserts that art is not merely the ability to craft (Handwerkliches Können); not merely the endeavour to beautify. Cf. Spivey, N., Wie Kunst die Welt erschuf (Stuttgart: BBC Books, 2006), 14. Art emerges from the dynamics between human’s creative ability and imagination/fantasy. The explosion of creativity in art is a mode of signifying life. Cf. ibid. 24.  Eco, U., The Name of the Rose (London: Secker & Warburg, 1980), 11.  Hess-Lüttich, W. B. und Rellstab, D., “Zeichen/Semiotik der Künste,” in Ästhetische Grundbegriffe. Band 7, hg.v. Barck, K. et al. (Stuttgart/Weimar: Verlag J. B. Metzler, 2010), 247– 283, here 247.

Homo Aestheticus within the Framework of Inhabitational Theology

101

to context, form and content.⁶⁰ In this respect, one should say that Plato was perhaps correct when he argued that imagining is related to a form that refers to an idea which expresses the quest for truth.⁶¹

Aesthetics and the Poetic Question One can walk through life like a “wise fool,” leaving behind signs which function as poetic images to be interpreted: ut pictura poesis ⁶² (life as a poetic image). Well, then one will indeed die as a “saint” and “angel.” According to Thomas Aquinas, integrity (integritas), harmony (consonanta) and clarity (claritas) can be described as the principles of beauty. They can also be interpreted as wholeness, proportion and luminosity.⁶³ The poetic question establishes a kind of “iconic” relationship between the viewer and the object. By means of imagination, a kind of aesthetic correspondence is established. Within these dynamics, aesthetics can be described as the attempt to move images into the realm of imagination.⁶⁴ Pictura poesis indicates that life is more than reasoning and seeing; life is poetic imaging; ⁶⁵ a silent poem to be interpreted. Applicable in this regard is

 Belton, R. et al., World Art. The Essential Illustrated History (London: Flame Tree Publishing, 2006), 11– 13.  The urge to signify “the more,” the yearning for “spirituality” beyond the limitations of reason and logic, was well articulated by surrealism in the twenties of the previous century. Rookmaker pointed out that the upcoming of surrealism in the early twenties is an indication of a revolt against the structure of reason. “Their aim was a liberation of life, in every aspect, to free man from this strange world that holds him in a thousand ways; on the basis of Freudianism they wanted to liberate man from convention, culture and society. The third issue of La Révolution Surréaliste said: ‘Ideas, logic, order, Truth (with a capital T), Reason, all this is given to the nothingness of Death. You do not know how far the hatred we have against logic can lead us.’” Cf. Rookmaker, H. R., Modern Art and the Death of a Culture (London: Inter-Varity Press, 1973), 144.  The formula of Horace, in Huyghe, R., “Art Forms and Society,” in Larousse Encyclopedia of Byzantine and Medieval Art. Art and Mankind, ed. Huyge, R. (London: Hamlyn, 1981).  Skwaran, K. M., “Integritas, Consonanta e Claritas. Reflections on Selected Sculptures and ‘Drawings with Colour,’” in Willem Strydom (Stellenbosch: Rupert Museum, 2012), 3 – 15, here 3.  cf. Botha, A., Paul Emsley. US Woordfees/Wordfest Artist 2012. Retrospective Exhibition (Stellenbosch: Sasol Art Gallery, 2012), 5 – 9.  The poetics of life is about the quest for spirituality. In her book Image and Spirit Karen Stone describes art as a spiritual voice, as a process of imaging. “Art at its best makes concrete what language and especially religious language cannot: that intangible, private or communal moment when we encounter being.” Art is about the poetics of life; it is a spiritual endeavour prob-

102

Daniel Louw

the Ciceronian formula: poema loquens pictura, pictura tacitum poema (poetry is a spoken painting; painting is a silent poem).⁶⁶ The Greek Polyclitus and the school of the Pythagoreans⁶⁷ called a piece of art the attempt to express perfect interrelatedness of different components to one another; it wants to explain how the different parts are related to the whole. Aesthetics is therefore involved in the human attempt to express a kind of order (relationship) (truth) despite the chaotic appearances of threatening phenomena. Aesthetics therefore points in the direction of healing and well-being. Even if a piece of art is called “ugly,”⁶⁸ disturbing, or incomprehensibly abstract, art is “therapeutic,” public and iconic; there is no private work⁶⁹ or non-spiritual artistic piece.⁷⁰

ing into the depth dimension of being; “… that is, the ontological, the essence of experience beneath and beyond the surface appearance of things.” Stone, K., Image and Spirit. Finding Meaning in Visual Art (Minneapolis: Augsburg Books, 2003), 11.  “Art Forms and Society,” in Larousse Encyclopedia of Byzantine and Medieval Art. Art and Mankind, ed. Huyge, R. (London: Hamlyn, 1981), 20.  Hess-Lüttich, W. B. und Rellstab, D., “Zeichen/Semiotik der Künste,” in Ästhetische Grundbegriffe. Band 7, hg.v. Barck, K. et al. (Stuttgart/Weimar: Verlag J. B. Metzler, 2010), 247– 283, here 247.  In his Les Demoiselles d’Avignon, Picasso reveals a kind of barbaric destructiveness that horrified his friends and the art society: “… five horrifying women, prostitutes who repel rather than attract and whose faces are primitive masks that challenge not only society but humanity.” (Huffington, A. S., Picasso. Creator and Destroyer (New York: Simon and Schuster, 1988), 93). In an interview in Die Burger, the South African sculptor Dylan Lewis referred to this intra-psychic transcendence as an “inner wilderness.” La Vita, M., “Die donker in ons almal,” Die Burger, 20th April 2012, 13.  Hess-Lüttich, W. B. und Rellstab, D., “Zeichen/Semiotik der Künste,” in Ästhetische Grundbegriffe. Band 7, hg.v. Barck, K. et al. (Stuttgart/Weimar: Verlag J. B. Metzler, 2010), 247– 283, here 270.  Pablo Picasso said: “There is no abstract art. You must always start with something. Afterwards you can remove all traces of reality. There’s no danger then, anyway, because the idea of the object will have left an indelible mark.” (In Barr, A. H., Picasso. Fifty Years of his Art. (London: Secker & Warburg, 1975), 273). This “mark” can be called an aesthetic sign to be deciphered in the human quest for meaning and truth. Truth and meaning are intertwined with one another within processes of signification. See also Picasso, P., Picasso. Über Kunst. Aus Gesprächen zwischen Picasso und seinen Freunden. Ausgewählt von Daniel Keel. Mit sieben Zeichnungen des Meisters (Zürich: Diogenes Verlag AG Zürich, 1988).

Homo Aestheticus within the Framework of Inhabitational Theology

103

The Mediation Function of Aesthetics within the Quest for Some-“Thing” (eidos) Matzker Reiner relates aesthetics⁷¹ to the act of mediation within the tension between subject (impression and interpretation) and object, or the implicit idea as related to an object or something perceived and observed. To mediate is always a sign for something.⁷² Mediation operates within the connections between form (eidos, essence, meaning) and matter (hýle, ontic dimension). The projection of what is observed and seen implies, in the act of mediation and representation, virtuosity: skill, competence and know-how; i. e. artistic proficiency. The mediatory function of a medium is to communicate, to inform, to disclose, and to make something knowable. Aesthetics becomes an instrument (medium), an image (means) about some-thing (content). It transcends its own limitations in the direction of signification. In this regard, aesthetics symbolizes (from the Greek symbálein = to link two halves) and refers to meaning.⁷³ Aesthetics then expands the interpretation horizon of human beings; it creates a grammar of mediation. For Plato, the mediation points in the direction of a copy of a kind of original image or existing idea. For Aristotle, the mediation is in itself a process of signifying, in the sense that it functions as a memory (Anamnese) to reality.⁷⁴ The important point is that in aesthetics, there is a constant interplay between reality, image and significance, also in the sense that through mediation, aesthetics becomes the attempt to represent some-“thing.” A human being, therefore, as homo aestheticus, is not merely a some-“thing.” A human being is a some-body ⁷⁵ mediating the aesthetics of God, the creative Artist of life, re-

 According to Jochen Schulte-Susse, aesthetics should be linked to theory on perspective (perspectivism). The theory of perspective is about the question of how to resemble a three-dimensional object on a two-dimensional surface, or how to represent a three-dimensional object via a material form or sculpture so that the representation and image of the object, the idea within the object, corresponds with the proportions of the immediacy of the act of seeing, feeling and experiencing. In terms of Jacob Boehm’s theory on aesthetics, aesthetics links with the intention and value assessment of the subject in relationship with the viewed or observed object. cf. Schulte-Susse, J., “Perspektive/Perspektivismus, “ in Ästhetische Grundbegriffe. Band 7, hg.v. Barck, K. et al. (Stuttgart/Weimar: Verlag J. B. Metzler, 2010), 758 – 778.  Cf. Matzker, R., Ästhetik der Medialität. Zur Vermittlung von künstlerischen Welten und ästhetischen Theorien (Reinbek bei Hamburg: Rowohlt Taschenbuch Verlag, 2008), 10.  Ibid.  Ibid., 11– 12.  “The body is more than a commodious instrument that I could do without: my body is myself, the man who I am.” Sarano, J., The Meaning of the Body (Philadelphia: Westminister, 1960), 49.

104

Daniel Louw

demption and grace. My body is a sign; it reflects the eidos, the essence and identity of being, the beauty of life and the character of the human soul.

Human Embodiment As the Aesthetics of the Human Soul The portrayal of the divine in terms of a human figure was always a disputable issue in orthodox theology. Michelangelo made a kind of “breakthrough” in the sense that he viewed the perfect human figure as a representation of God (divine embodiment) or Christ, not as a “graven image” to be worshipped (idolatry), but as a depiction of the beauty of God (God’s love). This divine beauty, as embodied in the human figure, is for Michelangelo the most poignant description of the essence of spirituality and the aesthetics of the human soul.⁷⁶ Michelangelo was quite aware of the fact that “ensouled embodiment” is never static and detached from the reality of life and human suffering. Our being human is always exposed to disfigurement and deformation. The movement and proportions of the human body are always framed by torment and suffering.

 From Socrates Michelangelo learned that the purpose of painting was to present the human soul, the life of human souls, as an expression of the very internal being of humans. According to Néret, Michelangelo was only interested in the people he painted due to the fact that perfect bodies were the carriers and containers of the idea of eternity. cf. Néret, G., Michelangelo 1475 – 1564 (Hong Kong: Taschen, 2006), 32.

Homo Aestheticus within the Framework of Inhabitational Theology

105

Michelangelo: The rhythm of the perfect human body as indication of the movements of the human soul.⁷⁷ The meaning of the Last Judgment resides not in the naked bodies,⁷⁸ but “the ship wreck of entire tormented and suffering humanity … anxiously awaiting the fulfilment of the promise that in the presence of Christ the Judge and Redeemer the righteous will rise from the dead at the end of time.”⁷⁹ Schoeman, in his book on Michelangelo Buonarroti,⁸⁰ refers to the fact that in his reflection on life and its purpose, it was all about the attempt at how to bridge the gap between God and human beings by means of the aesthetics of beauty, the expression of love, and the imaging of art. The beauty of the cosmic body within its imperfect earthly realm, as well as the attempt to depict its beautiful rhythm in painting and sculpturing, served for him as a vehicle to glorify God. For Michelangelo, imaging in art is iconic because it is helping him to approach the perfect beauty of God.⁸¹ To portray the naked human body is not pornography;⁸² to capture human embodiment is to capture the ensoulment of life and the aesthetics of God.

 Online: http://www.google.co.za/imgres?imgurl=http://www.lib-art.com/imgpainting/4/9/ 14294-male-nude-michelangelo-buonarroti.jpg&imgrefurl=http://www.lib-art.com/imgpainting/ 4/9/&usg=___olOshIWHVCeI-KaflL47uFUg5E=&h=1177&w=750&sz=105&hl=en&start=9&zoom= 1&tbnid=AUVF59hBZE75rM:&tbnh=150&tbnw=96&ei=mpuAT_n3Csz3mAX75fjZBw&prev=/ search%3Fq%3DMichelangelo%2Bdrawings%2Bmale%2Bnude%26 hl%3Den%26sa%3DN% 26biw%3D983 %26bih%3D440 %26gbv%3D2 %26tbm%3Disch&itbs=1. Accessed: 06/04/2012.  During Pius V’s pontificate, the Congregation of the Council of Trent decided, on 11th January 1564, to have the private parts covered. The most pornographic decision in the history of Christian spirituality! Pope Paul IV therefore summoned the House of Carafa Daniele da Volterra to cover the genitals. The artist who did the covering was given the name “Braghettone,” meaning “trouser painter.” Cf. Néret, G., Michelangelo 1475 – 1564 (Hong Kong: Taschen, 2006), 78.  Vecchi in Michelangelo 1475 – 1564, ed. Paris, Y., trans. Sophie Leighton (Bath: Parragon, 2009): 175.  Cf. Schoeman, K., Titaan. Roman oor die lewe van Michelangelo Buonarroti (Kaapstad: Human & Rousseau, 2009), 555.  Ibid., 559.  Within Greek art, the naked human body and its perfect symmetry equals beauty and should be assessed as a piece of art. Spivey refers to the canonization of human embodiment in art by Polyclitus. For Polyclitus, the human body is, from an aesthetic point of view, perfect, due to the tension between symmetry, balance and harmony. The naked human body therefore reflects dynamics, balance and harmony (ensouled beauty), not pornography. Cf. Spivey, N., Wie Kunst die Welt erschuf (Stuttgart: BBC Books, 2006), 75. Pornography is derived from two Greek words, pornay and graphay. cf. Melton, J. G. et al., The Churches Speak on Pornography (Detroit: Gale Research Inc., 1989), 68. Pornay is derived from peraymi which means “to sell,” usually in reference to a slave or prostitute for hire. Graphay re-

106

Daniel Louw

The advantage of the Michelangelo perspective on the aesthetics of human embodiment is that it introduces a paradigm shift in anthropology from the hedonistic perspective of promiscuity to the aesthetic perspective of beauty; from the performance of sexuality to the enjoyment of sexuality. In fact, the human body and the genitals are not designed to destroy and to ruin, but to heal, to beautify and to console, to comfort; to bestow compassion in life. Meaning is related to the value of human life as enfleshed in the corporeality of the human body. Human embodiment is part and parcel of identity and dignity and cannot be excluded from divine grace: the eschatological perspective.

Eschatology: Habitus and the Theological Framework of Homo Aestheticus As already said, in the debate on the interplay between human dignity and human rights, the main starting point for theological reflection is mostly creation and the notion of the image of God. ⁸³ What it means to be truly human is closely connected to the fact that human beings live in the presence of God and are created in the image of God: “The image of God is human rights in all their relationships in life.”⁸⁴ “Thus in God’s liberating and redeeming action the original destiny of human beings is both experienced and fulfilled. In the ‘image of God’ concept, the divine claim upon human beings is expressed.”⁸⁵

fers to that which is written, inscribed, or pictured. “Pornography” then literally means to picture or describe prostitutes, with the connotation of an unequal slave/master relationship. Pornography refers very specifically to sexual exploitation and the dehumanization of sex so that human beings are treated as things or commodities. cf. Court, J. H., “Pornography,” in Dictionary of Pastoral Care and Counseling, ed. Hunter, R. J. (Nashville: Abingdon, 1990), 929 – 930.  “A closer look at the Jewish-Christian creation story and the statement in Gen. 1:26 f. about men and women being in the image of God shows that this formulation contains a notion widespread throughout the ancient Near East, namely, the notion of the effective representation of a person in an image: originally more in a statue, a relief, a stele.” Ammicht-Quinn, R., “Whose Dignity Is Inviolable? Human Beings, Machines and the Discourse of Dignity,” in The Discourse of Human Dignity, ed. Ammicht-Quinn, R., Junker-Kelly, M. and Tamez, E. (London: SCM Press, 2003), 34– 45, here 41.  Moltmann, J., On Human Dignity. Political Theology and Ethics (London: SCM Press, 1984), 83.  Ibid., 22. Huber refers to the Italian humanism of the 15th century, which built the notion of human dignity upon the concept of humans created in the image of God. cf. Huber, W., Violence. The Unrelenting Assault on Human Dignity (Minneapolis: Fortress Press, 1996), 117.

Homo Aestheticus within the Framework of Inhabitational Theology

107

Our point of departure is not the creation paradigm but the re-creational paradigm of eschatological thinking. Human dignity is promised to human beings by “God’s justifying grace.”⁸⁶ Eschatology views human beings from the perspective of who we already are in Christ. Our identity is determined by salvation and grace. We are accepted unconditionally for who we are. It is not what we do that is fundamental for the quality of ethos, but who we are. The indicative of salvation determines the imperative, which emanates from the eschatological character of salvation. “The imperative does not appeal to Christian’s good will or ability, but recalls what they have already received in baptism: freedom and a new Lord.”⁸⁷ What is therefore required is not that we do something, but that we be something (some-body).⁸⁸ The crucial point is the transformation and metanoia ⁸⁹ of the individual (transformation of stance, conduct and orientation, the telos of life) in terms of intention, motivation and goal. Thus Schrage’s conclusion that Jesus’ ethics was an ethics of intention. ⁹⁰ The salvific nature of the kingdom of God determines our ontological stance in both life and death. The character of the kingdom determines human conduct.⁹¹ This character of the kingdom can be captured by the theological notion of eschatology. Because of eschatology, the will of God cannot be deduced from any universally recognized ontological order as in the case of the so-called ethics of natural law. The status quo cannot be preserved as in the case of the doctrine of creation in ethics. God’s will is enacted in the eschatological act of salvation.⁹² The important point to grasp in an eschatological approach is that human conduct (habitus) is a consequence, not a condition, of parousia. Within the coming of God’s kingdom, this eschatological stance and understanding of consequential pneumatological action is the impetus for meaning.⁹³ When we don’t

 Ibid., 119.  Schrage, W., The Ethics of the New Testament (Philadelphia: Fortress Press, 1988), 176.  Ibid., 43.  Metanoia in the Greek is not to be understood in a purely intellectual sense. “It means not just a change of mind about something but also a change of attitude, of intention, of will, if not a total transformation of one’s conduct and orientation.” Ibid., 41– 42.  Ibid., 43.  Ibid., 37.  “In this sense Jesus’ ethics is a direct consequence of his eschatological message of the kingdom and the mercy of God. The imminent kingdom of God motivates people to act in a way appropriate to this kingdom.” ibid., 37– 38.  Schrage argues that, for Jesus, ethics is a consequence of eschatology in the sense that it is the only reasonable response to the kingdom of God already at hand in Jesus. Cf. ibid., 28 – 30.

108

Daniel Louw

cooperate and embody this eschatological and pneumatological realm, the indicative of salvation becomes judgement. Ethics is a consequence of eschatology and not a precondition. In this way, an eschatological approach undermines perfectionism and legalism. What is most needed is wisdom (sapientia) in order to beautify human life; the aesthetics of unconditional love. “Presence embodies grace.”⁹⁴ Within a pneumatological paradigm, the human being is not assessed in terms of an opportunistic approach, which implies that all relationships are fine when they only embody God’s presence through empathetic responses. In an opportunistic approach, the focal point is merely individual need satisfaction and the maintenance of basic human rights. Nor are humans assessed in terms of a pessimistic approach, which implies that human beings are merely sinners and doomed to failure. In a pneumatological approach, human beings are assessed realistically. A realistic approach in spirituality means that as Christians, we are already new beings in Christ. In Christ, humans are endowed with the fruits of the Spirit (Gal. 6:22– 26). Human beings in Christ are “charismatic human beings.”⁹⁵ The reality of the fruit of the Spirit implies a pneumatological ontology: one is (eschatological speaking) ⁹⁶ therefore love. From a pneumatological point of view, love – as in the case of all the fruit of the Spirit – is now a being function and aesthetic category. “Do you not know that your body is a temple of the Holy Spirit, who is in you, whom you have received from God?” (1 Cor. 6:19). Eschatological aesthetics provides the driving and motivational factor for human actions. Eschatology and its connection to the theological notion of grace provide the spiritual, even psychic, energy for meaningful living.

 Empathy as an emotional mode of incarnating the love of God becomes the norm for the quality of the pastoral intervention. “Pastoral counselling across culture is rooted in an incarnational theology that is truly present to others and a dialogical theology that is open to others in agape.” Augsburger, David W., Pastoral Counseling across Cultures (Philadelphia: Westminister, 1986), 36.  Charisma is not a human potential. It points to the work of the Spirit. Cf. Schrage, W., The Ethics of the New Testamen (Philadelphia: Fortress Press, 1988), 179.  Ashley and O’Rourke also opt for the eschatological aspect of ethics: “This is why we have opted for a teleological, goal-directed, means-ends ethics.” Ashley, B. and O’Rourke, K. D., Ethics of Health Care (Washington: Georgetown University Press, 1994), 196.

Homo Aestheticus within the Framework of Inhabitational Theology

109

Towards an Aesthetic Taxonomy of Human Life: Dignity and Meaning It is difficult to detect what is meant by meaning. The concept can refer to destiny and a sense of purposefulness. The emphasis is then more on goal-setting and the dominating paradigms that determine vocation in life and on overarching life-views or philosophies of life. The concept can also refer to the quality of human life and a sense of value within the quest for justice, freedom and equality. The emphasis is then more on the notion of human dignity and the quest for personal acknowledgement and to be treated in a humane way without the labels of discrimination and stigmatization. Meaning is then also related to ethics and moral issues. Within the current emphasis on the democratization of life, meaning is closely connected to human rights. Meaning can also refer to functionality. Within a pragmatic approach to life, meaning is then an indication of role fulfilment, need-satisfaction and the realization of expectations. Another option is to view meaning as an existential issue. Meaning is closely related to identity and refers to the quality of being functions. One can conclude and say that meaning refers to three existential endeavours: (a) The quality of choices in life and the level of informed decision-making. It is linked to the basic presupposition of the undergirding argument in this chapter: respondeo ergo sum. ⁹⁷ (b) Meaning as a hermeneutical endeavour. It points to an interpretation of life in terms of an understanding of ethos. With ethos is then meant a stance in life which presents a specific paradigm, belief system and philosophy in life. It correlates with an understanding of a sense of significance – significance as a hermeneutical endeavour: to understand life in itself as a symbolic framework of ultimate meaning: the spiritual realm of calling. Calling then presupposes an understanding of the network of life. It operates with the question, not, what is the meaning of life for me, but, what meaning can I give to life? The question is not: why me? But: for what purpose? For what purpose (ethos) is life designed? For example: a toothbrush is designed to brush one’s teeth and not to

 To illustrate that our search for meaning and the fostering of a spiritual identity can be linked to the quality of choices within painful conditions of human suffering, the logotherapy of Viktor Frankl could serve as an example. In his book Man’s Search for Meaning, see Frankl, V. Waarom lewe ek. Hulde aan die hoop. Bygewerkte teks deur Daniël J. Louw (Tygervallei: Naledi, 2007).

110

Daniel Louw

comb one’s hair. A pencil is designed for writing, not to brush your teeth. When an object is used against its basic “nature” (design=destiny), one abuses it. The object in itself becomes non-sense. Meaning then reflects the quality of habitus as related to ethos. In Christian spirituality, ethos is determined by what Gerhardson⁹⁸ calls a theonomous approach to life. (c) Meaning presupposes the interplay of values and virtues. The connection between values and identity and their influence on meaning play an important role in the design of an anthropological model for pastoral care. The relation between values,⁹⁹ meaning and faith has a decisive influence on the development

 The Bible’s ethos is neither autonomous (people can create adequate norms for themselves in order to serve egotistic purposes), nor heteronomous (imposed from without by an arbitrary, foreign will). According to biblical faith, the right norms for human life are theonomous. In other words, they emanate from an understanding of the will of God within a vivid covenantal encounter with this God. In this encounter, humans start to understand the will of God not in terms of fixed schemata, but in terms of what he did and how he acted on behalf of his people. Gerhardson, B., The Ethos of the Bible (Philadelphia: Fortress Press, 1981), 117.  Meissner summarizes the most important aspects of values and explains the important role of them in the establishment of identity and the development of maturity, cf. Meissner, W. W., Life and Faith: Psychological Perspectives on Religious Experience (Washington, D.C.: Georgetown University Press, 1987), 222. – Values are intra-psychic and often part of the non-observable part of a person’s existential orientation within a certain social milieu. They may be introspected and experienced. – Values provide certainty, security, durability and permanence to human behaviour. Values are durable and form a more or less permanent aspect of a person’s psychic composition. – Values are intentional structures. Values guide one and can be formulated as concepts which promote purposeful behaviour. Furthermore, values are concepts and ideas and can, therefore, be verbalized and rationalized. – Values are explicit or implicit. Sometimes they are partly conscious, but they could also be altogether sub-conscious. Often values operate on a more pre-conscious level. – Values are action-oriented. Values often play a role in decision-making and offer a framework within which actions take place. – Values are goal-oriented. “This telic dimension of the value-system has a channelling effect insofar as it organizes or tends to organize the various drive-derivative aspects of personality and directs them toward specific goals.” ibid., 224. – Values are linked to the biological needs of an organism. Needs concerning sexuality and love play a huge role in the shaping of values. Although the interplay between values and biological needs is tricky, values are nevertheless derived biologically. – Values are motivational. They channel psychic energy and direct behaviour. – Values are selective and decisional. They are subject to preference behaviour. This selective nature of values means that personal decision plays an important role in the formation of values.

Homo Aestheticus within the Framework of Inhabitational Theology

111

of spirituality and the beautification of life.¹⁰⁰ When values¹⁰¹ are internalized in being functions, they become virtues and describe the moral fibre of human identity and a meaningful life. It was Aristotle who underlined the importance of virtues for purposeful actions. To this end, he identified four basic virtues – prudence, justice, temperance and courage. It is indeed true that Aristotle’s and Homer’s understanding of arete differs from that of the New Testament. The New Testament not only promotes virtues such as faith, hope and love, but views humility (the moral for slaves) as one of the corner-stones in the formation of a Christian character.¹⁰² MacIntyre’s conclusion is of importance to the debate on the interplay of values and virtues.¹⁰³ In both the New Testament’s and Aristotle’s comprehension, despite differences, virtue¹⁰⁴ has this in common: it empowers a person to attain that characteristic essential for attaining meaning and significance (telos). – Virtues thus promote spiritual beauty, a genuinely integrated life-style, human dignity and constructive behaviour. “Let us say then … that virtues are in general beneficial characteristics, and ones that a human being needs to

– Values are normative. When values attain an obligatory character, thus having ethical implications, they attain a normative character which appeals to a person’s sense of responsibility and moral sensitivity.  David Augsburger perceives values as the core factor in motivating people: “Humans are evaluating beings. To exist is to choose.” Three aspects are generally included in an understanding of values: values are steering principles for directing human behaviour meaningfully; values imply cultural customs and habits; and thirdly, values imply internalized norms.” Augsburger, D. W., Pastoral Counseling across Cultures (Philadelphia: Westminister, 1986), 145.  Augsburger distinguishes between different types of values. Values are moral (what is just), ideal (what is admirable), aesthetic (what is beautiful), political (what is socially possible), affective (what is held dear). These values provide patterns for living, criteria for decision making, and units of measurement for evaluating oneself and others. Ibid., 148. According to Meissner, the association between values and needs means that values form a basic element of the desirable. “The desirable is what is felt or thought proper to want.” Meissner, W. W., Life and Faith: Psychological Perspectives on Religious Experience (Washington, D.C.: Georgetown University Press, 1987), 19.  MacIntyre, A., Der Verlust der Tugend. Zur moralische Krise der Gegenwart (Frankfurt: Campus Verlag, 1984), 245.  Ibid., 249.  Kreeft implies that virtue is necessary for the survival of civilization, while religion is necessary for the survival of virtue. Without moral excellence, right living, goodness, purity, chastity and effectiveness, our civilization is on the road to decline. Civilization needs justice, wisdom, courage and temperance. cf. Kreeft, P., Back to Virtue (San Francisco: Ignatius, 1986), 192.

112

Daniel Louw

have, for his own sake and that of his fellows.”¹⁰⁵ Positive values contribute towards growth into a virtuous and responsible person. They promote the development of identity and give rise to an integrated lifestyle and congruent behaviour. – Virtues¹⁰⁶ motivate people and bring about integrity. They represent enthusiasm for life (enthusiasm = literally, God within us) and become driving forces that enable one to establish and nurture life-giving and healthy relationships. This safeguards human dignity and brings about a human space of moral

 Foot, P., Virtues and Vices and Other Essays in Moral Philosophy (Berkeley: University of California Press, 1978), 3.  The following represent basic virtues in spirituality: Charity. In charity, one reaches out to the need of others. It enables one to curb self-centeredness and become engaged with the suffering of others. Prudence. Prudence is the virtue of discernment. It implies more than merely being careful. Prudence refers to soberness, it listens to experience, and it seeks counsel and envisions the future to anticipate difficulties, to consider consequences and to be open to the unexpected. Prudence is necessary in order to assess and to make wise decisions. Compassion. Compassion indicates sensitivity. It describes the virtue of unconditional love and the willingness to become involved. Part and parcel of compassion is empathy: the capacity to enter, understand and respond to another’s frame of reference. Patience. Patience describes a very realistic stance in life. It is the ability to wait in order to understand. It refers to the action of responsibility as an indication that one is prepared to make space for the rhythm of time, the limitations of life, the shortcomings of the other and the imperfection of creation. Trustworthiness/humility. Trustworthiness designates a combination between a sense of justice, an acceptance of accountability and an attitude of integrity. It encompasses the practice of honesty, fairness, truthfulness, loyalty, dependability and humility. Fidelity/faithfulness. Fidelity is an aspect of true friendship and a concern for the well-being of the other. It describes reliability and should be understood as closely associated with trustworthiness. Fortitude and courage. Fortitude is the virtue that ensures steadfastness in difficulties, and constancy despite discontinuity and the discrepancies of life. It is linked to courage as the virtue of boldness. It represents the inner strength of the soul and provides the strength to endure. It prompts people to right action and to behave with confidence in the face of possible risks and failure. Temperance. Temperance is traditionally described as the virtue that balances one’s concupiscent appetite. It refers to self-control, self-acceptance of limitations and to moderation. Integrity/sincerity. Trust and reliability are fundamental aspects of the identity of the caregiver. The ethical issue of confidentiality is at stake. It is therefore important that anybody involved in health care should have no vestige of pretence. Hypocrisy, deliberate deception and the pretence that you are one thing when you know you are something else, should be condemned. Embodiment and physical fitness. Self-acceptance implies the virtue of care for the body. This requires regular exercise, adequate sleep, effective stress management and appropriate nutrition. It acknowledges the link between soulfulness and a sense of physical well-being.

Homo Aestheticus within the Framework of Inhabitational Theology

113

soulfulness. Sound values are part and parcel of spiritual health; vice points in the direction of spiritual pathology and “moral illness.” – Virtues could be viewed as identity made visible in habitus and the quality of human relationships. Virtues display identity and reveal the character of our being functions; they exhibit the character of the human soul. (d) Both meaning and significance have to do with imagination and vision. One’s vision can brighten or darken life experiences. Vision, virtue and character add quality and flexibility to the scope of homo aestheticus. How we see the world influences our disposition. Related to vision is what Stanley Hauerwas¹⁰⁷ calls character: the moral determination of the self. Possessing character is even more basic than possessing individual virtues. Character describes the way in which beliefs, intentions and actions enable a person to acquire a moral history¹⁰⁸ which befits his/her nature as a self-determining being.¹⁰⁹

2 Identity: Character of the Human Soul (Being Function) The argument up to now has been that identity is a qualitative concept and connected to the value of inter- and intra-human communication. Human dignity and human identity should therefore be viewed as relational categories. Relation refers to intimacy and interconnectedness; it can, inter alia, within the framework of African spirituality, be linked to a kind of ubuntu-philosophy,¹¹⁰ namely that a human being is only humane through the relationship with another human being. Life can therefore only be healed if relationships are healed. It is a fact that the notion of relationality was often questioned as a reliable and valid approach. The critical point is then that human beings often act in relationships with enmity, hatred, anger and violence rather than with unconditional love. Our love is most of times conditional. The terse slogan that man is wolf to man (homo homini lupus) is, from a sociological point of view, indeed rel Cf. Crossin, J. W., What Are They saying about Virtue? (New York: Paulist, 1998), 42.  Cf. Louden, R. B., “On Some Vices of Virtue Ethics,” American Philosophical Quarterly 21, no.3 (1984), 227– 236, here 232.  Cf. Crossin, J. W., What Are They saying about Virtue? (New York: Paulist, 1998), 42.  What is envisaged in an African spirituality is harmony in interpersonal relationships: umuntu ungumuntu ngabantu/motho ke motho ka batho – approximately translated as: “a person is a person through other people.” Mtetwa, S., “African Spirituality in the Context of Modernity,” Bulletin for Contextual Theology in Southern Africa and Africa 3, no. 2 (1996), 21– 25, here 24.

114

Daniel Louw

evant. However, it will later be argued that from a pneumatological point of view, theology should revisit the slogan: “man is man to man” (homo homini homo); the term “human” then stands for the capability to have empathy, solidarity, and cooperation.¹¹¹ As a relational, systemic and process category, identity can be described as a process of identification consisting of the interplay between: – Intra-processes of self-understanding and self-evaluation (Who am I?). Intraspection as a critical assessment of ability, skill and level of responsibilities. – Inter-processes of role-function and feedback (How do I respond and perform? Mirroring oneself within relationships: level of acceptance or rejection). Inter-spection as a critical evaluation of the quality of interrelated networking. – External processes regarding norms, values, belief systems, world-views and paradigms (The factor of motivation with the questions: What keeps me going? And to what do I commit myself?) Trans-spection as a critical assessment of these norms, values and belief systems that determine responsible behavior and informed decision-making (normative framework of life). – Contextual issues embedded in culture (What shapes my life and influences the quality of decision-making/ life choices?). Interculturality: the mutual exchange between particularity within a specific context, customs and habits, and the global structures that determine life on a daily basis. At stake in our global society are, inter alia, technology, social media and virtual reality.

Integrity and Congruency “Identity,” as derived from the Latin idem, indicating the same, conveys the idea of continuity. Identity presumes a continuity between the human I and behaviour; hence, the importance of congruency. Congruency happens when the self is a true reflection and portrayal of the conduct and experiences of the human I.¹¹² Congruency is about remaining faithful to oneself, communicating authenticity and truth.¹¹³ It is about the question of to what extent one’s belief system correlates with actions, lifestyles and behaviour.

 Huber, W., Violence. The Unrelenting Assault on Human Dignity (Minneapolis: Fortress Press, 1996), 118.  Möller, A. T., Inleiding tot die persoonlikheidsielkunde (Durban: Butterworth, 1980), 94.  Heitink, G., Pastoraat als hulpverlening: Inleiding in de pastorale theologie en psychologie (Kampen: Kok, 1977), 69.

Homo Aestheticus within the Framework of Inhabitational Theology

115

Identity is a dynamic process. The development of identity, therefore, is not linear, but a zigzag movement between experiences of the human I and the response of the environment. The movement acts like a spiral in which experiences of life during each stage of human development play a decisive role. The factors of discontinuity and continuity as well as acceptance and rejection will determine the quality of the identification, and therefore of identity. The level of congruency will create a sense of integrity depending on the norms and values internalized.

Identity and Vocation: The Principle of Responsibility The answer to the question “Who am I?” depends on the quality of the human reaction, and on the degree and quality of human responsibility. Our basic point of departure is therefore the core principle that qualifies ethos (attitude and aptitude) in human behaviour: respondeo ergo sum. In a theological anthropology, “identity” means that people discover that God calls them to respond to their destiny: to love God and their fellow human beings. People should therefore display the quality of their responsibility and the genuineness and sincerity of their obedience to God in the way that they love. The principle of responsibility, which leads in turn to self-acceptance, presupposes awareness. People within a specific stage of development need to be aware that they should display real insight in the specific claim made on their personal functions during this stage. Their development and growth is determined by the extent to which they accept responsibility for the development of their potentials in life. A developmental model in a pastoral anthropology should always deal with the ethical principle of love, because it is an important director in the process of disclosing and discovering inner potentials.

Identity as Psycho-Spiritual Growth: a Developmental Approach A “psycho-spiritual identity” means a certain reorganization and restructuring of psychic functions in the light of ultimate values and norms. A psycho-spirituality even describes a new form of commitment, devotion and faithfulness.

116

Daniel Louw

Erik Erikson contends that people develop according to an inherent scheme. His growth model¹¹⁴ is linked to development in psychoanalysis and ego psychology. He follows Marie Jahoda’s definition of a healthy personality: “A healthy personality actively masters his environment, shows a certain unity of personality, and is able to perceive the world and himself correctly.”¹¹⁵ Erikson further develops his model from a developmental perspective: how does a healthy personality grow or accrue from the successive stages of increasing capacity to master life’s outer and inner challenges? Each successive step of the development of identity implies a potential crisis because it requires a radical change in perspective.¹¹⁶ He views crisis in a devel-

 Erikson links the question of human identity to an epigenetic principle. “Somewhat generalized, this principle states that anything that grows has a ground plan, and that out of this ground plan the parts arise, each part having its time of special ascendancy, until all parts have arisen to form a functioning whole.” Erikson, E. H., Identity and the Life Cycle: Psychological Issues, vol. 1, no.1 (New York: International University Press, 1959), 52. Erikson views his diagram as a sequence of stages and a gradual development of components. In other words, the diagram formalizes a progression through time of a differentiation of parts. The implication of such a developmental model of identity is that each item of the healthy personality is systemically related to all others. cf. Erikson, E. H., Identity. Youth and Crisis (London: Faber & Faber, 2 1974), 93.  Erikson, E. H., Identity and the Life Cycle: Psychological Issues, vol. 1, no.1 (New York: International University Press, 1959), 51.  Despite the deterministic undertone in Erikson’s epigenetic model, the value of his approach resides in its insight into the dynamics of personal identity. Against the background of existing ambiguities, he describes the development of a healthy personality in terms of a life cycle compiled of different stages. Erikson, E. H., Identity and the Life Cycle: Psychological Issues, vol. 1, no.1 (New York: International University Press, 1959), 55 – 100. Erikson, E. H., Identity. Youth and Crisis (London: Faber & Faber, 21974), 95 – 141. Stage 1: Infancy and the mutuality of recognition: Basic trust (confidence) versus basic mistrust. Stage 2: Early childhood and the will to be oneself: Autonomy versus shame and doubt. Stage 3: Childhood and the anticipation of roles (play age): Initiative versus guilt. Stage 4: School age and task identification: Industry versus inferiority. Stage 5: Adolescence: Identity versus identity diffusion. Stage 6: Beyond identity (young adult): Intimacy and dissociation/differentiation versus self-absorption. Stage 7: Adulthood: Generativity versus stagnation. Stage 8: Adulthood (mature age): Integrity versus despair; and disgust. Erikson describes stage 5 as the most crucial in the process of development and maturation. These describe a turning point in which, by the following seven dynamic bipolarities, all play a decisive role. cf. Erikson, E. H., Identity. Youth and Crisis (London: Faber & Faber, 21974), 94. Identity versus identity confusion; temporal perspective versus time confusion; self-certainty versus self-consciousness; role experimentation versus role fixation; apprenticeship versus work paralysis; sexual polarization versus bisexual confusion; leader- and followership versus

Homo Aestheticus within the Framework of Inhabitational Theology

117

opmental sense. “Crisis” does not connote the threat of catastrophe, but is seen as a turning point: a crucial period of increased vulnerability and heightened potential.¹¹⁷ Erikson’s exposition of the crisis of identity sheds light on the fact that identity should be viewed as a developmental process, the outcome of which includes: identification; anticipation and role-definition; self-assertion and autonomy; and self-acceptance within the mutuality of appreciation. We can conclude that identity as an indication of maturity and adulthood presupposes a process of maturation in which different polarities, indicating the critical challenges implied by human life, play a decisive role. Whether identity takes place and diffusion is overcome will determine the quality of adulthood: intimacy, generativity and integrity. Meaning is then interconnected to adulthood and maturity. In terms of Erikson’s understanding of the life cycle, fidelity is the cornerstone of identity and maturity. “Fidelity is the ability to sustain loyalties freely pledged in spite of the inevitable contradictions and confusions of value systems.”¹¹⁸ Meaning, dignity and identity – they all lead back to the most basic question in life: whether one lives an egocentric and selfish life of destructive self-maintenance, or an other-centred life of unconditional love. The discussion thus leads inevitably to the role of ethics in the discourse on dignity, meaning and the connection with the current quest for human rights.

authority confusion; and ideological commitment versus confusion of values. Within the dynamics of identity, the polarities are: task identification versus sense of futility; anticipation of roles versus role inhibition; will to be oneself versus self-doubt; and mutual recognition versus autistic isolation.  Cf. Erikson, E. H., Identity. Youth and Crisis (London: Faber & Faber, 21974), 96.  Cf. Erikson, E. H., Identity. Youth and Crisis (London: Faber & Faber, 21974), 28. See also Erikson, E. H., Youth: Change and Challenge (New York: Basic, 1963), 19; for the problem of identity confusion see ibid.,11. Of utmost importance for our discussion is the fact that Erikson links to each stage a set of virtues which can be viewed as qualities of the human ego. These qualities are part of the dynamic interplay between conscious and unconscious forces. Erikson mentions: hope, will, purpose, competence, fidelity, love, care and wisdom. The latter three indicate adulthood. Cf. Erikson, E. H., Identity. Youth and Crisis (London: Faber & Faber, 21974), 25.

118

Daniel Louw

3 Identity and Dignity within the Framework of Ethics: The Quest for Human Rights In order to answer and to discuss the link between dignity, meaning, identity and rights, the following definition and description of what is meant by a theological ethics ¹¹⁹ is applicable. Theological ethics¹²⁰ is a prescriptive science that focuses on human conduct and disposition (habitus) in the light of norms and values (the ought of human behaviour) in order to give direction (telos) and meaning to human life in the light of an understanding/interpretation of the will of God within daily relationships and concrete cultural contexts. As a prescriptive science it works with the imperative emanating from the indicative of life. With reference to responsible and informed decision-making (value judgments),¹²¹ the normative framework has got moral implications and describes, therefore, ethical guidelines for meaningful living and qualitative choices.¹²² When one is committed to these guidelines, the normative framework makes an appeal to human beings and become an obligation, thus the notion of deontology in ethics. By norms is meant the basic criteria that help one to understand the truth (essence) of being qualities, the meaning of life, driving forces (motives) and the destiny or telos of things. Due to its connectedness to goals, ethics entails a teleological dimension. Norms help one to identify assessment criteria in order to distinguish and differentiate between good and evil. Norms describe limitations and act as guidelines for decision-making and the making of responsible moral choices in order to direct human behaviour. When norms are accepted as regulative guidelines (principles)¹²³ with prescriptive status (the impera-

 Ethics entails more than a description of what is. Ethics is therefore not merely a descriptive science. Ethics is about the “ought” of human behaviour. It is fundamentally a prescriptive science and deals with morals and values.  “Ethics is a systematic, critical study concerned with the evaluation of human conduct.” (Crook, R., An Introduction to Christian ethics (Upper Saddle River, N. J.: Preston Hall Crook, 2 1995), 3).  Crook (21995,5) argues that the essence of ethics is the making of value judgments. Its nature is to be prescriptive rather than descriptive. It is to recommend a way of acting either for the achievement of desirable goals (teleological) or as a response to certain fundamental relationships (deontological).  It is one of the difficulties in Christian ethics that few problems are simple, clear-cut choices between right and wrong. Most problems that people face are highly complex (cf. Crook 21995, 9).  Ashley et al. see faith, love and hope as the criteria to classify and develop a set of ethical principles, specifically Christian, that can be applied to differentiate ethical and bioethical ques-

Homo Aestheticus within the Framework of Inhabitational Theology

119

tive), they become laws, prescribing duty and obligation (the deontological dimension of ethics).¹²⁴

Humanity and Human Rights in a Theological Ethics One could say that humanity and humanness refer to the character of our human freedom, i. e. our ability to take responsibility for life and to make responsible decisions that will enhance the quality of life. Humanity cannot be separated from moral decision-making. Animals do not make moral choices. Humanity refers to the fact that humans can say: “I.” Personhood indicates an ego with the potential of awareness (consciousness – subconsciousness). Within this ego there are several components: the cognitive component of the human mind and reflection; the affective component of emotions; the conative component of will power; the social component of relationships; the environmental dimension of culture; the ethical dimension of morals, virtues/vices, norms and values; and the spiritual dimension of meaning. Humanity is connected to the dynamics of dependence and independence, isolation and intimacy. Within this dynamics, the notion of power and the application of power have a decisive influence on the quality of our being human. This is the reason why humanness cannot be separated from political ideologies and philosophical systems. Humanity and future orientation play a decisive role in the character of anticipation. One can call this future orientation our awareness of prognostics (orientation in terms of what lies ahead) and quest for the ultimate. Humanity is indeed an ethical and moral issue. It refers to the ought and normative framework of life; humanity within a moral awareness that can be called the space of human rights.

tions. cf. Ashley, B. and O’Rourke, K. D., Ethics of Health Care (Washington: Georgetown University Press, 1994), 175.  Christian ethics must be differentiated from other models such as humanistic ethics and Marxist ethics. Humanistic models are often merely connected to the behaviouristic vision that human choice is more a matter of conditioning than decision-making. Human activity is then more reaction than response, in terms of morality (Crook 21995, 18 – 19). Morality is merely action in conformity with the patterns of conduct set by the social environment. Moral judgements are dependent on survival and struggle rather than on external values.

120

Daniel Louw

Human Rights From a sceptical point of view, human rights are regarded as a myth. Human rights are only established to maintain power (the position of the strong, the powerful, the important or wealthy people), or to safeguard the weak. From a social point of view, it can be argued that humans have rights to the degree that the rights are safeguarded, acknowledged, sanctioned and maintained by society (external locus of control). Human rights are therefore not an intrinsic value (internal locus of control). From a democratic point of view, human rights are related to individual choices and the notion of freedom. At stake in human rights are the issues of justice and dignity. From a spiritual and religious perspective, it can be argued that human beings have eternal value or that they are created in the image of God. Humans cannot do what they like. God is in control of life and therefore places limitations on our human achievements. What then are the basic reasons for human rights in health care ethics from a Christian spiritual point of view? – The first reason is an ontic one. Humans have rights because they are supposed to reflect and represent their understanding of God in such a way that the mode and intention of God towards our being human and the whole of creation are enfleshed and embodied. Our “creatureliness” becomes a vehicle for the actions and involvement of God to enhance the quality of life. – The second reason is an anthropological one. Humans have rights because they are called (vocation) to exercise unconditional love. For that matter, our fellow human being becomes the face of God who is constantly challenging our intention to love God. – The third reason is a normative one. We live under the obligation of a call: to promote neighbourly love and to establish the kingdom of God. – The fourth reason is a communal one. Humans do not exist exclusively and separately from one another. Humanity presupposes the unity of the human species, irrespective of race, gender and culture. From the perspective of the body of Christ, humans are connected to one another within the corporate reality of mutual fellowship (koinonia). – The fifth reason resides in the uniqueness and irreplaceability of the human person. A human being is unique and irreplaceable due to salvation. Christ, in terms of his mediatory function, died for all in their place (the salvific dimension of grace).

Homo Aestheticus within the Framework of Inhabitational Theology

121

Qualitative Criteria for the Assessment of the Interplay: Human Dignity – Human Rights In order to assess and to make responsible decisions, the following criteria should be taken into consideration. Equality Humans should be treated equally. All people are equal and have equal value, although they are not the same and differ from one another. Equal treatment, however, does not entail the same treatment.¹²⁵ In terms of ethics, one should sometimes treat people differently, and not the same, in order to be fair. For example, disabled and disadvantaged people should be treated differently to privileged and advantaged or wealthy people. Equity In ethics, the principles of fairness are paramount. Fairness is related to impartiality with cognisance of the fact that all forms of decision-making are embedded in subjective, personal, social and cultural presuppositions. However, objectivity, although being a relative term, is the ideal. Merit Merit brings into play issues of worthiness and quality. They are connected to competence, ability, capability, fitness and appropriate qualification. Merit should also be linked to developmental issues such as age, education and stages of life. Human needs Human needs are indeed variables. They can range from physical, psychological and social to political, educational and economic needs. Needs are related to self-esteem, safety, acknowledgement, care and validation. Spiritual needs From a spiritual point of view the most basic needs are: Intimacy: the need to be accepted unconditionally without the fear of being rejected;

 In this regard, see the remark of Smedes, L. B., Mere Morality (Grand Rapids: Eerdmans, 1983), 37: “It seems right to treat crippled and deprived young people unequally in order to give them an equal opportunity.”

122

Daniel Louw

Freedom: the need to be free from guilt and to be forgiven and reconciled; Hope: the need not to be a victim of one’s past in terms of despair and depression. The quest for meaning in life and a constructive view of the future; Fulfilment of life competencies: the need to overcome existential frustration (anger) and to live with gratitude and joy; Support: the need for an appropriate support system in order to cope with helplessness and hopelessness. Justice: justice refers to the juridical dimension of life. Humans should be cared for in terms of codes of conduct and laws in order not to be delivered to the cruelty of other human beings. Justice safeguards life in terms of basic principles for human rights. Status, class, race, gender or descent cannot determine human rights. Human rights are further beautified and enhanced by solidarity, compassion, empathy, equal and fair treatment, as well as different virtues that reflect sincerity and integrity. Basic principles for human rights It is difficult to reduce human rights to a few categories. However, human rights deal with the following categories: The right to life Life in itself is not absolute. By life is meant the right to a safe, healthy and clean environment. Humans should have access to health care and to systems and structures that promote their livelihood and sustain human life under various conditions. The right to a humane living. This right includes issues of religious, personal, juridical, educational and economic freedom. It includes access to basic structures for the maintenance of personal, social and environmental health. The right to free association and expression. Humans should be allowed to live in communities and within structures of their choice. At stake are political structures, marriage relationships, family connections, social interaction, and sexual and recreational activities.

Homo Aestheticus within the Framework of Inhabitational Theology

123

4 Towards a Systemic Approach in Theory Formation: The Dynamic Interplay between Human Rights and Human Dignity To capture the gist of my argument, one can say that: – Dignity (dignitas) within a social paradigm (still mostly hierarchical) points to role function, status, position and authority. In this regard, acknowledgement, free from prejudice, discrimination and stigmatization, plays a decisive role. Dignity also points to different degrees and levels of need-satisfaction. – Dignity (dignitas) within an ethical paradigm points to equality, justice and rights within the quest for liberation – thus the important question about the quality of freedom and justice. – Dignity (dignitas) within an aesthetic paradigm points to meaning, telos (purposefulness/destiny/significance) and intimacy: the basic quest to care for the humanum. As an aesthetic category, dignity relates to care, nurture, comfort, empathy, interpathy, reconciliation and forgiveness; it is basically a category related to healing and human well-being. As a spiritual category, the aesthetics of dignity is dependent on the quality of intimacy: to be accepted unconditionally for who you are without the fear of rejection. Anxiety, the fear of rejection, isolation and existential loneliness, is the most basic threat to human dignity and human health. It is even more devastating than guilt and despair. Human dignity (care for the value of life) and identity (habitus: the respond-able and sensitive human I; ethos: a sacrificial stance in life) determine the quality of human rights (the normative framework of life within the communality of a spiritual humanism). In order to prevent human rights from becoming sheer political ideology or merely an abstract and even legalistic imperative within processes of democratization and liberation, human rights should be determined by human dignity. This emphasis on human dignity should rediscover the worth of our being human within the aesthetics of a suffering God. ¹²⁶

 In a theological aesthetics, beauty should be connected to the pathos of the crucifixion. On Christ’s suffering, see the remark of Garcia-Rivera, A., “On a New List of Aesthetics Categories,” in Theological Aesthetics after von Balthasar, ed. Bycgov, O. V. and Fodor, J. (Aldershot: Ashgate, 2008), 169 – 183, here 177: “This em-pathos, mediated by their own distinct accounts through the beauty of the crucifix, in turn becomes, second, syn-pathos – a plea for divine sympathy with their own suffering.”

124

Daniel Louw

Instead of the apathetic God of theistic doctrine, the pathetic God of Theopaschitic thinking relates actually to the bottom line of life, “below the sewer line,”¹²⁷ within the hell of the slums. The “ugliness” of derilictio beautifies life unconditionally, despite life under the sewer line. Spiritual aesthetics therefore determine the quality of human dignity and ethics. The aesthetics of life emanates from the eschatological proposition: in Christ, human beings are already a new creation (ontological status); this is our Christian spiritual identity. Due to our eschatological identity, being functions qualify knowing functions, doing functions and feeling functions. This new spiritual ontology is enfleshed and exhibited in the fruit of the Spirit. Pneumatology beautifies life by means of the charisma of the Spirit and the service (diakonia)¹²⁸ of the Church. Aesthetics can inspire human beings to transcend the harsh conditions of inhumane living. It is most interesting to read narratives of people who survived under harsh conditions of suffering. In many cases, the factor that has kept people, robbed of their human dignity, going, was not ethics but aesthetics. In his autobiography, Jürgen Moltmann comments as follows while referring to his concentration camp experience and the devastating, daily attempt to get rid of lice: “We were pushing a goods truck, and suddenly I stood in front of a blossoming cherry tree. I almost fainted with joy of it. After a long period of blindness without any interest, I saw colours again and sensed life in myself once more. Life began to blossom afresh.”¹²⁹ Paradigm shift For the connection between aesthetics and a Christian spiritual approach to meaning, a theological anthropology needs the following paradigm shift: from incarnation theology to inhabitation theology. The praxis-question in anthropology should eventually reside in pneumatology and not in Christology. For this paradigmatic shift, the theology of the Dutch theologian A. A. van Ruler is most relevant and should be revisited. Why? Within incarnation theology, the human being is nothing (homo peccator) and God is everything (sacrificial grace): Christ is mediator. Christology is about redemption. In inhabitational theology, man, the human being, is becoming “whole” (homo aestheticus) and therefore “everything” (humanum); human

 Zanotelli, A., “A Grace Freely Given,” in The Slums: A Challenge to Evangelization, ed. Francesco, P. and Abeledo Y. (Nairobi: Pauline Publications, 2002), 15.  For the interplay between diakonia and koinonia and the connection to the responsibilities, or “sacred obligation” within the context of ministry (works of love, nurturing, maturing and healing), see Collins, J. N., Diakonia. Re-interpreting the Ancient Sources (New York/Oxford: Oxford University Press, 1990), 258.  Moltmann 2008, 27.

Homo Aestheticus within the Framework of Inhabitational Theology

125

beings are not excluded in salvation (heil, sjalom), but totally incorporated¹³⁰ because the humanum is now determined by pneuma. In terms of pneumatology, Van Ruler points to the category of “theopoiesis”¹³¹. Theopoiesis means that the human will starts to correspond with the divine will according to the indwelling presence of the Spirit. The human person starts to become theonomous and therefore fully authentic and autonomous; i.e. it displays the charisma of the Spirit (the soulfulness of embodied humanism). To build in any concurrency between God and human beings is pagan idolatry¹³²; pneumatology rather creates a theological osmosis¹³³ between God and human beings. Sin is secondary; eschatological being is primary. In a Christological anthropology, the object of faith is salvation (heil= becoming whole); in a pneumatic anthropology, the object of salvation is the humanum.¹³⁴ A pneumatic anthropology describes spiritual wholeness (a spiritual humanism); it determines the quality of human dignity (charisma as pneuma-beauty) as well as the rights of man (aesthetic responsibility). With reference to a systems approach in anthropology, one can say that identity (characteristics), dignity (meaning and worth), ethos (habitus and pathos) and ethics (responsibility and human rights) describe an interconnected dynamics of networking relationships. This networking can be described as a hermeneutics of “soulful human being.” An aesthetic approach to identity and dignity presupposes the following paradigm shift: From psycho-autonomy (self-determination) to pneuma-relationality: the intimate space of unconditional love as framed by koinonia and diakonia. This spiritual dynamic networking can be depicted in the following diagram:

 Rebel, J., Pastoraat in pneumatologisch perspektief. Een theologisch verantwoording vanuit het denken van A. A van Ruler (Kok: Kampen, 1981), 209.  Ibid., 145.  Ibid., 99.  Van Ruler in ibid., 85.  Ibid., 140.

126

Daniel Louw

Networking of a Spiritual Humanism

Bibliography Albom, M. Tuesdays with Morrie. An Old Man, a Young Man, and Life’s Greatest Lesson, London: Warner Books, 2000. Ammicht-Quinn, R. “Whose Dignity Is Inviolable? Human Beings, Machines and the Discourse of Dignity.” In The Discourse of Human Dignity, edited by Ammicht-Quinn, R., Junker-Kelly, M. and Tamez, E., London: SCM Press, 2003, 34 – 45. Augsburger, David W. Pastoral Counseling across Cultures. Philadelphia: Westminister, 1986. Ashley, B. and O’Rourke, K. D., Ethics of Health Care. Washington: Georgetown University Press, 1994. Barr, A. H. Picasso. Fifty Years of his Art. London: Secker & Warburg, 1975. Belton, R. et al. World Art. The Essential Illustrated History. London: Flame Tree Publishing, 2006. Botha, A. Paul Emsley. US Woordfees/Wordfest Artist 2012. Retrospective Exhibition. Stellenbosch: Sasol Art Gallery, 2012. Browning, D. S. et al. From Culture Wars to Common Ground. Religion and the American Family Debate. Louisville: Westminister John Knox Press, 1997. Court, J. H. “Pornography.” In Dictionary of Pastoral Care and Counseling, edited by Hunter, R. J., Nashville: Abingdon, 1990, 920 – 930.

Homo Aestheticus within the Framework of Inhabitational Theology

127

Cox, H. W. The Secular City. London: SCM Press, 1965. Cox, H. W. The Feast of Fools. New York/London: Harper& Row, 1969. Collins, J. N. Diakonia. Re-interpreting the Ancient Sources. New York/Oxford: Oxford University Press, 1990. Crook, R. An Introduction to Christian Ethics. Upper Saddle River, N. J.: Preston Hall Crook, 2 1995. Crossin, J. W. What Are They saying about Virtue? New York: Paulist, 1998. Dissanyake, E. Homo Aestheticus: Where Art Comes from and Why. New York: Free Press, 1992. Drewermann, E. Die Spirale der Angst. Freiburg: Herder, 41991. Drewermann, E. Tiefenpsychologie und Exegesen, Band 2. Freiburg: Olten, 31992. Eco, U. The Name of the Rose. London: Secker & Warburg, 1980. Eco, U. On Beauty. London: Secker & Warburg, 2004. Elliot, G. Scenes of Clerical Life. Middlesex: Penguin Books, 1973. Erikson, E. H. Identity and the Life Cycle: Psychological Issues. Vol. 1, no.1. New York: International University Press, 1959. Erikson, E. H. Youth: Change and Challenge. New York: Basic, 1963. Erikson, E. H. Identity. Youth and Crisis. London: Faber & Faber, 21974. Fairley, E. “Theology and Practice Outside the Clerical Paradigm.” In Practical Theology, edited by Browning, D. S. San Francisco: Harper and Row, 1983. Fairley, E. Faith and Beauty. A Theological Aesthetic. Aldershot: Ashgate, 2001. Frankl, V. Waarom lewe ek. Hulde aan die hoop. Bygewerkte teks deur Daniël J. Louw. Tygervallei: Naledi, 2007. Feuerbach L., Das Wesen des Christentums. Leipzig: Verlag Philipp Reclam, 1904. Flory, R, W. and Miller. D. E. “The Embodied Spirituality of the Post Boomer Generations.” In A Sociology of Spirituality, edited by Flanagan, K. and Jupp, P. C., Aldershot: Ashgate, 2007, 201 – 218. Foot, P. Virtues and Vices and Other Essays in Moral Philosophy. Berkeley: University of California Press, 1978. Garcia-Rivera, A. “On a New List of Aesthetics Categories.” In Theological Aesthetics after von Balthasar, edited by Bycgov, O. V. and Fodor, J. Aldershot: Ashgate, 2008, 169 – 183. Gerhardson, B. The Ethos of the Bible. Philadelphia: Fortress Press, 1981. Giorgian, G. “Spirituality: From a Religious Concept to a Sociological Theory.” In A Sociology of Spirituality, edited by Flanagan, K. and Jupp, P. C., Aldershot: Ashgate, 2007, 161 – 180. Gräb, W. Lebensgeschichten, Lebensentwürfe, Sinndeutung. Eine Praktische Theologie gelebter Religion. Gütersloh: Gütersloher Verlagshaus, 2000. Gräb, W. Sinn fürs Unendliche. Religion in der Mediengesellschaft. Gütersloh: Chr. Kaiser/Gütersloher Verlagshaus, 2002. Gräb, W. Sinnfragen. Transformationen des religiösen in der modernen Kultur. Gütersloh: Chr. Kaiser/Gütersloher Verlagshaus, 2006. Hess-Lüttich, W. B. und Rellstab, D. “Zeichen/Semiotik der Künste.” In Ästhetische Grundbegriffe Band 7, herausgegeben von Barck, K. et al., 247 – 283. Stuttgart/Weimar: Verlag J. B. Metzler, 2010. Heitink, G. Pastoraat als hulpverlening: Inleiding in de pastorale theologie en psychologie. Kampen: Kok, 1977.

128

Daniel Louw

Huber, W. Violence. The Unrelenting Assault on Human Dignity. Minneapolis: Fortress Press, 1996. Huffington, A. S. Picasso. Creator and Destrouer. New York: Simon and Schuster, 1988. Huyghe, R. “Art Forms and Society.” In Larousse Encyclopedia of Byzantine and Medieval Art. Art and Mankind, edited by Huyge, R. London: Hamlyn, 1981. Jackson, T. P. “A House Divided Again: Sanctity vs. Dignity in the Induced Death Debate.” In Defense of Human Dignity. Essays for our Times, edited by Kraynak, R. P. and Tinder, G., Notre Dame, Indiana: University of Notre Dame Press, 2003, 139 – 163. Kraynak, R. P. “‘Made in the Image of God’: The Christian View of Human Dignity and Politial Order.” In Defense of Human Dignity. Essays for our Times, edited by Kraynak, R. P. and Tinder, G., Notre Dame, Indiana: University of Notre Dame Press, 2003, 81 – 118. Kreeft, P. Back to Virtue. San Francisco: Ignatius, 1986. Landmesser, C. und Bultmann, R. “Religion, Kultur und Existenz.” In Kompendium Religionstheorie, herausgegeben von Drehsen, V. et al., Göttingen: Vandenhoeck und Ruprecht, 2005, 120 – 134. La Vita, M. “Die donker in ons almal.” Die Burger, 20th April 2012, 13. Louden, R. B. “On Some Vices of Virtue Ethics.” American Philosophical Quarterly 21, no. 3 (1984), 227 – 236. MacIntyre, A. Der Verlust der Tugend. Zur moralischen Krise der Gegenwart. Frankfurt: Campus Verlag, 1984. Mangold, I. “Sex mit und ohne Macht.” Die Zeit 50 (2012), 77. Matzker, R. Ästhetik der Medialität. Zur Vermittlung von künstlerischen Welten und ästhetischen Theorien. Reinbek bei Hamburg: Rowohlt Taschenbuch Verlag, 2008. Meeks, M. D. “Introduction.” In Moltmann, J., On Being Human. ix – xiv. London: SCM Press, 1984. Meilaender, G. C. The Theory and Practice of Virtue. Notre Dame (Indiana): University of Notre Dame Press, 1984. Meilaender, G. C. Neither Beast Nor God. The Dignity of the Human Person. New York/London: New Atlantis Books, 2009. Meissner, W. W. Life and Faith: Psychological Perspectives on Religious Experience. Washington, D. C.: Georgetown University Press, 1987. Melton, J. G. et al. The Churches Speak on Pornography. Detroit: Gale Research Inc., 1989. Möller, A. T. Inleiding tot die persoonlikheidsielkunde. Durban: Butterworth, 1980. Moltmann, J. On Human Dignity. Political Theology and Ethics. London: SCM Press, 1984. Murphy, F. A., “Hans Urs von Balthasar: Beauty As Gateway to Love.” In Bycgov, O. V., Fodor, J., ed., Theological Aesthetics after von Balthasar, Aldershot: Ashgate, 2008, 5 – 17. Mtetwa, S. “African Spirituality in the Context of Modernity.” Bulletin for Contextual Theology in Southern Africa and Africa 3, no. 2 (1996), 21 – 25. Negt, O. “The Unrepeatable. Changes in the Cultural Concept of Dignity.” In The Discourse of Human Dignity, edited by Ammicht-Quinn, R., Junker-Kelly, M. and Tamez, E., London: SCM Press, 2003, 25 – 34. Néret, G. Michelangelo 1475 – 1564. Hong Kong: Taschen, 2006. Paris, Y. Michelangelo 1475 – 1564, trans. Sophie Leighton. Bath: Parragon, 2009. Pattison, G. “Is the Time Right for a Theological Aesthetics?” In Theological Aesthetics after von Balthasar, edited by Bycgov, O. V. and Fodor, J., Aldershot: Ashgate, 2008, 107 – 114.

Homo Aestheticus within the Framework of Inhabitational Theology

129

Picasso, P. Picasso. Über Kunst. Aus Gesprächen zwischen Picasso und seinen Freunden. Ausgewählt von Daniel Keel. Mit sieben Zeichnungen des Meisters. Zürich: Diogenes Verlag AG Zürich, 1988. Rawls J. “A Well-Ordered Society.” In Defense of Human Dignity. Essays for our Times, edited by Kraynak, R. P. and Tinder, G., Notre Dame, Indiana: University of Notre Dame Press, 2003, 193 – 206. Rebel, J. Pastoraat in pneumatologisch perspektief. Een theologisch verantwoording vanuit het denken van A. A van Ruler. Kok: Kampen, 1981. Rombach, H. Strukturanthropologie. “Der menschlich Mensch.” Freiburg/München: Verlag Karl Alber, 1987. Rookmaker, H. R. Modern Art and the Death of a Culture. London: Inter-Varity Press, 1973. Sarano, J. The Meaning of the Body. Philadelphia: Westminister, 1960. Schoeman, K. Titaan. Roman oor die lewe van Michelangelo Buonarroti. Kaapstad: Human & Rousseau, 2009. Schulte-Susse, J. “Perspektive/Perspektivismus.” In Ästhetische Grundbegriffe. Band 7, herausgegeben von Barck, K. et al., Stuttgart/Weimar: Verlag J. B. Metzler, 2010, 758 – 778. Schrage, W. The Ethics of the New Testament. Philadelphia: Fortress Press, 1988. Skwaran, K. M. “Integritas, Consonanta e Claritas. Reflections on Selected Sculptures and ‘Drawings with Colour.’” In Willem Strydom, Stellenbosch: Rupert Museum, 2012, 3 – 15. Stock, K. Grundlegung der protestantischen Tugendlehre. Gütersloh: Chr Kaiser, 1995. Smedes, L. B. Mere Morality. Grand Rapids: Eerdmans, 1983. Spivey, N. Wie Kunst die Welt erschuf. Stuttgart: BBC Books, 2006. Stone, K. Image and Spirit. Finding Meaning in Visual Art. Minneapolis: Augsburg Books, 2003. Valdier, P. “The Person Who Lacks Dignity.” In The Discourse of Human Dignity, edited by Ammicht-Quinn, R., Junker-Kelly, M. and Tamez, E., London: SCM Press, 2003, 49 – 56. Varga, I. and Simmel, G. “Religion and Spirituality.” In A Sociology of Spirituality, edited by Flanagan, K. and Jupp, P. C., Aldershot: Ashgate, 2007, 145 – 160. Witte, J. R. “Between Sanctity and Depravity: Human Dignity in Protestant Perspective.” In Defense of Human Dignity. Essays for our Times, edited by Kraynak, R. and Tinder, G., Notre Dame, Indiana: University of Notre Dame Press, 2003, 119 – 138. Zanotelli, A. “A Grace Freely Given.” In The Slums: A Challenge to Evangelization, edited by Francesco, P. and Abeledo Y. Nairobi: Pauline Publications, 2002.

Nico Koopman

Human dignity, Human Rights and Socio-Economic Exclusion? 1 Introduction

Billions of people all over the world experience socio-economic exclusion. This happens globally in both so-called developing and developed countries. This exclusion occurs with, and on, the continent of Africa more than with, and on, any other continent. And this phenomenon is present in post-apartheid South Africa as well. Stéphane Hessel and Edgar Morin¹ describe the global dimensions of exclusion and inequality. They state that globalization carries within it both the best and the worst that can come from human beings. At best, globalization paves the way for acknowledging, as never before, our global interdependence and our common fate, and it creates the possibility of a global homeland without negating the idea of individual homelands. At worst, globalization manifests itself as the uncontrolled, manipulative and destructive power of science and technology, of a global economy whose highest goal is the maximization of profit, of the proliferation of weapons of mass destruction and the destruction of the biosphere, and, especially in the early days of the 21st century, of the tyranny of a financial capitalism which knows no boundaries and which subjects countries and nations to its speculations, and of the return of xenophobia, as well as racial, ethnic and territorial exclusion. Protests of the Arab Spring, and protests in Spain and Greece, Israel and Chilli, London and India (and, might I add, South African mines and farms and cities and towns), have this common agenda: increasing inequality, the shameless cynicism of corruption and continuous unemployment.² Jürgen Moltmann describes continents like Africa as the contexts of submodernity – those who are excluded from the positive fruit of ambivalent modern political and socio-economic arrangements. He³ employs the notion of submodernity to describe this exclusion of Africans.

 Hessel, S. en Morin, E., De weg van de hoop (Amsterdam: Van Gennep, 2011), 11. Original French version: Le chemin de l’esperance, 2011.  Ibid., 15.  Moltmann, J., God for a Secular Society. The Public Relevance of Theology (Minneapolis: Fortress Press, 1999), 11 f.

132

Nico Koopman

Millions of illiterate, semi-schooled and inappropriately schooled Africans discover that they are redundant in a globalized economy that asks for knowledge and skills for a so-called tertiary economy of information and communication technology and a variety of highly sophisticated services. Those who were required for agricultural and manufacturing economies are less needed by the new economy. Moltmann explains: “More and more countries in Africa and Latin America are ceasing to be of any interest at all to the industrial West. The number of people and markets that are no longer needed is steadily increasing. The exploited Third World is being turned into a superfluous backwoods, and its population into ‘surplus people.’”⁴ A sociologist like Manuel Castells describes Africa as the Fourth World, because it is the continent that experiences the highest level of socio-economic exclusion. Some economists reckon that Africa is the only continent where poverty is not on the decrease, but where it is actually growing. On no continent do we witness the violation of dignity as we do on the continent of Africa. South African public intellectual, and former senior official of the World Bank, Mamphela Ramphele⁵ describes the growing levels of socio-economic exclusion as one of the major public challenges of contemporary South Africa. Despite the transition to democracy nineteen years ago, and the positive political and macro-economic changes, millions of South Africans are still excluded from the basic necessities and goods of love, and from the opportunity to participate in building a new society. In fact, for many, the current situation is more desperate than during apartheid. The levels of inequality in South Africa have increased. South Africa now has the highest Gini-coefficient in the world. And although white people still enjoy more socio-economic privileges, the gap between rich and poor does not run exclusively along colour lines any longer. The challenge of socio-economic exclusion constitutes a human dignity and human rights challenge. Where people experience exclusion from the goods of life, especially socioeconomic exclusion, their human dignity is not fully acknowledged, affirmed and actualized. Dutch social scholar Rob Buitenweg⁶ argues that human dignity is not fulfilled where people still experience exclusion from three sets of goods: Firstly, against the background of the vulnerability of humans, we embark on the quest for well-being, i. e. the quest to protect ourselves against suffering and the

 Ibid., 13.  Ramphele, M., Conversations with my Sons and Daughters (Johannesburg: Penguin Books, 2012).  Buitenweg, R., Recht op een menswaardig bestaan. Een humanistieke reflectie op social-economische mensenrechten (Utrecht: Uitgeverij de Graaff, 2001), 94 f.

Human dignity, Human Rights and Socio-Economic Exclusion?

133

threats to our physical existence. We therefore strive for the most basic goods for human life, like food, clothes, housing and medical care. Humans are, secondly, also social, relational beings. We are dependent upon each other. We care for each other. Our membership of communities establishes our identities. We therefore engage in the quest to participate in various social processes. We oppose isolation, alienation and exclusion. We strive to participate in communal processes, especially those that give form and content to our living together. Isolation and exclusion violate our self-respect. Humans are, thirdly, open, and not pre-determined, programmed, beings. We are also not determined by our instincts. We can make choices and we cannot avoid making choices. We are responsible beings. This inherent quality of openness prompts us to strive for freedom. We do not want to be imprisoned, trapped, enslaved, forced or oppressed. We hunger for spaces in which we can make choices and live authentically, according to our own preferences. So, where our physical needs are not met, where we are denied the opportunity of participation and contribution to life, and where we do not experience freedom and responsibility, our dignity is violated. In his reflections on human dignity, Wolfgang Huber emphasizes that we can only come to good definitions of human dignity if we ask the question about the things that people are excluded from. He⁷ makes helpful remarks about the definition of human dignity: “The concept of human dignity is among the most controversial in the language of ethics and politics. Yet those whose dignity has been disregarded or even trampled on know full well what human dignity means. Its meaning is established by the denial of it.” In the same vein, Nigerian scholar Wole Soyinka⁸ describes the violation of dignity on the African continent with words like “anti-humanism” (p. xiii), “reduction in self-esteem” (p.6), “nullification of human status” (p.104), “humiliation” (p.104) and “assault on dignity” (p.8). Human dignity has two building blocks, namely justice and freedom. Where people are excluded from the compassionate justice that John Calvin pleaded for, and from the twofold freedom – freedom from oppression and enslavement and freedom for service to God, and others – that Luther advanced, dignity is violated.

 Huber, W., Violence. The Unrelenting Assault on Human Dignity, trans. Gritsch, R. (Minneapolis: Fortress Press, 1996), 10. Original German, Die tägliche Gewalt: Gegen den Ausverkauf der Menschenwürde (Freiburg im Breisgau: Verlag Herder, 1993).  Soyinka, W., Climate of Fear (London: Profile Books, 2004).

134

Nico Koopman

The actualization of dignity is served by the quest to implement and fulfil human rights. Jürgen Habermas⁹ makes a strong case for the actualization of dignity through the fulfilment of human rights. He discusses the connection between human dignity and human rights. Habermas¹⁰ explains that dignity is a notion with roots in the long Christian tradition and in the classic philosophical tradition. It is, however, remarkable, he¹¹ explains, that in the development of human rights during the eighteenth and nineteenth centuries, human dignity did not explicitly surface. The only exception was paragraph 139 of the March 1849 German Constitution, which stated that a free people respects the dignity of even a criminal. The notion of human dignity, however, was crucial in the development of democratic constitutions and bills of rights during the 20th century in countries like Germany, Italy and Japan – and one can add to the list, South Africa. This was the case not because human dignity was added to the bills of rights as an add-on or afterthought, but because the dignity of millions of people was violated in these countries. The Universal Declaration of Human Rights also entrenched dignity as foundational moral principle against the background of the atrocities of the Second World War. Habermas¹² adds that dignity was, in fact, implicitly subscribed to in all rights discourses. Two points are emphasized. Firstly, dignity did not come after human rights. Dignity has a long history. Secondly, dignity provides a moral thrust to human rights discourses. Dignity shows that rights are required where people experience exclusion from justice and freedom.¹³ The moral thrust that dignity provides to human rights discourses paves the way for a twofold involvement in the fulfilment of rights, namely one driven by the conscience of individuals, and the other one driven by the institutional formulation of positive law.¹⁴This individual and institutional (constitutional) work for the fulfilment of rights provides to human rights discourse the dimension of a realistic utopia. Rights are no longer deceptive images of a social utopia which guarantees collective happi-

 Habermas, J., The Crisis of the European Union. A Response, trans. C. Cronin (Cambridge: Polity Press, 2012). His article in this book, titled “The Concept of Human Dignity and the Realistic Utopia of Human Rights,” is of importance here.  Ibid., 71– 73, 89 – 92.  Ibid., 73 – 75.  Ibid., 74– 77.  Ibid., 77.  Ibid., 83, 87.

Human dignity, Human Rights and Socio-Economic Exclusion?

135

ness, but they are anchored in the institutions of constitutional states themselves.¹⁵ Habermas also refers to other, related, implications of the basing of human rights in human dignity. Grounding rights in dignity ensures that we do not talk in abstract terms about rights. Rights need to be spelled out in concrete terms in each particular concrete situation. This orientation towards the concrete, specific and particular paves the way for dialogue and compromise-seeking in situations where rights are in conflict, and where we deal with incommensurable situations – a concrete focus upon what constitutes dignity in those specific situations of disagreement and even incommensurability. Dignity, therefore, supports human rights discourses and judicial decision-making, especially in pluralistic societies where incommensurability might surface more regularly.¹⁶ Dignity provides a concreteness to human rights discourses that ensures that the consciousness of suffering individuals¹⁷ finds its way into the texts of bills of rights and into legal texts. Human dignity helps to exhaust the potential of current rights and to construct new ones.¹⁸ Like a seismograph, it registers what is constitutive for a democratic legal order.¹⁹ Because human dignity has to do with all dimensions of rights, basing rights in dignity ensures that all types (liberal, participation, social and cultural) and generations or dimensions (political and civil, socio-economic, developmental and environmental) of rights, receive attention.²⁰ Habermas²¹ argues that socio-economic rights should be viewed as of equal value to more classical civil and political rights: Experiences of exclusion, suffering and discrimination teach us that classical civil rights acquire “equal value” (Rawls) for all citizens only when they are supplemented by social and cultural rights. The claims to an appropriate share in the prosperity and culture of society as a whole places narrow limits on the scope for shifting systemic costs and risks onto the shoulders of individuals. These claims set constraints on the increase in social inequality and forbid the exclusion of entire groups from social and cultural life as a whole.

 Ibid., 95.  Ibid., 76 – 81.  Habermas states: “The appeal to human rights feeds off the outrage of the humiliated at the violation of their human dignity.” See ibid., 75.  Ibid., 78.  Ibid., 81.  Ibid., 79 – 80.  Ibid.

136

Nico Koopman

Just as it is inadequate to emphasize civil rights at the expense of socio-economic rights, so it is not sufficient to stress the importance of socio-economic rights only. All rights are interdependent and need to receive joint attention.²² Another positive spin-off of basing rights in dignity is the fact that since dignity is universal and all people have equal dignity,²³ rights have universal significance and application. Habermas²⁴ states: “Human dignity, which is one and the same everywhere and for everyone, grounds the indivisibility of all categories of human rights.” The quest for rights involves the so-called three generations or dimensions of rights, namely political and civil rights, socio-economic rights, and rights with regard to development and the natural environment. This so-called third generation of rights, especially, affirms that human dignity and human rights discourses always take place in the context of the integrity of creation. The notion of the integrity of creation entails that human life and natural life are integrated and interdependent, and that nature has inherent integrity, worth and value. So, where people are excluded, they do not enjoy dignity, justice and freedom, and their rights are violated. This paper argues that exclusion is overcome where the quest for the actualization of human dignity through the implementation of human rights is alive. This paper specifically seeks for a specific Christian contribution to this quest and suggests that the notion of the threefold office of Christ be explored as a category that might assist churches in participating in the quest for human rights, dignity and inclusion, specifically socio-economic inclusion. The rest of this paper is structured as follows: A brief discussion of the notion of the threefold office is offered. Thereafter, the prophetic, priestly and royalservant calling and character of churches are discussed, with the purpose of exploring the potential of these three categories to illuminate and inspire the threefold public involvement of churches with regard to the realization and actualization of rights, dignity and inclusion.

 Ibid.  Ibid., 77.  Ibid., 80.

Human dignity, Human Rights and Socio-Economic Exclusion?

137

2 The Threefold Office of Christ? In this part of the paper a brief discussion is offered of the historico-theological development of the threefold office, the Reformed and ecumenical reception thereof, its Trinitarian framework, and some points of criticism thereof which suggest guidelines for a constructive and redemptive use of the threefold office today.²⁵ One of the most helpful contemporary works in Christology that focuses extensively upon the threefold office of Christ is the work of Methodist theologian Geoffrey Wainwright.²⁶ Wainwright describes the threefold office as both a Reformed and ecumenical notion. He discusses the use of the threefold office in the early Church, and mentions that one of the first firm and explicit uses of the threefold office was that of Eusebius of Caesarea in the 4th century. Eusebius’s aim was to illustrate that Jesus Christ was the fulfilment of the Old Testament and, in fact, of all religions.²⁷ Wainwright helpfully cites the perspectives of theologians of the early Church, like John Chrysostom (4th century), who argued that Abraham embodied the dignities of prophet and priest, and David, the dignities of king and prophet. Jesus, the son of both, has all three dignities of King, Prophet and Priest.²⁸ Wainwright also discusses the perspectives of Peter Chrysologus, 5th-century bishop of Ravenna, who calls Christ the King of kings, Priest of priests and Prophet of prophets.²⁹ Wainwright³⁰cites Erasmus’s work on the threefold office as another example of a scattered fore-runner and anticipation of the eventual systematic development of the doctrine of the threefold office by Calvin. Erasmus described Christ as the Prophet of prophets, the Priest who gave Himself as victim to purge all the sins of those who believe in Him, and the Ruler to whom all power was given. Before this Ruler returns as Judge, He kindly offers peace, and through His teaching, He dispels all darkness.

 This work on the threefold office draws extensively on prior and ongoing research of mine.  Wainwright, G., For Our Salvation. Two Approaches to the Work of Christ (Grand Rapids: William B. Eerdmans Publishing Company, 1997), 97– 186.  Ibid., 110.  Ibid., 110 – 111.  Ibid., 111.  Ibid., 103.

138

Nico Koopman

Wainwright³¹ identifies Martin Bucer as the most direct inspiration for Calvin’s use of the doctrine of the threefold office. For Bucer, Christ is the King (rex) who will govern us and provide all good things for us, and who protects us against ill and oppression. As Prophet or Teacher (doctor), He teaches us the whole truth. As Priest (sacerdos), He reconciles us with the Father eternally. Wainwright³² affirms that Calvin laid the foundation for the extensive and systematic use of the threefold office in the Reformed tradition. He states that the royal, priestly and prophetic functions among the people of God for the sake of salvation have been united under a single Head, Jesus Christ. Based on Calvin’s work, the Reformed confessions and catechetics (amongst others, the Heidelberg Catechism and Westminster Confession) and the Reformed dogmatics (amongst others, Friedrich Schleiermacher, Heinrich Heppe, Charles Hodge, Emil Brunner and Karl Barth) gave a prominent place to the threefold office. According to Schleiermacher,³³ the threefold office is a necessary and adequate description of the achievements of Christ in the corporate life, i. e. the Church, founded by Him. As Priest of active obedience who fulfils God’s law, as Priest of passive obedience who dies an atoning death, and as Priest who intercedes for us with the Father, Christ assumes believers into the power of His God-consciousness for the sake of our redemption, and, as Priest, He assumes believers into the fellowship of His unclouded blessedness for the sake of our reconciliation. Christ’s prophetic work consists of teaching, prophesying and working miracles, and His kingly office entails that everything that we need for our salvation and well-being continually proceeds from Him. Later in this essay we will discuss a criticism of these views of Schleiermacher, as an example of some opposition to the notion of the threefold office. Wainwright explains that after Calvin, the notion of the threefold office was, amidst much suspicion, also used by some theologians in the Lutheran tradition (amongst others, Helmut Thielicke and Edmund Schlink),³⁴ the Roman Catholic tradition³⁵ (Vatican II and, amongst others, Walter Kasper), and to some extent the Methodist tradition,³⁶ the Orthodox tradition (amongst others, Alexander

 Ibid., 104.  Ibid., 99 – 103. For a helpful contemporary discussion of Calvin’s systematic use of the threefold office of Christ, see Edmondson, S., Calvin’s Christology (Cambridge: Cambridge University Press, 2004).  See ibid., 101.  Ibid., 105.  Ibid., 106 – 107, 118.  Ibid., 107– 108.

Human dignity, Human Rights and Socio-Economic Exclusion?

139

Schmemann)³⁷ and the Anglican tradition (especially John Henry Newman, when he was still an Anglican). Wainwright³⁸ argues in favour of a Trinitarian understanding of the threefold office of Christ. This office is Christo-centric, but not Christo-monistic. He³⁹ refers to Calvin’s view that it is the Father who anoints Christ with the Holy Spirit to be King, Priest and Prophet. Wainwright⁴⁰ formulates as follows: “ … the Holy Spirit is the Father’s gift by which Christ Himself, Christians, and the church and its ministers are all anointed.” Wainwright’s⁴¹ identification of five uses of the threefold office in the theological tradition of almost two millennia affirms this Trinitarian framework of the threefold office. The Christological and baptismal functions were predominant in the patristic period. The soteriological use received renewed emphasis during the Reformation. Since the 19th century, the ministerial and ecclesiological functions have enjoyed predominance. The Trinitarian framework of the threefold office describes Christ’s Person and work in terms of their relatedness to the Persons and work of the Father and the Spirit, and in terms of their relatedness to the sacraments, salvation, ministry and the Church. The broad range in terms of how the Bible tells the story of God’s redemptive dealings with human beings and the whole world, in and through His Church, comes into the picture when we deal with the threefold office of Christ. The Trinitarian framework also helps us to understand that all three offices are involved in both the state of humiliation and the state of exaltation of Christ, and in both His divine nature and His human nature. Wainwright⁴² opts for the exchange of properties (communicatio idiomatum) between Christ’s divine and human natures in both states of humiliation and exaltation. In the light of this unity in Christ, we need not be too tense about the order in which to reflect upon the three offices. Wolfhart Pannenberg⁴³ cited some points of opposition to the threefold office. Objections include that it describes the work of Christ inadequately and that it does not make room for other offices besides prophet, priest and king that were also recognized in the Old Testament. He doubts whether the name Christ can be linked to all three offices and questions the idea that the Spirit

      

Ibid., 113. Ibid., 118 – 120. Ibid., 99, 106. Ibid., 118. Ibid., 109 – 117. Ibid., 118 – 119. Pannenberg, W., Jesus. God and Man (Philadelphia: Westminster Press, 1977/1968), 212– 225.

140

Nico Koopman

anointed Jesus for these offices. He is of the opinion that none of these three offices, except, to some extent, the priestly office, existed consistently in Israel’s history. He also does not adhere to the idea, described earlier, that the three offices function in both the states of humiliation and exaltation of Christ. He feels the notion over-emphasizes the earthly work of Christ. The criticism of the notion of the threefold office from the perspective of feminist and post-colonial thinking is important, especially when we try to discern the significance of this office for contemporary complex public life. US theologian Joerg Rieger, for example, offers some strong opposition to the continued use of the three offices of Christ in contemporary contexts. Rieger argues throughout his book that there is room for the continued use of the threefold office of Christ, on condition that Christian faith is liberated from the misuse of these offices to legitimize and support traditional and contemporary empires. Contemporary empires in post-colonial contexts need to be acknowledged, exposed and opposed. In the end, Rieger does not reject the notion of the threefold Christ, but he pleads for a use thereof which portrays Christ as a resisting and transforming Christ. We may not find his criticism of the theological employment of the threefold office in especially so-called western theological circles completely convincing, but his plea to interpret the threefold notion in terms of its potential to resist dehumanization, ecocide, injustice and oppression, and in terms of its potential to actualize dignity in the context of the integrity of creation, justice and freedom, should be taken seriously.⁴⁴ With this historical background, and especially these points of criticism of the notion of the threefold office, in mind, we can turn to exploring the potential of the threefold office for guiding and inspiring the involvement of (especially South African) churches in the quest for rights, dignity and inclusion. Because we were baptized into Christ by the Spirit,⁴⁵ and since we are also anointed by the Spirit,⁴⁶ and because of our redemption and restoration in

 John Caputo’s little book also pleads for a fresh and liberating look at the Person and work of Christ. See Caputo, J. D., What Would Jesus Deconstruct? The Good News of Postmodernism for the Church (Grand Rapids: Baker Academic, 2007). In an interesting reflection on Christology and ethics, Reformed theological ethicist James Gustafson offers a description of the work of Christ which might illuminate our discussions on the public and ethical import of the threefold office of Christ. He portrays Christ as the Lord who is Creator and Redeemer, and as the Sanctifier, Justifier, Pattern/Example and Teacher. See Gustafson, J., Christ and the Moral Life (Chicago: The University of Chicago Press, 1968).  Wainwright, G., For Our Salvation, 114.  Ibid., 99.

Human dignity, Human Rights and Socio-Economic Exclusion?

141

Christ,⁴⁷ we participate in the prophetic, priestly and royal-servant work of Christ. Wainwright therefore suggests baptism into Christ, anointing by the Spirit, and redemption and restoration in Christ as the pathway to our participation in the threefold office of Christ. Thereby, he brings Christology, ecclesiology and ethics together. The Church, in all its forms, is challenged to fulfil this threefold responsibility to enhance dignity, rights, justice, freedom, equality and inclusion. And the Church is challenged to do this in collaboration with various individuals and institutions of society, especially civil society, but also the media, business and political authorities.

3 A Prophetic Involvement in the Quest for Inclusion? In what he calls a contemporary hermeneutic, interpretation and understanding of the prophetic office, Wainwright⁴⁸ argues that the ongoing discernment of the will of God might illuminate the quest in contemporary societies, which are experiencing an information explosion, to develop sapientia, wisdom, amidst so much scientia and information. And in a context of meaninglessness and purposelessness, the ongoing discernment of God’s will provides telos, purpose and meaning. In the prophetic discourse of Public Theology in South Africa, we might view our prophetic practices as witness of, and participation in, the life of Christ, the Prophet, who reveals the truth, the will of God, as a truth of our justification by Christ, and as a truth that entails our calling to seek justice in the world. The prophetic quest is therefore a quest for the truth of our justification and salvation in Christ, which is expressed in justice in the world and which is served by sapientia and discernment. On the basis of this understanding of prophetic Christology, ecclesiology and ethics, one might venture to suggest five modes of prophetic speaking that might serve the prophetic calling of the Church well. Building upon, adjusting and appropriating the work of James Gustafson⁴⁹ on the public speaking of churches, I have constructed five interdependent

 Ibid., 113.  Ibid., 133 – 135.  Gustafson, J., Varieties of Moral Discourse: Prophetic, Narrative, Ethical, and Policy (Stob lectures of Calvin College and Seminary, Grand Rapids, 1988a). For an article in which Gustafson

142

Nico Koopman

and complementary modes of prophetic speaking. These are: prophetic speaking as envisioning, criticism, story-telling, technical analysis and participation in policy-making. Envisioning entails the spelling out of the ideal picture of a new society. The vision informs about a new and better reality. The vision also inspires to a new lifestyle, new practices, and new habits and virtues. The vision of a new life transforms persons and systems, individuals and societies, to reflect the values and the goods of a new society. A society of dignity that comes to expression in justice and freedom is the vision that South Africans from a variety of religious and secular backgrounds agree upon. This vision is expressed in the Bill of Rights of the 1996 South African Constitution, which draws extensively upon the German Constitution with its emphasis on dignity. Prophetic criticism refers first of all to self-criticism. Where churches fail to embody the vision of a new and transformed society, we offer self-criticism. Churches also offer courageous public criticism where individuals, leaders and institutions betray this vision. Where the visionary task entails annunciation, the task of criticism entails denunciation. Where visionaries announce the liberating new, critics denounce the persistence of the oppressive old. Christian sin discourses might be revitalized to strengthen the prophetic self-critical and public critical task of churches. Prophetic story-telling refers to the telling of stories of pain and oppression. Story-tellers give voice especially to the pain and cries of the marginalized, outcasts and silenced people and creatures of society. Story-telling also tables the hopeful and inspiring stories of victory and liberation. Technical analysis implies that, with the help of appropriate experts, thorough analyses are made of complex public problems and challenges. This technical discourse facilitates more credible and adequate responses by churches to complex and sophisticated public challenges.⁵⁰ In South Africa, Ramphele

also discusses these discourses, see “An Analysis of Church and Society Social Ethical Writings,” Ecumenical Review 40 (1988b), 267– 278. For an article in which Gustafson applies these discourses to medical questions, see “Moral Discourse About Medicine: A Variety of Forms,” Journal of Medicine and Philosophy 15, no. 2 (1990), 125 – 142. For an application of Gustafson’s theories to the question of justice, see Brady, B. V., The Moral Bond of Community. Justice and Discourse in Christian Morality (Washington: Georgetown University Press, 1998). For an extensive discussion of these five modes of prophetic speaking see Koopman, N., “Modes of Prophecy in a Democracy?” in Theology in the Public Square/Theologie in der Öffentlichkeit, vol. 1, Prophetic Witness. An Appropriate Contemporary Mode of Public Discourse? ed. BedfordStrohm, H. and De Villiers, D. E. (Berlin: Lit Verlag, 2011), 181– 192.  The works of philosophers like Paul Ricoeur and Michael Sandel, and of theologians like Nicholas Wolterstorff, strengthen the technical analyses of justice and freedom, i. e. of human

Human dignity, Human Rights and Socio-Economic Exclusion?

143

pleads for this technical discourse. She is concerned that there is too much nostalgia about visionary documents like the Freedom Charter, which was formulated during the struggle years by a small group of authors, without thorough technical reflection, without broader consultation or expert participation, and at high speed in the light of security threats. Besides the inadequate analysis of those visionary documents, they were not formulated as documents that should serve the purpose of addressing the challenges of contemporary complex democracies with market economies in the context of globalization. Policy discourse refers to the participation of churches in the quest to make, implement and monitor policies that will enhance the plight of the most vulnerable in society. This discourse, however, implies that we need to move from merely offering broad visions for public life. We also should avoid providing blueprints for policies. But churches need to provide parameters for policy-making that are less broad than visions, and less specific than blueprints. The notion of middle axioms that was developed in 1937 by the Life and Work section of the later World Council of Churches might still prove helpful in this regard.⁵¹ Policy implementation, with all its implications, is a crucial part of the prophetic agenda.

4 A Priestly Involvement in the Quest for Inclusion? In his contemporary hermeneutic for the priestly office, Wainwright⁵² argues that Christ the Priest replaces our pain and suffering, which are expressed in alienations, with reconciliation, and that He replaces our sin and guilt, which are expressed in estrangement, with atonement. Christ restores us to divine communion and to communion with each other. Wainwright⁵³ spells out the concrete and public forms that cry out for this reconciliation, atonement and restored communion:

dignity and human rights discourses. See Ricoeur, P., Justice; Sandel, M., Justice. What’s the Right Thing to Do? (New York: Farrar, Strauss and Giroux, 2009/2010); Wolterstorff, N., Justice. Rights and Wrongs; Justice in Love, 2011.  For a discussion of the potential of middle axioms, see Koopman, N., “Churches and Public Policy Discourses in South Africa,” Journal of Theology for Southern Africa, 136 (March 2010), 41– 56.  Wainwright, G., For Our Salvation, 150 – 153.  Ibid., 150.

144

Nico Koopman

… oppression is political alienation, for the disenfranchised are deprived of the privileges and responsibilities that go with the human vocation to live in society; poverty is economic alienation, for the impoverished are cut off from their share in the fruit of the earth that humankind is charged by God to cultivate; sickness is physical alienation, and a troubled mind is psychological alienation, and both remove the sufferers from the flourishing existence which God envisioned for his human creatures; slavery is alienation of identity, the profoundest infraction of the dignity of every child of God; bereavement displays death as the alienation of humankind from the life of communion for which it was made.

Jesus Christ, the Public Priest, entered into this human condition of alienation and estrangement. This estranged humanity is the humanity that Christ consumed, and, in the words of Hans Us von Balthasar,⁵⁴ “what had not been assumed would not have been healed.” For South African churches who seek to develop priestly public theologies, the recommendations offered by Wainwright might be very helpful in our context of so many manifestations of alienation and estrangement. The priestly mandate challenges, invites and inspires churches to overcome political alienation. The young South African democracy has a good democratic vision and policy documents in place. We, however, need to work for social solidarity, social cohesion and the joint building of social capital. We have sound macro-economic policies and practices in place, but the benefits did not reach the poor, and we still have the biggest gap between rich and poor in the world. Despite our noble human rights principles of access to basic necessities, millions are still excluded from physical and mental health care. We still hurt each other on the basis of racial, national, tribal, gender and socio-economic identities, and on the basis of identity of sexual orientation, age and disability. We even hurt nature. The priestly office calls us to work to overcome these alienations, hurts and violations of dignity, and to work, therefore, for the actualization of dignity, for health and healing, and for restitutive reconciliation and reconciling justice.

5 A Royal-Servant Involvement in the Quest for Inclusion? Wainwright⁵⁵ argues that the royal-servant office teaches contemporary societies about authority, freedom, power and hope. In a world that seeks autonomy and,

 Quoted by ibid., 151.  Ibid., 169 – 171.

Human dignity, Human Rights and Socio-Economic Exclusion?

145

in the process, aims to become deistic and eliminate any idea of divine action and rule, the plea is not to burn down the house of authority and not to bring down the Scriptures, creeds, liturgies and institutions of the admittedly imperfect historic Church. In a society hungry for cultural freedom and an absolute right of self-expression, this office calls for recognition that my neighbour is, negatively put, the limit of my freedom, and, positively put, a personal call to service. He lastly mentions that this office assures us of ultimate hope in the exalted Lord and King. In the South African context, this office might be employed to decontaminate imperialistic notions of power that seem to threaten the idea of the servant power that is characteristic of power in the democratic vision, with its central words like minister, which literally means servant, and the word president, which means the one that presides, the one that serves as an example amongst the servants, the servant par excellence. More than that, the Christocracy tells of a Lord, a King, who is Shepherd and the most humble of servants. Simultaneously this office calls disciples to fulfil their calling as citizens; to a public life of respecting authority and living responsibly, in the Church and in all walks of life. The royal-servant calling also entails that the life of freedom be defined as a life of freedom from bondage and freedom for a life of service. This view of freedom provides appropriate guidelines and parameters for developing a human rights culture specifically to advance freedom and justice rights, and also to obey the call to freedom and justice responsibilities. The royal-servant office also prompts a life of hope. Hope can be described in a threefold manner. Hope is realistic hope because it is founded in the biggest reality of all, namely the cross and the resurrection, the ascension and the parousia of Jesus Christ, which is the fulfilment of the promises of God. Against this background, hope is responsive hope. Hope therefore pays attention, functions pro-actively, and is expressed in concrete involvement in the matters of life. Hope is resilient hope. Despite the most difficult circumstances, Christian hope perseveres with patience and fortitude. And based on this calling, authority and hope, churches are moral communities for the formation of disciples and citizens of character and virtue – which serve the actualization of dignity, inclusion and participation. According to American theologians Bruce Birch and Larry Rasmussen,⁵⁶ an etymological study of the word “character” indicates that character has to do with the engraving of particular principles into a person. They refer to the

 Birch, B., Rasmussen, L., Bible and Ethics in the Christian Life (Minneapolis: Augsburg Press, 1989), 124.

146

Nico Koopman

Greek roots of the word, which mean engraving tool, and, by extension, the marks made by an engraving tool. Character, hence, bears the notion of values which are engraved into a person, over time, so that it becomes assimilated, incarnated, and embodied in the person. Character, like the virtues, therefore, develops over time in communion with God and other human beings. The North American ethicist J. Philip Wogaman⁵⁷ offers a valuable description of virtue. He describes virtue as “a disposition of the will towards a good end, as a tendency to think or behave in accordance with goodness, as a habit of the will to overcome a threat to our ultimate good.” A virtue is a predisposition, a tendency, an intuition to be and to act in a specific way without prior reflection. It almost happens instinctively. It to some extent has an element of unavoidability. The Greek word for virtue, arète, refers to the divine power that we do have to be and to act in accordance with goodness. Virtue also has the dimension of habitus. This implies that virtue is acquired in a process of consistent and collective habitual behaviour. For David Cunningham,⁵⁸ virtues are dispositions that God has by nature, and in which we participate by grace. Virtues are characteristics of the triune God that are bestowed upon us freely. Greek philosopher Aristotle has identified four so-called cardinal virtues. Cardinal is derived from the Latin word cardo, which refers to the hinge of a door. The four cardinal virtues are, therefore, the hinge on which all virtues turn. These virtues are justice, moderation/self-control, discernment/wisdom and courage/fortitude. Centuries later, Thomas Aquinas added three theological virtues to these four, namely faith, hope and love. Social and political scientists in various parts of the world argue that democracies with human rights cultures that serve the common good cannot become a reality without leaders and citizens of civic virtue and character. Societies hunger for people of public and civic virtue: public wisdom in contexts of complexity, ambiguity, tragedy and aporia (dead-end streets); public justice in the context of inequalities and injustices on local and global levels; public temperance in the context of greed and consumerism amidst poverty and alienation; public fortitude amidst situations of powerlessness and inertia; public faith amidst feelings of disorientation and rootlessness in contemporary societies; public hope amidst situations of despair and melancholy; public love in societies where public solidarity and compassion are absent.

 Wogaman, J. P., Christian Moral Judgment (Louisville: Westminster/John Knox Press, 1989), 29.  Cunningham, D. S., These Three Are One. The Practice of Trinitarian Theology. (Oxford: Blackwell Publishers, 1998), 123.

Human dignity, Human Rights and Socio-Economic Exclusion?

147

6 Conclusion Christian faith, churches and theological reflection can offer much to the building of theoretical frameworks and practices that might enhance a life of dignity, freedom, justice, rights, inclusion and participation for all. And a fresh look at the classical confession of the threefold office of Christ might illuminate this quest.

Bibliography Birch, B., and Rasmussen, L. Bible and Ethics in the Christian Life. Minneapolis: Augsburg Press, 1989. Brady, B. V. The Moral Bond of Community. Justice and Discourse in Christian Morality. Washington: Georgetown University Press, 1998. Buitenweg, R. Recht op een menswaardig bestaan. Een humanistieke reflectie op social-economische mensenrechten. Utrecht: Uitgeverij de Graaff, 2001. Caputo, J. D. What Would Jesus Deconstruct? The Good News of Postmodernism for the Church. Grand Rapids: Baker Academic, 2007. Cunningham, D. S. These Three Are One. The Practice of Trinitarian Theology. Oxford: Blackwell Publishers, 1998. Edmondson, S. Calvin’s Christology. Cambridge: Cambridge University Press, 2004. Gustafson, J. Varieties of Moral Discourse: Prophetic, Narrative, Ethical, and Policy. Stob Lectures of Calvin College and Seminary, Grand Rapids, 1988. Koopman, N. “Churches and Public Policy Discourses in South Africa.” Journal of Theology for Southern Africa, 136 (March 2010), 41 – 56. Gustafson, J. “An Analysis of Church and Society Social Ethical Writings.” Ecumenical Review 40 (1988), 267 – 278. Gustafson, J. “Moral Discourse about Medicine: A Variety of Forms.” Journal of Medicine and Philosophy 15, no.2 (1990), 125 – 142. Gustafson, J. Christ and the Moral Life. Chicago: The University of Chicago Press, 1968. Habermas, J. The Crisis of the European Union. A Response, trans. C. Cronin. Cambridge: Polity Press, 2012. Hessel, S., en Morin, E., De weg van de hoop. Amsterdam: Van Gennep, 2011. Original French edition: Le chemin de l’esperance, 2011. Huber, W., Violence. The Unrelenting Assault on Human Dignity, trans. Gritsch, R. Minneapolis: Fortress Press, 1996. Original German edition: Die tägliche Gewalt: Gegen den Ausverkauf der Menschenwürde. Freiburg im Breisgau: Verlag Herder, 1993. Koopman, N. “Modes of Prophecy in a Democracy?” In Theology in the Public Square/Theologie in der Öffentlichkeit. Vol. 1, Prophetic Witness. An Appropriate Contemporary Mode of Public Discourse?, edited by Bedford-Strohm, H. and De Villiers, D. E, Berlin: Lit Verlag, 2011, 181 – 192. Moltmann, J. God for a Secular Society. The Public Relevance of Theology. Minneapolis: Fortress Press, 1999.

148

Nico Koopman

Pannenberg, W. Jesus. God and Man. Philadelphia: Westminster Press, 1977/1968. Ramphele, M. Conversations with My Sons and Daughters. Johannesburg: Penguin Books, 2012. Soyinka, W. Climate of Fear. London: Profile Books, 2004. Wainwright, G. For Our Salvation. Two Approaches to the Work of Christ. Grand Rapids: William B. Eerdmans Publishing Company, 1997. Wogaman, J. P. Christian Moral Judgment. Louisville: Westminster/John Knox Press, 1989. Wolterstorff, N. Justice. Rights and Wrongs; Justice in Love. Princeton, Princeton University Press, 2011.

Dirkie Smit

“Whose Law?” South African Struggles with Notions of Justice But even of just laws, we can and do ask, “Whose laws are they?” Is this not the question that Europeans ask of the output of Brussels? Is it not the same question Americans ask of international law? (Paul W. Kahn, Political Theology. Four New Chapters on the Concept of Sovereignty, 2011). African problems are better solved by African traditional justice institutions, South African media on Friday quoted President Jacob Zuma as saying. “Let us solve African problems the African way, not the white man’s way,” he was quoted … telling traditional leaders. Zuma spoke as the Traditional Courts Bill, aimed at empowering local chiefs to act as judge, prosecutor and mediator, with no legal representation and no appeals allowed, has been submitted to parliament. Critics of the bill, including the minister for women’s affairs Lulu Xingwana, say the proposed law takes people back to the “dark ages.” Activists argue that it creates a separate, second-class justice system for rural communities, where women have fewer rights. Zuma urged the traditional leaders: “Let us not be influenced by other cultures and try to think the lawyers are going to help … We are Africans. We cannot change to be something else.” (2nd November 2012, SAPA).

1 Justice – or Law? On 12th September this year, the poet and playwright Adam Small received the Hertzog Prize – by far the most prestigious honour in South African literary circles. It was a deeply emotional and controversial moment. Observers agreed that an injustice of the past was finally, after decades, rectified – yet, most also acknowledged that the existing rules had to be overruled in blatant ways in order to do that. According to the rules, the prize should be awarded for new and original work published during the previous three years; in this case, however, it was awarded for the contribution of his life’s work to the drama genre, and only decades after the publication of his texts. Years ago he did not receive the Prize – most probably for ideological reasons. Now they had to break their own rules in an attempt to redress the injustice of the past. Some people complained and objected, even officially, while most rejoiced, celebrated and praised the Akademie vir Wetenskap en Kuns for finally doing justice, albeit unlawfully and unjustly.¹

 For background to Adam Small and also to the commemoration of his 75th birthday, see, for example, the introductory essay Van Wyk, S., “Die groot Small – oor die lewe en werk van Adam

150

Dirkie Smit

In an ironic way, this event illustrates clearly, on a small scale, a theme that would occupy a central place in Small’s own work. The theme is that of the relationship between law and justice. In an almost prophetic way, he addressed this theme already in his first published collection, in the poem called “What abou’ de lô?”² From the perspective of religion and human rights, this poem raises several themes regarding the complex relationships between law and morality or law and justice. South Africa has been, and still remains, struggling with most of these themes over many decades. This was true during the hey-day of ideological apartheid, but it was also the case during the years of the struggle against apartheid, as well as the later years of the radical transformation to a secular and pluralist democracy. It is, in fact, still the case during the present years of the country establishing itself increasingly as a constitutional democracy. The relationships between law and morality and law and justice still challenge South African public life and discourse. Time and space do not allow for a discussion of these themes against the background of these different phases and struggles during the different crises of South Africa’s recent history. The very modest purpose of this paper is simply to read this poem closely, in an attempt to sense how Small – perhaps? or are these thoughts merely a case of eisegesis? – already alluded to these complex themes in this particular poem, half a century ago. Small deliberately wrote in so-called Kaapse Afrikaans, the form of Afrikaans spoken particularly in the Western and Northern Cape regions of the country, amongst so-called Coloured people – although this term itself was and remains deeply ideological and strongly and emotionally contested.³ In his early

Small,” http://www.litnet.co.za (28 Maart 2006), as well as the edition of the journal of literature dedicated to him on the occasion of this prize, namely Van Wyk, S. en Willemse, H. (reds.), Adam Small. Tydskrif vir Letterkunde 49, no. 1 (Herfs 2012). Parts of the present paper were based on an earlier lecture at the University of the Western Cape, published as Smit, D. J. “Law and Morality? Some Theological Perspectives,” Scriptura 101 (2009:3), 341– 351.  Originally published in the volume Small, A., Kitaar my kruis (Kaapstad: HAUM , 1961). His best known and most acclaimed and popular drama, that also played a major role in the Prize, was Kanna, hy kô hystoe (Kaapstad: Tafelberg, 1999, first edition, 1965).  Just four days after this lecture, a conference was held in Stellenbosch, hosted by the Beyers Naudé Center for Public Theology, but organized by leading scholars like Hein Willemse, Michael Cloete, Nico Botha and Nico Koopman, to reflect on this contested notion. The theme of the conference was “Towards Histories of South African Intellectual Traditions. The Histories and Life Trajectories of Coloured/”Coloured“/coloured/Coloured Intellectuals.” It drew large public and media attention. Prominent South African intellectuals were invited as speakers, and many attended, including Richard van der Ross and Zimitri Erasmus, while others declined,

“Whose Law?” South African Struggles with Notions of Justice

151

poetry and plays, Small deliberately used this form of Afrikaans as a critical ideological instrument to challenge the elitist and dominant notions of so-called pure (or standard) Afrikaans. Reduced to mere prosaic phrases, and therefore without the repetition and rhetorical power of the original poetry, the poem basically reads: Diana was ‘n wit nôi/Martyn was ‘n bryn boy//dey fell in love// sê Diana se mense/sê Martin se mense/sê almal die mense/what abou’ de lô// sê Martin sê Diana watte lô/God’s lô/man’s lô/devil’s lô/watte lô// sê die mense net/de lô/what abou’ de lô// Diana was ‘n wit nôi/Martyn was ‘n bryn boy//dey go to jail// sê Diana se mense/sê Martin se mense/sê almal die mense/we tol’ you mos// sê Martin sê Diana/what you tol’/what God tell/what man tell/what devil tell/what you tol’// sê die mense net/de lô/what abou’ de lô// Diana was ‘n wit nôi/Martyn was ‘n bryn boy// Diana commit suicide/Martin commit suicide/Diana en Martin commit suicide// sê Diana se mense/sê Martin se mense/sê almal die mense/o God behoed// Martin en Diana died for de lô/God’s lô/man’s lô/devil’s lô/watte lô// sê die mense net/de lô/what abou’ de lô.

2 Positive Law? It is immediately obvious that Adam Small is raising critical questions concerning the legitimacy of existing law, or so-called positive law. Does the mere fact that laws have been posited also give them legitimacy? This question may range from national constitutions to the many different laws governing the diverse and complex spheres of life together in any given society. Are legality and legitimacy the same? Is justice just another name for “what the courts will do in fact” – in the words of a well-known definition?⁴ There can be little doubt that both in theory and practice these kinds of views are indeed widespread and popular. Many people almost take them for granted. This perspective, however, not only reflects popular opinion, but also represents a position defended by many theorists and legal scholars. It reflects

like Neville Alexander, and Jakes Gerwel, who was on the program, sadly passed away and was buried during that same week. Papers from the conference will hopefully be published during 2014, documenting the deep and emotional divergence of opinions around these ideologically laden and contested social descriptions.  See, for example, the discussion of positive law traditions in Huber, W., Gerechtigkeit und Recht (Gütersloh: Chr. Kaiser, 1996/2006).

152

Dirkie Smit

the way many law students are taught. It is the rule of conduct for many legal practitioners. It is, of course, also the theme of intriguing episodes of television series – the conviction that personal moral convictions and ideas about justice should not play any role in the legal process, but that the only purpose should be the fair and correct administration of the existing, positive law of the land. In short, justice is (from such a perspective) nothing other than the correct application of the positive law. One could argue that this position is the result of long and complex developments in legal thought and practice in the Western world and the direct legacy of philosophical traditions since Kant and his well-known and influential distinction between legality and morality. From a theological perspective too, this position found enthusiastic support from those who prefer to see the authority of the State – including the authority to make and administer law – as absolute and final. In such a view, the State has divine authority to maintain “law and order.” Accordingly, the positive law of the land, often even including its practical administration and concrete application in particular situations, is safeguarded from any potential criticism. History provides ample illustration of attempts to defend these convictions even on biblical grounds. Such blind trust in the positive law, however, easily hides the historical and social nature of all existing law. Many laws governing common life in modern societies, and most of the regulations and prohibitions that rule the diverse spheres of everyday social life, are of course value-neutral. They are merely practical arrangements and do not reflect different world-views and moral systems. Still, driving on the left or right side of the road may not be an ethical issue – but what about fishing quotas, education policies, determining punishments for specific offences and violations, import regulations, asylum and immigration regulations, land reforms, building roads and constructing dams, military spending, gender issues, social security, family law, nature conservation, national research priorities, or international covenants to protect natural and cultural diversity?⁵ Or what about the establishing of minimum wages in different sectors, public spending on the private homes of high government officials, or the classification of information as secret and therefore protected from the public?⁶

 See, for one interesting example, the discussion by the present President of the Federal Constitutional Court of Germany, in Vosskuhle, A., “Ist das öffentliche Wirtschaftsrecht moralisch?” in Wirtschaft im offenen Verfassungsstaat, Festschrift für Reiner Schmidt zum 70. Geburtstag, Hg. Bauer, H., Czybulka, D., Kahl, W. und Vosskuhle, A. (München: Beck, 2006), 609 – 626.  The last three examples refer directly to burning issues in South African society at the time of this lecture – the so-called deaths of striking mineworkers at Marikana in Northwest Province,

“Whose Law?” South African Struggles with Notions of Justice

153

Such examples all show that in a broader, albeit often indirect, sense, many laws do in fact reflect political priorities, world-views, specific interests, ethical concerns, notions of justice, and agendas of development and transformation and of equality and protection – in short, moral perspectives. What is regarded, accepted and respected, in any particular society, as positive law is inevitably always the product of particular historical developments and very specific social and political interests, commitments and visions. Behind the laws, morality hides. With his poem, Small was indeed raising questions about the legitimacy, the morality and the justice of very specific apartheid laws, laws which were in fact promulgated as positive law also in response to appeals from the leadership of churches, in order to maintain their moral world-view, at the time.⁷ National constitutions provide particularly instructive illustrations. Very often they are popularly portrayed as the final authority and source of all other authority, as simply given, as almost natural and inevitable, as beyond critique and further questioning – in short, as having their own legitimacy through their mere legality. Modern constitutions can easily be viewed, and are in fact regularly used, as the ultimate source and final norm for morality and justice.⁸ Such a process, however, may hide the fact of their own very particular genesis, the fact that they also need forms of legitimacy. Constitutions too reflect moral world-views and visions. Constitutions too proclaim specific values and convictions. Constitutions also, and one could claim that constitutions in particular, depend on trust, loyalty and commitment; they also call for embodiment, practices and virtues.⁹ the destructive boycott of farm workers at De Doorns in the Western Cape, the public outrage around President Zuma’s private housing at Nkandla in Kwa-Zulu Natal, and the widespread opposition against the new so-called information or secrecy bill.  He, obviously, challenged specifically the so-called Mixed Marriages Act (No. 55 of 1949) and the Immorality Act (No 23 of 1957). For the history and the controversies concerning these laws, see, for example, De Villiers, D. E. en Kinghorn, J. (reds.), Op die skaal: gemengde huwelike en ontug (Kaapstad: Tafelberg, 1984). For an illustration of the controversies in South Africa at the time, see, for example, Hund, J., Law and Justice in South Africa (Johannesburg: Institute for Public Interest Law and Research, 1988).  Since the arrival of democracy, the new South African Constitution has become our new Bible regarding questions of public morality, as even prominent Dutch Reformed Church leaders have openly declared, in attempts to persuade their members to accept new laws concerning a variety of moral issues. This is, however, also true of the leadership of many other South African churches.  Nico Koopman, the South African public theologian and Director of the Beyers Naudé Center for Public Theology in Stellenbosch, has repeatedly dealt with this conviction, namely, that the new South African democratic Constitution presupposes citizens who share, support and prac-

154

Dirkie Smit

The passionate struggle against the old South African Constitution, with its very particular historical, and explicitly religious, claim to legitimacy,¹⁰ provided an interesting demonstration,¹¹ as does the language of commitment to our new shared historical experiences and to different values and convictions in our new Constitution. Even constitutions – for many, the seemingly ultimate form of legality and even legitimacy – are, therefore, themselves founded on morality: they reflect morality, embody morality, call for morality and depend on morality. The critical concerns that Small raises – regarding any total identification of legality and legitimacy; regarding any strict separation between legality and morality, between the practice of law and order on the one hand, and questions of justice on the other – should not blind us to the crucial importance of existing law for any society, and to the importance of respect, loyalty and even obedience. Indeed, what is law without morality – quid leges sine moribus, according to Horace – also in this sense of citizens respecting and willingly obeying the law? It is crucially important that people should not regard themselves as above the law, as more moral or more just than the existing law and, therefore, not them-

tise the common values of the document: see, for example, his “Toward a Human Rights Culture in South Africa. The Role of Moral Formation,” NGTT 48 (2007), 107– 118; also Koopman, N., “Holiness and Public Life in South Africa: The Quest for Wholeness, Embrace and Justice,” Colloquium 40, no. 2 (2008), 166 – 181; and Koopman, N., “The Common Good and Human Dignity – Some Very Preliminary Remarks,” NGTT 53, suppl. 2 (2012): 31– 40, finally cf. his article in this volume, 131– 147.  In its foreword, the 1961 Constitution explicitly confessed religious adherence “[i]n humble submission to Almighty God, Who controls the destinies of nations and the history of peoples; Who gathered our forebears together from many lands and gave them this their own; Who has guided them from generation to generation; Who has wondrously delivered them from the dangers that beset them … [and] conscious of our responsibility towards God and man … the people of the Republic of South Africa acknowledge the sovereignty and guidance of Almighty God,” and then it continued with its exclusivist and racist prescriptions, for example, “[n]o person shall be qualified to be a senator under this Act unless he is a white person and is a South African citizen (34.d); [n]o person shall be qualified to be a member of the House of Assembly under this Act, unless he is a white person and is a South African citizen (46.c),” Constitution of the Republic of South Africa, Act 32 of 1961.  For example, when ecumenical leaders issued the so-called Lusaka Statement in May 1987, declaring the South African government to be an illegitimate government, that action contributed to a new phase in the struggle against apartheid: see, for example, the discussions in Lienemann-Perrin, C. und Lienemann, W., Politische Legitimität in Südafrika. Freiheits-Charta gegen Minderheitsherrschaft (Heidelberg: FEST, 1988).

“Whose Law?” South African Struggles with Notions of Justice

155

selves subjected to the law – as a law unto themselves that may determine whether and to what extent they will obey specific laws.¹² It is, after all, not without very good reason that this dominant legacy of separating legality and morality developed in Western legal theory and practice. In present-day South Africa, this is indeed an important reminder, precisely because it is – whether still, or perhaps again, or perhaps for the first time – in many ways and in many circles a controversial and contested claim. Many South Africans – for a variety of reasons, whether historical or contemporary – seemingly do not respect the law. They seem to regard themselves as somehow above the law. Under conditions like this, it is of great importance to stress that the law is more general than all particular (whether collective or personal and therefore conflicting) moralities. The law guarantees fairness. The law provides security of expectations.¹³ The law promises procedural justice. The law protects freedom(s). The law contributes to peace. The law maintains public order. In short, the law makes human life together possible. In theological language, the law itself is good. Sometimes, it can become necessary and crucially important to stress this seemingly obvious truth. Is this perhaps the reason why Small sounds so hesitant? Should his refrain perhaps be read as a real concern? Is he in fact asking this question as a real question and as a serious and existential question to himself, because he is only too aware that the law is indeed good? Therefore, what abou’ de lô? Is it then in any way justified for him to raise critical concerns about this law? Still, from a theological perspective, one could argue that even this respect and loyalty does not exclude the need for the critical questioning also suggested by Small – but, questioning in terms of what? What could be the norm against which to measure the law? What could be the criteria by which to evaluate the positive law, as it were, to judge the law itself? It somehow seems plausible to suggest that Small may be contemplating four possible answers to this question, concerning what could be the norm by which  The Roman scholar Quintus Horatius Flaccus (65 – 8 BC), known in the English-speaking world as Horace, famously wrote in his Book 3, Ode 24 quid leges sine moribus vanae proficiunt? (“of what avail empty laws without [good] morals?”).  See, for only one example, the ways in which Michael Welker often reflects on the links between law, morality and ethics, already in the Old Testament traditions, but also in later developments and contemporary societies, amongst others in Welker, M., “Moral, Recht und Ethos in evangelisch-theologischer Sicht,” in Ethik und Recht, hg.v. Härle, W. und Preul, R. (Marburg: Elwert, 2002), 67– 82; and Welker, M., “Recht in den biblischen Überlieferungen in systematischtheologischer Sicht,” in Das Recht der Kirche. Band I, hg.v. Rau, G., Reuter, H. R. und Schlaich, K. (Gütersloh: Chr Kaiser/Gütersloher Verlag, 1997), 390 – 414.

156

Dirkie Smit

to judge the law. The rest of this paper will simply raise these four possible answers, all of them well-known and popular, and all four perhaps suggested in interesting and powerful ways by Small’s poem.

3 Moral Law? Perhaps the phrase dey fell in love already suggests a first criterion? Is Small perhaps alluding to a higher morality? Is he perhaps suggesting that there may be a moral law with precedence over any human regulation and prohibition? More specifically, does love trump social and even legal prescriptions and expectations? Is there a law of love, attracting two people to one another, irrespective of the moral notions of their respective communities and of the legal codes in which their communities attempt to organize and protect their moral worldviews?¹⁴ Or is this perhaps, implicitly, a more general reference to the importance of individual freedom, personal choice and subjective expression, which are to be followed rather than social codes and human laws? Or is it perhaps, even more generally, an allusion to the ultimate norm of modern consciousness, namely the freedom of conscience? In the context of the apartheid struggle, it would even make perfect sense to hear here a poetic appeal to conscientious objection, to the ultimate right of the individual to resist, ignore and disobey all immoral authorities and all unjust laws, including what individuals may perceive as the immoral and restrictive codes of religious, moral and legal authorities.¹⁵

 There are of course long and influential philosophical and theological traditions contrasting law and love or justice and love, often giving preference for (forms of) love over against (forms of) law and justice. For a recent discussion of this relationship from the perspective of a Reformed philosopher also well-known and respected in South Africa, and one whose thought actually played a role in the struggle against apartheid, see Wolterstorff, N., Justice in Love (Grand Rapids: Eerdmans, 2011), together with two of his other works: the collection of essays Wolterstorff, N., Hearing the Call. Liturgy, Justice, Church, and World (Grand Rapids: Eerdmans, 2011) as well as the earlier study Wolterstorff, N., Justice. Rights and Wrongs (Princeton: Princeton University Press, 2008).  Particularly in the Calvinist tradition, notions like conscientious objection and the right of resistance have often been present, already beginning with the work of Calvin himself. This was also the case in South Africa and during the time when Adam Small published his work. In fact, he grew up in a home with a strong Calvinist presence and influence. For Calvin on law, see, for example, the authoritative study by Hesselink, I. J., Calvin’s Concept of the Law (Pennsylvania: Pickwick, 1992); for Calvin’s views on creation and nature, see also Schreiner,

“Whose Law?” South African Struggles with Notions of Justice

157

For some theological traditions, all these notions – a higher law of love; individual freedom; freedom of conscience; conscientious objection – may indeed sound plausible and appealing as possible moral criteria by which to measure the legitimacy of all claims to legality. Experience has shown, however, that one should be very careful with these kinds of argument. Seeing the relation between law and morality in these terms can be dangerously misleading. It can be deeply problematic to appeal to one’s own freedom over against the law. It could be a dangerous temptation to appeal to one’s own conscience over against the law. It can be arrogant to regard one’s own moral insight or one’s own intuitions and feelings as superior sources of moral orientation, carrying more authority for one’s own conduct than the moral codes of community and even the positive law in society. In fact, it is, to a large extent, precisely to counter such arbitrary and often very subjective claims to moral superiority that the tradition identifying legality with legitimacy developed in the first place. The critical issue is once again that all these sources of appeal are just as historically and socially constructed as the laws they claim to critique. This is true of our notions of love. It applies to our understandings of individual freedom. It is the case with our personal moral visions. It is applicable to all our subjective hierarchies of moral values, to our commitments and responsibilities, to the category of discernment which we call our conscience. Therefore, although many religious communities and theological traditions, including major forms of Protestant Christianity, would in principle agree with the theoretical possibility that under extraordinary circumstances it may become necessary for individuals to claim that they have no other choice than political resistance, to the point of conscientious objection and perhaps even civil disobedience, they will also affirm that it is, in practice, always very problematic to discern when such moments have indeed arisen. This is true whether these claims are made in the name of love, personal freedom, inner conviction or conscience.

S. E., The Theater of his Glory (Grand Rapids: Baker Academic Press, 1991). For the difficulties of dealing with the Calvinist tradition, see, for example, Strohm, C., “Methodology in Discussion of ‘Calvin and Calvinism,’” in Calvinus Praeceptor Ecclesiae, ed. Selderhuis H. J., THR 388 (2004), 65 – 105. For the history of rights and resistance in the Calvinist tradition, see Witte, J., The Reformation of Rights. Law, Religion, and Human Rights in Early Modern Calvinism (Cambridge: Cambridge University Press, 2007). For reception of these trajectories in South Africa, see, for example, the work of two influential Reformed theologians: an early study by Durand J. J. F., Die wysgerige grondslae van die ius resistendi by Calvyn (Bloemfontein: Universiteit, 1956), and essays from the time of struggle by Boesak, A. A., Black and Reformed. Apartheid, Liberation, and the Calvinist Tradition (Maryknoll, NY: Orbis, 1984).

158

Dirkie Smit

In fact, in this respect, one could claim that the normal relationship between law and morality is rather the opposite. Law normally trumps personal feelings, individual convictions, and subjective moral visions and values. Law can even fulfil the role of moral education, formation and transformation. Morality changes, and very often it changes as a result of legal changes. Experience shows that forms of racism, sexism, homophobia, xenophobia, prejudice and discrimination, disregard for human dignity, violations of human rights, slavery, abuse, and, in fact, many practices of corruption, nepotism and exclusion often first have to be prohibited by law before a major part of the population will change their minds to accept and share these convictions. In this sense, living in a city with just laws is indeed an important form of moral formation – as the Greek philosopher already taught.¹⁶ In other words, moral assumptions that are kept alive in groups by way of culture and religion, through tradition, custom and authority, may, therefore, in fact be challenged, undermined and transformed through changes in the law. Thereby, laws may in fact help to make moral communities and even societies more moral. The direction may thus also be the opposite, in that law serves as a critical challenge to particular moralities. Both collective and personal moralities may be challenged by law – to become moral in a different way. Morality, for this reason, can show itself precisely in respect and loyalty to the law, and not in claiming superiority over the law – but again, critics would rightly counter, in the spirit of Adam Small, that this will always depend on the moral quality of the specific law itself, on the legitimacy of the particular laws. So, what or who guarantees the legitimacy of what is legal? In recent years, the social philosopher Jürgen Habermas of course raised these questions in interesting ways when he applied his approach called communicative (or discourse) ethics to the field of morality and law. Arguing that legality cannot simply claim legitimacy, but indeed needs forms of legitimation, he considered possible solutions for this question.¹⁷  For a recent statement of this conviction, that laws can form conscience and character, see, for example, the argument by the legal scholar Stout, L. A., Cultivating Conscience: How Good Laws Make Good People (Princeton: Princeton University Press, 2010).  The literature is vast and widely known: see, for example, already Habermas, J., Law and Morality, The Tanner Lectures on Human Values (Harvard University, 1st and 2nd October 1986). He laid the ground-work for the ethics of discourse (or communicative ethics) in English in Moral Consciousness and Communicative Action (Cambridge: Polity Press, 1990). In 1993, his first book devoted solely to discourse ethics appeared in English, Justification and Application. Remarks on Discourse Ethics (Cambridge: MIT Press, 1993). For implications for legal thought, see especially his Between Facts and Norms (Cambridge: Polity Press, 1996), as well as his “Post-

“Whose Law?” South African Struggles with Notions of Justice

159

Within democratic societies, many would argue that legitimacy depends on the full and public participation of informed people in the determination of what is legal, of what is law. But is the legitimacy given simply by the fact that everyone has participated in the process, or does it also depend on the content of their contributions? Is legitimacy simply the result of true democratic participation and decision-making, in other words, based on procedural fairness and full participation? Or is it also dependent on the content of the public debates and decisions, on the substance, the actual results of conversation in the public sphere? Could correct procedures and the opinion of the majority still lead to unjust conclusions? On this point, there remain major differences of opinion. In Small’s words, Diana se mense sê/Martin se mense sê/almal die mense sê, yet still the critical question remains: what you tol’/what God tell/what man tell/what devil tell/ what you tol’? In other words, is it sufficient that everyone speaks and participates, or is the question also what they say? Is the question also, on whose behalf do they speak and in whose interest? Is the question also whether what they say is indeed correct, moral, just? Should laws, produced by the group and reflecting the will of the group, whether it is the majority, the masses, the popular opinion, the people or die volk, be regarded as moral and just, simply because of the democratic process and majority decisions? Or should even the laws of public opinion be subjected to criteria of substance and content? Many religious communities and theological traditions will be inclined to claim that justice is indeed more than merely formal and procedural – but then, whose justice?

4 Just law? Is there perhaps – as a second possible answer – some higher justice against which all law and human justice should and could be measured? And is it then possible to agree on the nature and content of this higher justice? Could such higher justice perhaps be the criterion against which to judge the justice

script to Between Facts and Norms,” in Habermas, Modernity and Law, ed. Deflem, M. (London: Sage, 1996). For a South African discussion of some implications of Habermas’s views on the structural transformation of the public sphere for church and theology, see Smit, D. J., “Notions of the Public and Doing Theology,” International Journal of Public Theology, 1, nos. 3-4 (2007), 431– 454.

160

Dirkie Smit

of human practices of justice – for example in the case of Diana and Martin? Watte’ lô would this then be?¹⁸ For a very long time, the tradition that claimed to answer this question affirmatively, and therefore the main alternative position to positive law, has been the natural law tradition. Already in classical philosophical forms, and indeed in many and diverse secular versions, this was and remains the case. This tradition has of course also been very influential in religious and theological guise, especially in Catholic moral thought, but so too in Protestant variants. In short, this tradition somehow claims that there is access to an understanding of justice through human nature and rational thought.¹⁹ In apartheid South Africa, there were powerful appeals to a so-called “dieper reg,” for example by another respected author, scholar and public intellectual, N P Van Wyk Louw, resulting in major public and political controversies.²⁰ Accord For some examples of theological treatments of these questions from the flood of material available, see, amongst others: Brady, B. V., The Moral Bond of Community. Justice and Discourse in Christian Morality (Washington, D.C: Georgetown University Press, 1998); Dabrock, P., Jähnichen, T., Klinnert, L. und Maaser, W., Hg., Kriterien der Gerechtigkeit (Gütersloh: Kaiser, 2003); Härle, W. und Preul, R., Hg., Ethik und Recht (Marburg: Elwert, 2002); Hardmeier, H. V. C., Kessler, R. und Ruwe, A., Hg., Freiheit und Recht (München: Chr. Kaiser, 2003); Herms, E., “Theologische Ethik und Rechtsbegründung,” in Ethik und Recht, hg.v. Härle, W. und Preul, R. (Marburg: Elwert, 2002): 13 – 40; Lebacqz, K., Six Theories of Justice (Minneapolis: Augsburg Publishing House, 1986); Lebacqz, K., Justice in an Unjust World (Minneapolis: Augsburg Publishing House, 1987); Lienemann, W., Gerechtigkeit (Göttingen: Vandenhoeck & Ruprecht, 1995). For some philosophical discussions, see, for example: Höffe, O., Gerechtigkeit (München: C.H. Beck, 2001); Horn, C. und Scarano, N., Philosophie der Gerechtigkeit (Frankfurt: Suhrkamp, 2002); Ricoeur, P., The Just (Chicago: Chicago University Press, 2000); Walzer, M., Spheres of Justice (New York: Basic Books, 1983).  For defence of the natural law position, see, for example, Porter, J., Natural & Divine Law (Grand Rapids: William B Eerdmans, 1999). On rational access to such understandings of justice, see also the important and influential perspectives represented by Rawls, J., “The Idea of Public Reason Revisited,” in The Law of Peoples (Cambridge: Harvard University Press, 1999).  Van Wyk Louw, N. P., Die dieper reg (Kaapstad: Nasionale Pers, 1947). The authoritative South African literary scholar J. C. Kannemeyer provides the following background information: “[Van Wyk Louw wrote] his choric drama Die dieper reg [The Greater Right] … in 1938 for the festival that marked the centennial of the Great Trek. The Great Trek was a large-scale migration of frontier farmers into the interior in the nineteenth century and was largely the result of friction between the colonists in the Eastern Cape and the Xhosa, an attendant series of border wars, and dissatisfaction with the British Government, which, though it had taken firm control of the Cape in 1806, had failed to provide security on the eastern frontier. Van Wyk Louw’s play is set in the Hall of Eternal Righteousness to which the Voortrekkers have to go after death to hear judgement on their deeds. Awaited by the Heavenly Choir, the Voortrekkers, led by their Intercessor, come on stage to face the Prosecutor challenging the validity of their actions. After the pleas, the lamentations and the prayers, the Voice of Righteousness delivers his judgement. The whole Great

“Whose Law?” South African Struggles with Notions of Justice

161

ing to such appeals, claims can be made to a deeper, a more basic, a more fundamental notion of justice – which could then serve as a criterion of justice against which to evaluate any positive law. Again, however, this approach to deal with the relation between law and justice – irrespective of whether we appeal to “higher” justice or “deeper” justice – also shows itself to be deeply problematic too. Especially from the perspective of recent communitarian thought, it has been argued that notions of nature and reason are never as general, universal and a-historical as they may superficially seem, and may sometimes even claim for themselves. They are inevitably always socially and historically determined, embedded in particular traditions, related to specific communities, and, accordingly, only natural and reasonable according to some. From such a perspective, the question of our access to knowledge of such higher justice there-

Trek with all its deeds and motives is expressed as a lyrical and visionary drama which reaches its climax in the choric song directed to South Africa, the ‘wide and woeful land, alone / under the great southern stars.’” (From Kannemeyer’s “N.P. van Wyk Louw, D.J. Opperman and the Afrikaans Literary Tradition,” a lecture given at the Adam Mickiewicz University in Poland in June 1999 and available at http://scholar.sun.ac.za/handle/10019.1/44897. The work, with its notion of the deeper justice and the way it was applied to the Afrikaner people, became very controversial at the time. Van Wyk Louw’s own (shifting) ideas about justice – for example, with the question of whether it is worthwhile for a nation to exist in injustice, or better to disappear – remained deeply emotional and contested, over many years. He also raised such questions in other publications, whether poems, popular pieces or scholarly reflections, for example in his Lojale verset (Kaapstad: Nasionale Pers, 1939), Liberale nasionalisme (Kaapstad: Tafelberg, 1958) and his equally controversial Die pluimsaad waai ver, of, Bitter begin (Kaapstad: Human & Rousseau, 1972). As probably the foremost public intellectual in the country at the time, he raised the critical question of whether “survival with justice” (voortbestaan in geregtigheid) was indeed possible – and in many ways this became the most important question haunting Afrikaner intellectual and public life for decades. “What moral right has a small nation to wish for survival as a nation?” asked Van Wyk Louw, and he spoke about a people standing “before the last temptation: to believe that bare survival is preferable to survival in justice. This is the lasting temptation awaiting a volk in their desert days … I believe that this is the … ‘dark night of the soul’ in which a volk says: I would rather perish than survive through injustice … How can a small volk survive for long if it has something hateful and evil for the best within – and without – it?” (Translated from his Versamelde Prosa (Kaapstad: Tafelberg, 1986)). Finally, this was the subversive question and the nagging inner doubt of apartheid supporters: Is our attempt to secure collective survival really an attempt to practise justice, in public life, or is it only a selfish striving? Is survival with justice, voortbestaan in geregtigheid, possible – or not? This became the controversy over decades. In 1975, Adam Small himself translated and published a collection of Van Wyk Louw’s poems, including this climactic chorus from Die dieper reg, of which he translated the first line as “Oh wide and sad land” – and he used this line as title of the collection, Small, A., Oh Wide and Sad Land: Afrikaans Poetry (Cape Town: Maskew Miller, 1975).

162

Dirkie Smit

fore always remains a question of whose justice, which rationality, in the wellknown words of the moral philosopher Alasdair MacIntyre.²¹ Indeed, watte’ lô, which law, whose law? Even more problematic is the historical experience that notions of natural law have been used to justify convictions and practices that were later regarded by many as unjust and immoral. The theological and ideological uses of natural law arguments, of orders of creation and providence during the Nazi-period as well as during the apartheid decades in South Africa, remain tragic reminders of this potentially deeply problematic misuse – a misuse of the very notions of nature and reason. Indeed, sê Martin sê Diana/watte’ lô/God’s lô’/man’s lô/devil’s lô/watte’ lô? Many people would even argue – and certainly in contemporary South Africa this remains a widespread conviction – that natural law argumentation is still being used today to justify views and practices of, for example, cultural oppression, gender discrimination and homophobic prejudice, contradicting what these critics themselves would see as die dieper reg, or the higher justice. But then, what is this higher justice? What is this universal content, applicable everywhere and to all? Many would today probably answer by appealing to notions of human dignity²² and human rights.²³  For one statement, albeit a classical one, see only MacIntyre, A., Whose Justice? Which Rationality? (Notre Dame: University of Notre Dame Press, 1988).  For a recent statement in this vein by one of the judges of the first 1994 Constitutional Court of South Africa, see Ackermann, L., Human Dignity: Lodestar for Equality in South Africa (Cape Town: Juta Law, 2013). Now retired, Ackermann argues that human dignity is the key to the constitutional meaning of equality and unfair discrimination. Equality cannot be usefully debated without asking, “Equality of what?”, and the answer, according to him, must be human dignity. He discusses the philosophical and religious roots of the constitutional concept of dignity and shows how, within the inevitable clashes and tensions between rights, a concept of human dignity plays a vital role in resolving such tensions and conflicts. He illustrates some of these issues in a comparative constitutional context, referring to South African, German and Canadian constitutional jurisprudence.  This is, of course, also the basis of the new South African Constitution itself; it rests on the notion of human dignity and develops this in the form of a catalogue of human rights. Human dignity is the very first value mentioned in the first article of the “Founding Principles” (“Human dignity, the achievement of equality and the advancement of human rights and freedoms,” 1 a). An extensive “Bill of Rights” then follows as Sections 7– 39. Once again, human dignity is mentioned right at the beginning of the Bill of Rights, in the first words of Section 7: “This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.” In Section 10, human dignity is then again affirmed, separately: “Everyone has inherent dignity and the right to have their dignity respected and protected,” Constitution of the Republic of South Africa, No. 108 of 1996.

“Whose Law?” South African Struggles with Notions of Justice

163

Of course, again, not everyone would agree. The notion of human dignity may be hard to define, as attempts toward incorporating this in a constitution for Europe showed (and perhaps also legal debates in Germany over the interpretation of Article 1.1 GG?). Perhaps the reality is rather that the broad consensus about the content of human rights does not reflect complete agreement, but, in fact, internal tensions and continuing debate.²⁴ In fact, what seems to many like a consensus is by far not universal, but meets with resistance in many parts of the world, or at least with divergent understandings of human rights. What seems to be obvious and universal may only seem so to some. To make things even more complicated, what may now seem like a self-evident and rational expression of natural justice to some is, in reality, of course also the historical outcome of very particular conflicts.²⁵ Even to those who today confess to them, they were not always as self-evident and rational, as natural and universal as today. Is it, for example, not fair to say that, when the new German Constitution after the Nazi atrocities posited in its first article that the dignity of a human being is inalienable (Bonn 1949, unantastbar, cannot be violated), the lawmakers were, after all, not merely making some objective observation of fact, but were rather confessing their deeply held moral commitment for their future life together? Is it not true that they confess that human dignity should be inalienable? In reality, is human dignity not being violated and alienated all the time?²⁶ So, even people committed to this understanding of justice are not necessarily convinced by claims based on natural law and universal reason. But, on what then could this criticism be based?

 See, for example, the well-known study by Huber and Tödt from the time when the notion of human rights was not yet as widely accepted in ecumenical circles, and their acknowledgement of the important and creative internal tensions within the human rights approach, Huber, W. und Tödt, H. E., Menschenrechte. Perspektiven einer menschlichen Welt (Berlin: Kreuz Verlag, 1977).  See, for example, only the recent argument by Hans Joas about the genealogy of human rights, built on several important historical case-studies of what he calls sacralization, cf. his article in this volume, 25 – 38.  See, for example, only the illustrations provided by Wolfgang Huber of the ways in which human dignity is indeed violated, in Huber, W., Die tägliche Gewalt. Gegen den Ausverkauf der Menschenwürde (Freiburg: Herder, 1994), including a chapter with a provocative title pointing to that tension.

164

Dirkie Smit

5 Divine Law? Could the – third – alternative be that true morality or higher justice is somehow founded on God’s own revelation or will? Should human laws perhaps be expressions of, and therefore measured by, God’s lô? For many religious traditions this is indeed the tempting answer; for some it may even seem self-evident and obvious. With the present resurgence of religion, and the accompanying growingly confident and self-assured claims from many religious groups and communities, this response is indeed increasingly common, popular and challenging. It is challenging because it is such a deeply problematic response. In his study of Moses’ legacy, Friedrich Wilhelm Graf for example analyzed the nature and implications of these contemporary challenges for democratic and pluralist societies. Again, the problems are obvious. Merely the fact of having different religious communities with diverse understandings of divine law and revelation in the same pluralist society calls – at least according to democratic philosophical and legal traditions – for ways of separation between legality, which is universal, fair, procedural and can guarantee peace, on the one hand, and the claims of particular moral and religious views, on the other hand. Gottes Gesetz gibt es nur im Plural, Graf rightly claims, and that, therefore, presents the challenge, not the solution.²⁷ Many historical and contemporary conflicts originate in the unwillingness of religious communities to accept this separation, and in their longing to embody their own religious morality in the law of society itself, perhaps because they are the majority, perhaps because only they know the truth. The need for separation becomes even more obvious in light of many historical cases where culture and religion were ideologically used to justify practices, policies and even legal systems embodying what most others would regard as injustice and oppression – as What abou’ de lô reminds us. In South African society today, these tensions are most certainly alive and extremely challenging. Are the courts and the judicial system, based on the democratic Constitution, with its commitment to human dignity and its wide-ranging catalogue of human rights, indeed “the white man’s way,” as the President him-

 See Graf, W., Moses Vermächtnis. Űber göttliche und menschliche Gesetze (München: Verlag C. H. Beck, 2006).

“Whose Law?” South African Struggles with Notions of Justice

165

self indicates when he speaks freely and from the heart, a way not possible to follow for “Africans [who] cannot change to be something else”?²⁸ In a powerful way, the poem therefore also serves as reminder of the socalled Böckenförde thesis, the well-known claim by the former German constitutional judge that free and secular societies live from assumptions which they cannot guarantee themselves.²⁹ This thesis was also the theme of the now famous conversation between Habermas and (then still) Cardinal Ratzinger.³⁰ In important ways, they basically agreed. Democratic, free, pluralist, secular societies are based on presuppositions without which they cannot function or survive – including visions, values, commitments, responsibilities, virtues and people. Is this not, after all, why Small wrote this poem? Why he published Kitaar my kruis? Together with his deep respect for law, is there not an awareness that criticism of existing, positive law can become necessary? Is this awareness not based on deep convictions about humanity, morality, justice, religion and faith? Does this not ultimately motivate his critique, his protest? Is the poem not born from the hope that such protest could make a difference, that society

 According to a press report from the South African Press Association (SAPA) of 2nd November 2012, “African problems are better solved by African traditional justice institutions, South African media on Friday quoted President Jacob Zuma as saying. ‘Let us solve African problems the African way, not the white man’s way,’ he was quoted … telling traditional leaders. Zuma spoke as the Traditional Courts Bill, aimed at empowering local chiefs to act as judge, prosecutor and mediator, with no legal representation and no appeals allowed, has been submitted to parliament. Critics of the bill, including the minister for women’s affairs Lulu Xingwana, say the proposed law takes people back to the ‘dark ages’. Activists argue that it creates a separate, second-class justice system for rural communities, where women have fewer rights. Zuma urged the traditional leaders: ‘Let us not be influenced by other cultures and try to think the lawyers are going to help …We are Africans. We cannot change to be something else.’”  The literature on the Böckenförde thesis is overwhelming, since so many social commentators take their point of departure in his claim. See, for example, only Graf, W., Moses Vermächtnis. Über göttliche und menschliche Gesetze (München: Verlag C.H. Beck, 2006) and Welker, M., “Wovon der freiheitlichen Staat lebt. Die Quellen politischer Loyalität im spätmodernen Pluralismus,” in Freiheit verantworten. FS für Wolfgang Huber zum 60. Geburtstag, hg.v. Reuter H. R., u. a. (Gütersloh: Kaiser, 2002), 225 – 242.  For the original discussion, see Habermas, J. and Ratzinger, J., The Dialectics of Secularization (San Francisco: Ignatius Press, 2007). Once again, the literature is overwhelming; see, for example, only Horster, D., Jürgen Habermas und der Papst (Bielefeld: Transcript Verlag, 2006) and Bedford-Strohm, H., “Nurturing Reason: The Public Role of Religion in the Liberal State,” NGTT 48, no.1 (2007), 25 – 41. On the internet available as http://hdl.handle.net/2263/5237, a public lecture given at the Stellenbosch Faculty.

166

Dirkie Smit

could be renewed, that justice could be better served? Is it not a protest against law in the name of – something?³¹

6 Political Theology? For this reason, there may perhaps also be a fourth possibility, hidden in the way in which Small gives a powerful twist to his tale when Diana and Martin commit suicide – obviously as result of human laws, after all, dey go to jail for their love. What exactly does this suicide suggest? How is their suicide related to law and to justice? One is reminded of the issues raised by the legal scholar Carl Schmitt in what he called “political theology.”³² Recent years saw a widespread revival of these ideas in the English-speaking world.³³ Paul Kahn, director of the Center for Human Rights at Yale Law School, for example developed the relevance of these issues in his 2011 monograph called Political Theology. Four New Chapters on the Concept of Sovereignty. ³⁴

 For an influential discussion of these issues from a Reformed perspective, see also, for example, Forrester, D. B., Christian Justice and Public Policy (Cambridge: Cambridge University Press, 1997).  See Schmitt, C., Political Theology. Four Chapters on the Concept of Sovereignty (Chicago: University of Chicago, 2005), but also some of his related works, including, for example: Schmitt, C., Political Theology II. The Myth of the Closure of Any Political Theology (Cambridge: Polity Press, 2008); Schmitt, C., The Leviathan in the State Theory of Thomas Hobbes. Meaning and Failure of a Political Symbol (Chicago: University of Chicago, 2008); Schmitt, C., The Concept of the Political. Expanded Edition (Chicago: University of Chicago, 2007); and Schmitt, C., Legality and Legitimacy (Durham: Duke University Press, 2004).  See, for example, the introductory Strong, T. B., “Carl Schmitt: Political Theology and the Concept of the Political” in Political Philosophy in the Twentieth Century, ed. Zuckert, C. H. (Cambridge: Cambridge University Press, 2011), 32– 43, as well as Meier, H., The Lesson of Carl Schmitt. Four Chapters on the Distinction between Political Theology and Political Philosophy. Expanded Edition (Chicago: Chicago University Press, 2011). Schmitt’s work is often used again in discussions concerning earlier authors like Benjamin and Taubes, or in the work of contemporary philosophers like Agamben, Critchley and Zizek. See, for example, only Taubes, J., The Political Theology of Paul (Stanford: Stanford University Press, 2004) or De Wilde, M., “Violence in the State of Exception: Reflections on Theologico-Political Motifs in Benjamin’s ‘Critique of Violence,’” in Political Theologies. Public Religions in a Post-Secular World, ed. De Vries H. and Sullivan, L. E. (New York, Fordham University Press, 2006), 188 – 200. For a comprehensive overview of Schmitt’s life and work, see Mehring, R., Carl Schmitt. Aufstieg und Fall. Eine Biographie (München: C.H. Beck, 2009).  Kahn, P. W., Political Theology. Four New Chapters on the Concept of Sovereignty (New York: Columbia University Press, 2011); also, on the same theme, Kahn, P. W., “A Political Theology for

“Whose Law?” South African Struggles with Notions of Justice

167

The famous opening line of Schmitt’s work was “[s]overeign is he who decides on the exception.” According to Kahn, all three notions here are of crucial importance, namely sovereign, decision and exception. This line stands in direct contrast to the foundation of liberal political thought, namely, “The judge is he who applies the norm.” These two propositions, he says, describe competing political imaginaries. The second proposition captures the imagination of ordinary life in the modern, liberal State, while Schmitt’s proposition describes an entirely different imaginary. At stake, Kahn argues, is what we ultimately believe, what we hold sacred, and what kind of sacrifices are required in our political imaginary. Liberal politics and the rule of law, he argues, far from being universal and a-historical, also call for faith, develop notions of the sacred, and, in crises, ask for sacrifices. Political theology – not in the pre-modern and prescriptive sense, but in this new and descriptive sense – holds that there may be moments when decisions are called for that overrule the rules, if necessary by way of sacrifice, of which the ultimate form may be suicide. In such cases, suicide may be the final decision for freedom in the name of what is believed to be sacred.³⁵ Is this perhaps what Small is alluding to – to suicide as final acts of freedom and authenticity in the name of what is believed to be sacred, which becomes, in that moment, a higher calling than servile obedience to the rule of so-called universal law (which, after all, is itself also the product of precisely such sovereign decisions and actions in history)? Are Diana and Martin perhaps acting sovereignly in their decision to commit suicide, thereby freely deciding the exception, defying the existing law and establishing a new justice? Does their action reveal the true nature of the political? Since Kahn argues his case – for the presence of political theology today – specifically with a view to so-called American exceptionalism (where political

a Civil Religion,” ReligioWest, Robert Schumann Centre for Advanced Studies, European University Institute (January 2012), 1– 27.  This is also the thrust of much of the work of Georgio Agamben, in which allusions to the work and the central ideas of Schmitt about the state of emergency abound; see, for example, particularly Agamben, G., State of Exception (Homo Sacer II. 1) (Chicago: Chicago University Press, 2005), but also Agamben, G., Homo Sacer. Sovereign Power and Bare Life (Stanford: Stanford University Press, 1995), Agamben, G., Remnants of Auschwitz: The Witness and the Archive (Homo Sacer III) (New York: Zone Books, 2002), Agamben, G., The Sacrament of Language: An Archaeology of the Oath (Homo Sacer II. 3) (Stanford: Stanford University Press, 2008), Agamben, G., The Kingdom and the Glory: For a Theological Genealogy of Economy and Government. (Homo Sacer II. 2) (Stanford: Stanford University Press, 2007) and even his work on Paul, namely Agamben, G., The Time That Remains. A Commentary on the Letter to the Romans (Stanford: Stanford University Press, 2005).

168

Dirkie Smit

notions of national security can more easily challenge the rule of law as last word), in deliberate contrast to the experience of European citizenship (where the rule of law seems more to be taken for granted), it is probably not as relevant for German discussions today, but it most certainly is of crucial importance for contemporary South Africa debates. In often remarkably contradictory ways, South Africans are today debating the precedence of the Constitution, the standing of the constitutional court, the neutrality of the judiciary, and the composition and power of the legal system and the courts over against political ideals and private interests. Some feel that the courts are misused for political purposes. Some complain that human rights are used to protect criminals. Some argue that justice is biased, even racist. Some claim publicly that they are willing to kill in order to keep their leaders out of court when they are accused of crimes and corruption. Some are clearly willing to risk their own lives resisting public order, the legal system and the police for the sake of what they believe – as the whole country has again tragically witnessed over the last few weeks. Clearly, in many of these controversies, more is at stake than merely the failure of the judiciary and the legal system as a whole to deliver what it is supposed to do. At stake is also the political imaginary, the very nature of the legal system – the faith, the sacredness and the sacrifices involved.³⁶ So, why did Martin and Diana die? Suicide is obviously not against human laws – but what about divine law, what about religious sensitivity and morality? Do many religious traditions not regard suicide as violation against the divine gift of life? Martin and Diana died for de lô – but in which way? For which law did they die? Is this not perhaps – given Small’s own background³⁷ – a deliberately Christian allusion? Is it without reason that almal die mense sê/o God behoed? When human laws and religious morality fail them, is suicide not an ultimate act of trust, in which they thrust themselves on the divine judgment and promises of justification, since self-saving human obedience has indeed become

 See the central thesis about the genealogy of human dignity and rights in Joas, H., The Sacredness of the Person. A New Genealogy of Human Rights (Washington, D.C.: Georgetown University Press, 2013).  Small’s mother was Muslim, but his father was from the Calvinist Christian faith and he grew up on a mission station, where his father was a teacher in a one-person school for farm workers. Christian notions and directly Biblical motifs were very strongly present in his earlier work. When Basil Moore later edited the first work on black theology in South Africa, immediately banned in the country, Adam Small was in fact one of the contributors: see Moore, B., Black Theology. The South African Voice (London: C. Hurst, 1973).

“Whose Law?” South African Struggles with Notions of Justice

169

impossible?³⁸ Is suicide then not the ultimate plea and act of trust that God behoed? Is this not perhaps the ultimate decision and act of freedom and authenticity, claiming that there is something more sacred than obedience to the rule of law, something justifying their ultimate sacrifice? Is this not a dramatic illustration of political theology in the contemporary sense of the word? Expressed theologically, is Small perhaps raising the question of whether, for Christian faith, the complex relationship between reg (Recht, law) and geregtigheid (Gerechtigkeit, justice) is only properly considered when their relation to regverdiging (Rechtfertigung, justification) also comes into view, and notions like justification, grace, unconditional acceptance, forgiveness and radically new affirmation are taken into consideration? The experiences including the controversies and the continuing conflicts about the South African Truth and Reconciliation Commission still offer one dramatic demonstration of the crucial importance of these questions – and of the differences between judicial and theological, between legal and religious understandings of the same notions.³⁹

 If the command not to kill is interpreted as a prohibition also on the taking of one’s own life, can the act of disobeying this command and indeed taking one’s own life not perhaps also be understood as an ultimate form of Luther’s advice to “sin boldly,” as in his letter of August 1521 to Melanchthon from the Wartburg: “Be a sinner and sin boldly, but believe and rejoice in Christ even more boldly. For he is victorious over sin, death, and the world.”? Luther’s Works. American Edition, vol. 48, 281– 282. Could this not be regarded as the ultimate acknowledgement that obedience to the law cannot save us and, therefore, the ultimate form of trust in God’s justification?  In the diverse and controversial responses to the work of the Truth and Reconciliation Commission, it was repeatedly stressed that truth, reconciliation and justice in legal, political and public discourses and practices cannot simply be equated with truth, reconciliation and justice in the discourses of faith, theology and the Church. (Spiritual) forgiveness is not similar to (judicial) amnesty. That is the reason why no remorse or confession of guilt was expected for receiving amnesty. The Commisson in fact attempted to carefully develop and explain its own notions of truth, of reconciliation and of justice, and, in many ways – too many, according to many critics – their notions were indeed informed by religious, and particularly Christian, understandings, but they could never simply be equated. See, for example, Mouton, E. and Smit, D. J., “Shared Stories for the Future? Theological Reflections on Truth and Reconciliation in South Africa,” Journal of Reformed Theology 2, no. 1 (2008), 40 – 62.

170

Dirkie Smit

7 Both Loyalty and Reform? Perhaps one could conclude that, from the perspective of Protestant Christianity, attitudes of both loyalty (Rechtsloyalität) and reform (Rechtsreform) should be regarded as important. Respect and loyalty represent the insight of major legal developments in modernity, underlining the importance of positive law. Critique and reform represent the insight of different critical traditions, whether in the name of moral systems like natural law, religious traditions, theories of justice or fundamental democratic assumptions that must continuously be recovered and protected. Taken together, this may call for forms of legal ethics like Wolfgang Huber’s “critical theology of law.”⁴⁰ At least for the Reformed tradition, such an approach to law and morality is central. Calvin himself was a legal scholar and deeply concerned with questions of law and justice. He emphasized obedience, respect and loyalty but simultaneously also freedom, renewal and even the possibility of civil disobedience. The first Reformed ethics in history was written by a legal scholar, for the purpose of social and legal reconstruction during times of social chaos and threatening disorder.⁴¹ Christian faith does not have its own theory of justice.⁴² Based on the witness of the biblical traditions of both the Old and New Testaments, it rather affirms legal theories and practices that seem to support central Christian perspectives, and critiques legal theories and practices whenever they seem to contradict central Christian perspectives.⁴³ Throughout history, this meant that Christian faith always engaged with the legal and moral theories and practices of different times and places, sometimes affirming, sometimes critiquing. The challenge is to discern, to know what to do

 Huber, W., Gerechtigkeit und Recht. Grundlinien christlicher Rechtsethik (Gütersloh: Chr. Kaiser, 1996/2006).  See the detailed account in Strohm, C., Ethik im frühen Calvinismus: Humanistische Einflüsse, philosophische, juristische und theologische Argumentationen sowie mentalitätsgeschichtlikche Aspekte am Beispiel des Calvin-Schülers Lambertus Danaeus (Berlin: De Gruyter, 1996).  See, for example, the careful historical argument in Graf, F. W., “Protestantismus und Rechtsordnung,” in Kulturelle Identität als Grund und Grenze des Rechts. Archiv für Rechts- und Sozialphilosophie, Beiheft Nr. 113, hg.v. Dreier, H. und Hilgendorf, E. (Stuttgart: Franz Steiner Verlag, 2008), 129 – 161.  For a fuller version of this argument, see Smit D. J., “On Social and Economic Justice in South Africa Today. A Theological Perspective on Theoretical Paradigms” in Theories of Social and Economic Justice, ed. van der Walt, A. J. (Stellenbosch: Sun Press, 2005), 225 – 238.

“Whose Law?” South African Struggles with Notions of Justice

171

when. This would often lead to major disagreements in both Church and society – and at least in contemporary South Africa, that is indeed still the case. We continue to struggle with notions of justice.⁴⁴

Bibliography Ackermann, L. Human Dignity: Lodestar for Equality in South Africa. Cape Town: Juta Law, 2013. Agamben, G. The Sacrament of Language: An Archaeology of the Oath (Homo Sacer II. 3). Stanford: Stanford University Press, 2008. Agamben, G. The Kingdom and the Glory: For a Theological Genealogy of Economy and Government (Homo Sacer II. 2). Stanford: Stanford University Press, 2007. Agamben, G. The Time That Remains. A Commentary on the Letter to the Romans. Stanford: Stanford University Press, 2005. Agamben, G. State of Exception (Homo Sacer II. 1). Chicago: Chicago University Press, 2005. Agamben, G. Remnants of Auschwitz: The Witness and the Archive (Homo Sacer III). New York: Zone Books, 2002. Agamben, G. Homo Sacer. Sovereign Power and Bare Life. Stanford: Stanford University Press, 1995. Barth, K. Community, State, and Church. Gloucester, MA: Peter Smith, 1968. Bedford-Strohm, H. “Nurturing Reason: The Public Role of Religion in the Liberal State.” NGTT 48, no. 1 (2007), 25 – 41. On the internet available as http://hdl.handle.net/2263/5237. Boesak, A. A. Black and Reformed. Apartheid, Liberation, and the Calvinist Tradition. Maryknoll, NY: Orbis, 1984. Brady, B. V. The Moral Bond of Community. Justice and Discourse in Christian Morality. Georgetown: Georgetown University Press, 1998. Constitution of the Republic of South Africa, No. 108 of 1996. Dabrock, P., Jähnichen, T., Klinnert, L. und Maaser, W., Hgg. Kriterien der Gerechtigkeit. Gütersloh: Kaiser, 2003. De Villiers, E. en Kinghorn, J., reds. Op die skaal: gemengde huwelike en ontug. Kaapstad: Tafelberg, 1984. De Wilde, M. “Violence in the State of Exception: Reflections on Theologico-Political Motifs in Benjamin’s ‘Critique of Violence.’” In Political Theologies. Public Religions in a

 During the discussion following the lecture, it was obvious that many participants were not satisfied with such an approach that seems to leave the answer to the question open and that seems to respect an element of value in all four different approaches, without opting for one or reducing them to a single answer. Some members of the audience indeed argued that human dignity and human rights are enough and could serve as universal points of departure. Others argued for forms of moral and even eschatological approaches. Some were convinced that the notion of justice itself offers enough perspective to serve as the internal source of critique in historical situations such as the one of apartheid South Africa, in which Adam Small worked.

172

Dirkie Smit

Post-Secular World, edited by de Vries, H. and Sullivan, L.E. New York: Fordham University Press, 2006, 188 – 200. Durand, J. J. F. Die wysgerige grondslae van die ius resistendi by Calvyn. Bloemfontein: Universiteit, 1956. Forrester, D. B. Christian Justice and Public Policy. Cambridge: Cambridge University Press, 1997. Graf, F. W. Moses Vermächtnis. Über göttliche und menschliche Gesetze. München: C. H. Beck, 2006. Graf, F. W. “Protestantismus und Rechtsordnung.” In Kulturelle Identität als Grund und Grenze des Rechts. Archiv für Rechts- und Sozialphilosophie, Beiheft Nr. 113, herausgegeben von Dreier, H. und Hilgendorf, E. Stuttgart: Franz Steiner Verlag, 2008, 129 – 161. Habermas, J. Between Facts and Norms. Cambridge: Polity Press, 1996. Habermas, J. “Postscript to Between Facts and Norms.” In Habermas, Modernity and Law, edited by Deflem, M. London: Sage, 1996. Habermas, J. “Justification and Application. Remarks on Discourse Ethics.” Cambridge: MIT Press, 1993. Habermas, J. Moral Consciousness and Communicative Action. Cambridge: Polity Press, 1990. Habermas, J. Law and Morality. The Tanner Lectures on Human Values, Harvard University, 1st and 2nd October 1986. Habermas, J., and Ratzinger, J. The Dialectics of Secularization. San Francisco: Ignatius Press, 2007. Härle, W. und Preul, R., Hgg. Ethik und Recht. Marburg: Elwert, 2002. Hardmeier, H. V. C., Kessler, R. und Ruwe, A., Hgg. Freiheit und Recht. München: Chr. Kaiser, 2003. Herms, E. “Theologische Ethik und Rechtsbegründung. “ In Ethik und Recht, herausgegeben von Härle, W. und Preul, R. Marburg: Elwert, 2002. Hesselink, I. J. Calvin’s Concept of the Law. Pennsylvania: Pickwick, 1992. Höffe, O. Gerechtigkeit. München: C.H. Beck, 2001. Horn, C. und Scarano, N. Philosophie der Gerechtigkeit. Frankfurt: Suhrkamp, 2002. Horster, D. Jürgen Habermas und der Papst. Bielefeld: Transcript Verlag, 2006. Hund, J. Law and Justice in South Africa. Institute for Public Interest Law and Research, Johannesburg, 1988. Huber, W. Gerechtigkeit und Recht. Gütersloh: Chr. Kaiser, 1996/2006. Huber, W. Die tägliche Gewalt. Gegen den Ausverkauf der Menschenwürde. Freiburg: Herder, 1994. Huber, W. und Tödt, H. E. Menschenrechte. Perspektiven einer menschlichen Welt. Berlin: Kreuz Verlag, 1977. Joas, H. The Sacredness of the Person. A New Genealogy of Human Rights, Washington, D. C.: Georgetown University Press, 2013. Kahn, P. W. Political Theology. Four New Chapters on the Concept of Sovereignty. New York: Columbia, 2011. Kahn, P. W., “A Political Theology for a Civil Religion.” ReligioWest. Robert Schumann Centre for Advanced Studies, European University Institute, January 2012, 1 – 27. Koopman, N. N. “Toward a Human Rights Culture in South Africa. The Role of Moral Formation.” NGTT 48 (2007), 107 – 118. Koopman, N. N. “Holiness and Public Life in South Africa: The Quest for Wholeness, Embrace and Justice.” Colloquium 40, no.2 (2008), 166 – 181.

“Whose Law?” South African Struggles with Notions of Justice

173

Koopman, N. N. “The Common Good and Human Dignity – Some Very Preliminary Remarks.” NGTT 53, suppl. 2 (2012), 31 – 40. Lebacqz, K. Six Theories of Justice. Minneapolis: Augsburg Publishing House, 1986. Lebacqz, K. Justice in an Unjust World. Minneapolis: Augsburg Publishing House, 1987. Lienemann, W., Gerechtigkeit. Göttingen: Vandenhoeck & Ruprecht, 1995. Lienemann-Perrin, C. und Lienemann, W. Politische Legitimität in Südafrika. Freiheits-Charta gegen Minderheitsherrschaft. Heidelberg: FEST, 1988. Louw, N. P., van Wyk. Versamelde Prosa. Kaapstad: Tafelberg, 1986. Louw, N. P., van Wyk. Die pluimsaad waai ver, of, Bitter begin. Kaapstad: Human & Rousseau, 1972. Louw, N. P., van Wyk. Liberale Nasionalisme. Tafelberg, Kaapstad, 1958. Louw, N. P., van Wyk. Die dieper reg – ‘n spel van die oordeel oor ‘n volk. Kaapstad: Nasionale Pers, 1947. Louw, N. P., van Wyk. Lojale Verset. Kaapstad: Nasionale Pers, 1939. MacIntyre, A. Whose Justice? Which Rationality? Notre Dame: University of Notre Dame Press, 1988. Mehring, R. Carl Schmitt. Aufstieg und Fall. Eine Biographie. München: C.H. Beck, 2009. Meier, H. The Lesson of Carl Schmitt. Four Chapters on the Distinction between Political Theology and Political Philosophy. Expanded Edition. Chicago: Chicago University Press, 2011. Moore, B. Black Theology. The South African Voice. London: C Hurst, 1973. Mouton, A. E. J. and Smit, D. J. “Shared Stories for the Future? Theological Reflections on Truth and Reconciliation in South Africa.” Journal of Reformed Theology 2, no.1 (2008), 40 – 62. Porter, J. Natural & Divine Law. Grand Rapids: William B Eerdmans, 1999. Rawls, J. “The Idea of Public Reason Revisited.” In The Law of Peoples. Cambridge: Harvard University Press, 1999. Ricoeur, P. The Just. Chicago: Chicago University Press, 2000. Schreiner, S. E. The Theater of His Glory. Grand Rapids: Baker Academic Press, 1991. Schmitt, C. The Leviathan in the State Theory of Thomas Hobbes. Meaning and Failure of a Political Symbol. Chicago: University of Chicago, 2008. Schmitt, C. Political Theology II. The Myth of the Closure of Any Political Theology. Cambridge: Polity Press, 2008. Schmitt, C. The Concept of the Political. Expanded Edition. Chicago: University of Chicago, 2007. Schmitt, C. Political Theology. Four Chapters on the Concept of Sovereignty. Chicago: University of Chicago, 2005. Schmitt, C. Legality and Legitimacy. Durham: Duke University Press, 2004. Small, A. Kanna, hy kô hystoe. 1965. Reprint, Kaapstad: Tafelberg, 1999. Small, A., Oh Wide and Sad Land: Afrikaans Poetry. Cape Town: Maskew Miller, 1975. Small, A., Kitaar my kruis. Kaapstad: HAUM, 1961. Smit, D. J. “On Social and Economic Justice in South Africa Today. A Theological Perspective on Theoretical Paradigms.” In Theories of Social and Economic Justice, edited by van der Walt, A.J., 225 – 238. Stellenbosch: Sun Press, 2005. Smit, D. J. “”Notions of the Public and Doing Theology.” Int. Journal of Public Theology 1, nos. 3 – 4, (2007): 431 – 454.

174

Dirkie Smit

Stout, L. A. Cultivating Conscience: How Good Laws Make Good People. Princeton: Princeton University Press, 2010. Strohm, C. Ethik im frühen Calvinismus: Humanistische Einflüsse, philosophische, juristische und theologische Argumentationen sowie mentalitätsgeschichtliche Aspekte am Beispiel des Calvin-Schülers Lambertus Danaeus. Berlin: De Gruyter, 1996. Strohm, C. “Methodology in Discussion of ‘Calvin and Calvinism.’” In Calvinus Praeceptor Ecclesiae, edited by Selderhuis, H. J. THR 388 (2004), 65 – 105. Strong, T. B. “Carl Schmitt: Political Theology and the Concept of the Political.” In Political Philosophy in the Twentieth Century, edited by Zuckert, C. H. Cambridge: Cambridge University Press, 2011, 32 – 43. Taubes, J. The Political Theology of Paul. Stanford: Stanford University Press, 2004. Van Wyk, S. “Die groot Small – oor die lewe en werk van Adam Small.” http://www.;litnet.co. za (28 Maart 2006). Van Wyk, S. en Willemse, H., reds. Adam Small, Tydskrif vir Letterkunde 49, no. 1 (Herfs 2012). Vosskuhle, A. “Ist das Öffentliche Wirtschaftsrecht moralisch?” In Wirtschaft im offenen Verfassungsstaat, Festschrift für Reiner Schmidt zum 70. Geburtstag, herausgegeben von Bauer, H., Czybulka, D., Kahl, W., und Vosskuhle, A. München: Beck, 2006, 609 – 626. Walzer, M. Spheres of Justice. New York: Basic Books, 1983. Welker, M. “Moral, Recht und Ethos in evangelisch-theologischer Sicht.” In Ethik und Recht, herausgegeben von Härle, W. und Preul, R. Marburg: Elwert, 2002, 67 – 82. Welker, M. “Recht in den biblischen Überlieferungen in systematisch-theologischer Sicht.” In Das Recht der Kirche. Band I, herausgegeben von Rau, G., Reuter, H.-R. und Schlaich, K. Gütersloh: Gütersloher Verlag, 1997, 390 – 414. Welker, M. “Wovon der freiheitlichen Staat lebt. Die Quellen politischer Loyalität im spätmodernen Pluralismus.” In Freiheit verantworten. FS für Wolfgang Huber zum 60. Geburtstag, herausgegeben von Reuter, H. R., u. a. Gütersloh: Kaiser, 2002, 225 – 242. Witte, J. The Reformation of Rights. Law, Religion, and Human Rights in Early Modern Calvinism. Cambridge: Cambridge University Press, 2007. Wolterstorff, N. Hearing the Call. Liturgy, Justice, Church, and World. Grand Rapids: Eerdmans, 2011. Wolterstorff, N. Justice in Love. Grand Rapids: Eerdmans, 2011. Wolterstorff, N. Justice. Rights and Wrongs. Princeton: Princeton University Press, 2008.

Simanga Kumalo

The Role of the Church in Human Rights in a Democratic South Africa It was the best of times, it was the worst of times, it was the age of wisdom, and it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us….¹ Human rights know no borders.²

1 Introduction The excerpt from Charles Dickens’s famous A Tale of Two Cities captures the time that South Africa and its churches found themselves in or faced from 1994 to date. This is particularly true when one is considering the development of human rights in South Africa and the role of the Church, which was known as being a vibrant and dynamic prophetic community during the days of the struggle. There has been good news with the dawning of democracy, the acceptance of the new Constitution and the setting up of the Section 9 institutions (the Human Rights Commission and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities), which sought the implementation and protection of human rights for all South Africans. However, there have also been embarrassing moments, like the xenophobic attacks on foreign nationals,³ the continuous attacks and killings of gays and lesbians and, most recently, the massacre of striking mine workers at Marikana, where forty five people were mowed down by the police and over seventy five were wounded for engaging in a strike and march for a living wage. Over and above that, South Africa has had over five hundred service delivery riots annually for the past five years. Two million people are involved in these protests every year. The silence of the Church on these tragic incidents, and its sometimes reactionary involvement, points to a Church that has become apathetic and has lost the prophetic dyna-

 Dickens, C., A Tale of Two Cities (London: Chapman and Hall, 1859), 12.  Jenkins, F., HRC Review (International Human Rights Exchange, 2003), 7.  Xenophobic attacks refer to the rampant brutal attacks on foreign nationals by South Africans in 2007, who accused the foreign nationals of taking their jobs, taking their women and committing crime. This violence spread throughout the country, leaving a number of foreign nationals dead, hundreds wounded and thousands feeling unsafe.

176

Simanga Kumalo

mism which it used to have during the struggle against apartheid. The absence and belated response of the Church during national crises in South Africa leads to moments of despair for the majority of the people who look up to it to give leadership on how to deal with the issue of human rights.⁴ So, although the dawning of democracy was a moment of excitement and hope, because the majority of the people have since enjoyed a variety of rights that were denied to them in the previous dispensation, for others, this has proved a moment of despair. For the poor, for homosexuals and for women faced with unwanted pregnancies, South Africa continues to linger in a winter of despair. Frustration with the loss of a spirit of national consciousness, with the loss of solidarity amongst people in the struggle for the common good, and with the turn toward conscious consumerism and rampant materialism was also expressed by President Mandela. He said that: We South Africans have succeeded quite admirably in putting in place policies, structures, processes and implementation procedures for the transformation and development of our country. We are widely recognized and praised for having one of the most progressive constitutions in the world. The solidity of our democratic order, with all of its democracy-supporting structures and institutions, is beyond doubt. Our economic framework is sound and we are steadily making progress in bringing basic services to more and more of our people. It is at the level of what we once referred to as the RDP of the soul that we as a nation and people might crucially have fallen behind since the attainment of democracy. The values of human solidarity that once drove our quest for a humane society seem to have been replaced, or are being threatened, by a crass materialism and pursuit of social goals of instant gratification. One of the challenges of our time, without being pietistic or moralistic, is to re-instill in the consciousness of our people that sense of human solidarity, of being in the world for one another and because of and through others. It is, as Biko did at that particular moment in history, to excite the consciousness of people with the humane possibilities of change … to bestow on South Africa the greatest possible gift – a more humane face.⁵

Mandela, like other leaders, has looked up to the religious community as an important community that can make a contribution to restoring the consciousness needed to re-establish the humanity and commitment of all citizens to the freedom of all people in South Africa. The constant question that is asked in South  It must be noted that the majority of Christians in South Africa profess to be Christian. These form 72 % of the total population. National statistics have time and again concluded that the Church is the most trusted institution in the country, more than any other, with about 81 % of the population declaring their trust in the Church. See Pillay, U., Roberts, B., Rule, S. (etc.), South African Social Attitudes (Cape Town: HSRC Press, 2006), 32.  The Steve Biko Memorial Lectures 2000 – 2008 (The Steve Biko Foundation and Macmillan, 2008), 93.

The Role of the Church in Human Rights in a Democratic South Africa

177

Africa by leaders of the ecumenical movement in the world is “where have all the prophets gone?” So, when one is reflecting on the role of the Church in human rights in South Africa, one does that within the contradicting contexts of the Church, and with its absence, in the struggle for human rights for all. As a pan-Africanist⁶ and Public Theologian, my interest in the issue of human rights is motivated by questions of the interface between religion and human rights in South Africa. Therefore, in this essay, I want to argue that the tension between the Church and those who promote human rights as enshrined in the worldwide-acclaimed progressive Constitution of South Africa is based on the fact that the human rights discourse as a block or package is new for the people of South Africa, especially the Church. Even though the Church engaged in the fight against apartheid, this was easy, because they could see the enemy. It is both complex and abstract for people to identify with human rights, and to be sympathetic towards those who suffer from their denial. Linked to that has been the lack of consultation during the drafting of some of the key constitutional principles of human rights in South Africa. The Bill of Rights enshrined in the Constitution was a result of the Universal Declaration of Human Rights of 1948 and some principles of the Freedom Charter, not a prolonged, broad-based consultation with the people of South Africa. So, for the majority of people, the Constitution is not their document but one imposed on them by both the pro-secular government and legislators. It is not rare to hear people over the radio or preachers in pulpits rejecting the Constitution and dismissing it as unchristian. Marches have been held by religious groups, including the Church, in protest against same-sex relations and abortion. Gay and lesbian clergy have been dismissed by churches.⁷ I argue that in order for the Church in South Africa to embrace human rights, there is a need for proper engagement between the government and the Christian community, through an open process of what I call Critical Reciprocity. In this essay, I shall start with providing, first, a general discussion of human rights within the liberation-theology framework of Christianity. Second, I shall look at some of the contributions of current Christian thinkers in South Africa to the discussion on human rights. Third, I shall discuss the responses of the Church to issues of human rights in South Africa recently. Fourth, using examples of the responses of the church test-cases, I shall identify some key insights that churches need to embrace in their effort to be prophetic as far as human rights are concerned. Then I shall conclude the essay.  Pan-Africanist refers to one who is committed to, and identifies himself/herself with, the experience and aspirations of the African continent and its people.  One example is the case of Rev Ecclesia de Lange, who was dismissed by the Methodist Church when she disclosed her lesbian sexual orientation.

178

Simanga Kumalo

2 The State, Church and Human Rights in South Africa: An On-Going Debate President de Klerk’s ground-breaking announcement in 1990 about his intention to release Nelson Mandela and unban political organizations brought a great deal of confusion to the religious community, especially the Church, because the fight against apartheid had become their agenda, or Magna Carta. Suddenly this was not an issue anymore. The question was, where to now? What is it that they needed to hold as their main mission now apartheid had been dismantled? This caught the Church by surprise; it needed to re-envision its mission, its role in a democratic society and how to relate to a democratic government. It needed to discover its role in the building of a new society with a culture of human rights. In 1992, theologians of the struggle, such as Charles Villa-Vicencio, Jesse Mugambi and John de Gruchy, put forward a theology of reconstruction which proposed that the Church needed to work with government to bring about a new nation in South Africa. Though without intention, this agenda emphasized issues such as development, economic development, reconciliation etc., but there was no emphasis on the role of the Church in the formation, implementation and protection of human rights. However, the ground shifted significantly in 1994, with the transition to a new democracy. Those who had been deprived of basic human rights became the beneficiaries, and the churches celebrated this as an achievement after so many years of work. However, those who had been benefitting from the apartheid government, which had protected their exclusive rights at the expense of the majority, became losers, because now everybody had equal rights that were protected under the new Constitution. At the moment, Christianity within the political process in South Africa presents three pictures. The first is an image of Christianity in South Africa in the public arena, where it is concerned with the liberation and transformation process of the country in all its aspects, including human rights. In this view, Christians, mostly from the mainline church (Catholic, Lutheran, Anglicans, Congregationalists, Quakers, Methodists and Presbyterians), stand on a legacy of having fought against apartheid and being motivated by the message of the gospel derived from texts such as Psalm 24, which refers to the world and people belonging to God, and John 10:10, which talks of Christ having come so that people may have life in its fullness, inferring that they may enjoy all the rights that promote human life. But the old coalitions between religious groups in the fight for human rights dissipated. One reason for this is the fact that religious organizations retreated to their enclaves to try to formulate what it meant to be church-

The Role of the Church in Human Rights in a Democratic South Africa

179

es in a democratic society. They needed to deal with their own divisions and forge unity, and they revisited their theologies and structures so that they would become more inclusive of all races. This took the attention of these churches away from the work of concentrating on human rights, redirecting it to deal with basic ecclesiological issues. As they did this, some churches discovered that they needed to revive their own structures, improve their theology and focus on fundraising, because money that used to come from sympathetic international partners was drying up, so they needed to focus on building their own. Some churches lost key leaders who were recruited by government and private companies to help with leadership there. Linked to that is the fact that new churches and ministries are growing, thus increasing competition and the need for churches in this country to struggle for survival. Mainline churches are struggling to keep themselves alive by growing membership and increasing financial income in order to sustain their work, and thus the social gospel becomes less of a priority. In addition, their struggle to stay open led churches to become more conservative, as they intensified their efforts to form an identity, strengthen their theological convictions and emphasize their uniqueness. Some then reverted to traditional and conservative beliefs which would appeal to the majority of African Christians, such as opposition to homosexuality and abortion, without necessarily questioning their theological beliefs, even though these are in direct conflict with the Bill of Rights. ⁸ It must be noted that the mainline churches have had enough time to reflect on the issue of human rights and on the churches’ role thereafter, in the almost two decades of democracy. Rather, these churches have been caught in the mode of survival in the new democratic South Africa, with its sweeping changes and challenges to the Church in general. The collapse of theological education institutions such as Fedsem has not helped the churches. This has meant that they are without spaces that encourage open theological reflection on critical issues. Even some of the positions and statements that some of the churches have often adopted on controversial issues such as homosexuality, abortion, poverty etc. have not been well thought out. Most of the time, these have been reactionary statements without any proper and substantial research by the leadership of the Church. Second is a picture held by most Pentecostal churches which depicts Christianity in South Africa as part of the global religious obsession with mysteries that are beyond, and that have nothing to do with issues of human rights, but rather with the ABC’s of church function: attendance at church services, build-

 South African Charter of Religious Rights and Freedoms (SACCRRF) (Praetoria, 2012).

180

Simanga Kumalo

ings and burials, and the collection of money. At most, some charity projects might be run, but generally these do not lead to objective justice, freedom and permanent human development. This is the Pentecostal view of Christianity that is rapidly sweeping the continent of Africa. From as early as 1994, when the era of democracy was ushered in in South Africa, there has been an exponential growth of fundamentalist church groups from other parts of Africa and the North Americas. These have no legacy in the struggle against apartheid and are proponents of the prosperity gospel. Members of these churches have nothing to do with the real issues facing the country – a country that is confronted with enormous challenges of nation-building and human rights. Pastors have flooded communities, building huge churches and pitching revival tents, and starting new ministries in every corner of the townships. This is the image of the Church that has become dominant in South Africa, especially in the townships and rural places. These church groups have displayed an image of the Church which is fundamentalist, other-worldly and driven by the quest to promote material success, impose certain religious doctrines that are materialistic and undermine the emphasis on the need for the Christian community to participate in the engendering of a culture of human rights. Sumner Twiss has observed that: Although many analysts insist that there is no necessary connection between religion and human rights, some even arguing that religious rights and duties are inevitably in conflict with human rights, others have proposed that the “sacred” character of the human in human rights theory makes human rights essentially religious. By contrast to those who debate the necessary relation between religion and human rights, an increasing number of human rights analysts and activists have been proposing negotiated connections, on a case-by-case basis, between religious interests and specific human rights issues.⁹

This dominant view of Christianity does not emphasize the idea of a God who serves people with the purpose of establishing and protecting their access to human rights, their human dignity and service to others, but rather it gives a picture of a God who serves opportunists who are concerned about individual success and accumulation of wealth instead of the community, and sometimes naively so, at the expense of the broader community and the national development agenda. Although such groups have the potential to help in the upliftment of the spiritual lives of the people, or to at least start empowerment projects, embracing general principles of human rights that are not controversial, they turn to vocif-

 Chidester, D., “Religion, Globalization and Human Rights,” HRC Quarterly Review. Special Edition in Association with International Human Rights Exchange (April 2002), 77– 80.

The Role of the Church in Human Rights in a Democratic South Africa

181

erously opposing other rights which they deem sinful and against the Bible. These groups have organized themselves into a number of political organizations, amongst them the African Christian Democratic Party (ACDP), which has a significant number of seats in Parliament and is forever opposing what it considers sinful laws that are passed. The third image is that of the African Initiated Churches (AICs), who do not concern themselves with human rights nor talk about the prosperity gospel. They relate their faith and theology to the spiritual and cultural realms. They emphasize the importance of the spirits – both the Holy Spirit and the ancestral spirits’ role in making people’s lives bearable and successful. When it comes to rights, they depend on secular institutions such as the Human Rights Commission, Section 9 institutions and trade unions. They have a variety of theologies that either connect or disconnect their faith with issues of access to human rights. These churches are the majority and are the fastest-growing Christian groups in South Africa. Their membership runs into millions of people and they consist of semi-autonomous groups, which make their teaching and control loose. Usually their leadership has very minimal or no theological training at all, thus lacking the skills to relate their faith to issues of human rights. Christianity itself has become a contested terrain in South Africa, and I contend it is going to be like this for years to come. The internal divisions on theological issues within and amongst different churches will make the struggle for human rights difficult, because the churches themselves are divided on these matters. Some favour some rights as God-given, while others see some as sinful and not to be supported. At the moment, the voices that are being heard are from the Pentecostal churches that are not necessarily passionate about connecting their faith to oppose to human rights. It has become common in South Africa to hear church leaders dismissing the Constitution as unchristian because it gives rights to groups they deem to be unchristian. This attitude stems from the constitutional principles of religious diversity. It allows other religions to exist in the country in competition with Christianity, which previously was the privileged and indoctrinating religion since the arrival of the missionaries more than two centuries ago. The constitutional principles have sought to promote religious tolerance in terms of religious identity, difference and diversity. This has led to the government repealing some of the Christian observances and practices in public spaces and in the public calendar, such as Good Friday, Ascension Day etc. For instance, the new Policy on Religion Education has rejected the teaching of Christianity in public schools and banned holding Christian assembly prayers in schools in favour of teaching multi-faith prayers and religious education which covers all faith. Conservative Christians have responded with anger to this, arguing that the new policy violates their constitutional rights

182

Simanga Kumalo

and human rights to freedom of religion by preventing them from practising their religion in public spaces, and also by forcing their children to learn about other religions.¹⁰ As a result, there are large numbers of Christian denominations in South Africa that have rejected the Constitution because they feel it does not recognize their rights to practise Christianity and has allowed other religions, such as Satanism etc., to be practised and forced on them and their children. This point brings our attention to the fact that rights have their own limitations. A right for one person may lead to a violation of another’s right. Therefore, there is a constant need for dialogue and negotiation of human rights, especially by diverse religious groups amongst themselves. Linked to the issue of rejection of certain liberal principles of the Constitution by some Christian groups is the difficulty with issues such as the recognition of same-sex relations and abortion. Both African culture and traditional forms of Christianity have condemned these as evil and sinful. However, the Constitution has recognized these rights, and by rejecting them, these churches are also rejecting some aspects of the Constitution itself. Unfortunately, the result is that they do not see constitutional rights as meant for the promotion of full humanity, but as being in opposition to their culture and spirituality as Africans, whether they adhere to the Christian faith or to African traditional religions. Therefore, the opposition to human rights is very strong in South Africa; it leads to the collaboration of natural adversaries, such as African traditional religions and conservative Christians. The Church has to deal with this challenge.

3 The State of Human Rights in a Democratic South Africa In reflecting about South Africa’s journey towards nation-building in the past twenty years, especially when one looks at the ongoing process of democratization, it is imperative that one does not ignore the continued growth of unequal distribution of the economic benefits of the country to its citizens. This has led to an enormous gap between the rich and the poor, thus making South Africa the most unequal society in the world.¹¹ As if these were not enough, there are various strikes and demonstrations by mine, factory and transport workers. Most tragically, the result of one of these, as mentioned at the beginning of this

 Chidester, D. echoes the same sentiments. See Chidester, Religion, Globalization and Human Rights, 79.  South Africa: Transformation for Human Development (Cape Town: UNDP, 2000), 4.

The Role of the Church in Human Rights in a Democratic South Africa

183

paper, left 45 Marikana workers dead at the hands of police. The silence of the Church about the growing inequality in South Africa, the high levels of corruption by government leaders, and conspicuous consumerism has left people with disturbing questions about the role of the Church in a democratic society where human rights are violated on a daily basis. A number of theologians have looked at this matter and wondered if the Church still has a role to play in the development of a just and democratic culture in a post-apartheid South Africa. If yes, then we tend to wonder how the Church – that was known to be a champion of the rights of the oppressed during apartheid, a colossal of the liberation of the people and a prophetic voice that spoke on behalf of the poor and oppressed and dared to say “Let my people go” – has allowed the ANC-led government to violate the human rights of the poor, denying them access to the basic necessities of life, such as water, housing and reliable sources of income, and not delivering other basic services. In 2011, South Africa replaced Brazil as the most “unequal society, with the gap between the poorest and the richest individuals the highest in the world.”¹² Many South Africans have been disappointed with the churches’ silence over the death of Andreas Tatane, a community activist who was shot and killed by the police. They have been asking themselves what has happened – to the Church that spoke about the rights of people, to service delivery, to protest without intimidation and to speaking the truth to those in power without fear of being killed. They are again asking, where is the Church that used to lead their marches? Many times, people have asked the question “where have all the prophets gone?” At the same time, there are leaders of the Church asking questions about what has gone wrong with the South African society, which seems to have lost its understanding of the value of life and human dignity. Desmond Tutu put it this way: What has happened to us as a people? How can an old man rape a young child and not even get punished for that? Why is it that the people who faced the police with their dogs and guns to demand freedom are now responsible for the violation of the rights of citizens? How is it that the people who were once champions of our human rights are now responsible for denying those rights to us? What has happened to us that our own police can brutally kill our own mine-workers for embarking on a strike for a living wage? What has happened to us?¹³

 Gumede, W., Restless Nation: Making Sense of Troubled Times (Cape Town: Tafelberg, 2012).  Bishop Desmond, at the funeral of Khoza Mgojo on the July 22nd, 2012 at Gamalakhe in KwaZulu Natal.

184

Simanga Kumalo

Tutu has remained a lone voice and, vilified by the politicians, he continues to prick the conscience of the nation and be a thorn to the flesh of the government. The rest of the church community is demonstrating a lapse of prophetic integrity and judgment. No violence has been unleashed towards those who opposed the State, save the criticism and marginalization of the prophetic voice of Desmond Tutu. He has had to face harsh criticism and dismissal from government and/or from church leaders who are on the side of the government when he criticized the leadership of this country for violating human rights.¹⁴ There is a division between church leaders, with some, like Tutu, continuing in the prophetic tradition. It has also led to the collapse of the ecumenical movement, especially the SACC, which used to be the champion in the fight for human rights in South Africa.¹⁵ David Chidester observed that: Having established fundamental freedoms and basic rights in South Africa, the primary challenge facing all of us is to work towards closing the gaps between policy and implementation, between promise and reality, between human rights and their progressive realization. The Social Contract is an agreement to create conditions that will strengthen the social fabric of South Africa by establishing human rights and expanding human development.¹⁶

 President Mbeki castigated Desmond Tutu after he had delivered the Nelson Mandela speech and criticized the lack of open debate and dialogue in the ANC. Mbeki came out with all guns blazing, dismissing Tutu as ignorant because he is not a member of the ANC. A few years later, Tutu criticized Jacob Zuma for standing for election because of his pending cases and lack of moral judgement. Some church leaders from KwaZulu-Natal released a statement through Pastor Vusi Dube, where they distanced themselves from Tutu’s statements and took sides with Zuma. In 2011, Tutu blasted President Zuma’s government for denying the Dalai Lama an entry visa, which in his view was denying the Dalai Lama his human right to visit South Africa. Further, by doing this, the South African government was allowing itself to be dictated to by China, which is violating the Dalai Lama and the people of Tibet’s human rights. Again, he was widely criticized for his sharp remarks towards government.  At the time of writing of this paper, over two months has passed since the SACC retrenched all its staff members, with the exception of the General Secretary and his personal assistant, due to lack of funds.  K. Asmal and D. Chidester, eds., Legacy of Freedom. The ANC’s Human Rights Tradition (Johannesburg: Jonathan Ball Publishers, 2005), 133.

The Role of the Church in Human Rights in a Democratic South Africa

185

4 Conclusion By way of conclusion, I would like to state that the fields of theology and human rights are far more complementary than contradictory. It is a fact that certain tensions exist between the two, to the extent that attitudes of one may negatively impact efforts by the other. However, this should not discourage co-operation between the two fields and they must not withdraw from one another as if they are enemies. On the contrary, they should be complementing each other because both of them are aimed at the promotion of “life in its fullness” for all people.¹⁷ At the heart of this is the mission of the Church, such that the Church cannot stand aloof on human rights but needs to engage in their re-interpretation, implementation and promotion. Human rights are relevant in the theology, witnessing and practising of the Christian faith and must therefore be taken into account throughout the ministry and public witness of the Church in South Africa. Dialogical engagement with the government and theological education through the Church to accumulate knowledge and insights from the field of human rights can make a contribution to the protection and promotion of human rights. It can do this by strengthening the capacity of Christians to embrace, articulate and promote human rights as part of living out and practising their faith. The discussion in this paper has sought to demonstrate compelling reasons for the Church and human rights activists to explore how they can co-operate with and support one another, given their common commitment to the well-being of all people, to ensure access to human rights for all the citizens of South Africa. South Africa is completing its second decade of democracy and, so far, has fared well, as far as the safeguarding of human rights is concerned, though not without disturbing occurrences. The Church has not been active in the building and inculcation of a culture of human rights for all people. The silence and absence of the Church when civil society was marching for the distribution of anti-retroviral drugs, and its aloofness of conscience in the face of the violation of human rights, will need to be reviewed going forward, if the situation is to avoid reaching a tipping point. History has taught us that the future always belongs to a Church that takes sides with those whose fundamental human rights are trampled upon.

 John 10:10.

186

Simanga Kumalo

Bibliography Asmal, K. and Chidester, D., eds. Legacy of Freedom: The ANC’s Human Rights Tradition. Johannesburg: Jonathan Ball Publishers, 2005. Biko, S. I Write What I like. Johannesburg: PICADOR AFRICA, 2006. Boesak, A. The Tenderness of Conscience. Stellenbosch: Sun Press, 2005. Chidester, D. HRC Quarterly Review. Cape Town: International Human Right Exchange 2002. Dickens, C. A Tale of Two Cities. London: Chapman and Hall, 1859. Gumede, W. Restless Nation: Making Sense of Troubled Times. Cape Town: Tafelberg, 2012. Jafta, L. “Religion and Democracy in South Africa.” In Religion and Social Transformation in Southern Africa, edited by Walsh, T. Minnesota: Paragon House, 1999. Jenkins, F. HRC Review. International Human Rights Exchange, 2003. Kairos Document. Johannesburg: South African Council of Churches, 1985. Kelly, M. “The Catholic Church and Resistance to Apartheid. The Role of Religion and Religious Institutions in the Dismantling of Apartheid.” Final Report of the Seminar of the World Council of Churches and the United Nations Educational, Scientific and Cultural Organization. Geneva, 22nd-25th November 1991. van Nierker, D., ed. Governance, Politics, and Policy in South Africa. Oxford: Oxford University Press, 2001. Setiloane, G. Introduction to African Theology. Bramfontein: Skottaville Publishers, 1979. Villa-Vicencio, C. “Christianity and Human rights.” Journal of Law and Religion 14, no. 2 (1999 – 2000). Stackhouse, M. “Religion and Human Rights: A Theological Apologetic.” In Religious Human Rights in Global Perspectives: Religious Perspectives, edited by Witte, J. and van der Vyver, J. Atlanta: Martinis Nijhoff, 1996. Villa-Vicencio, C. “Religion as contested ground.” In Shik, O. The Role of Religion and Religious Values in the Dismantling of Apartheid. Final Report of the Seminar of the World Council of Churches and the United Nations Educational, Scientific and Cultural Organization. Geneva. 22nd-25th November 1991.

Beatrice Okyere-Manu

HIV and AIDS as a Human Rights Challenge to Faith Communities in Pietermaritzburg, South Africa “The sun finds a way to shine into even the deepest parts of the forest.” (Aung San Sun Kyi, Michel Sidibe, UNAIDS 2012)

1 Introduction South Africa recognizes the right to health care for all its citizens, which is in line with the Universal Declaration of Human Rights, which states that: Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.¹

This right is stipulated in the South African Constitution, Section 27 as follows: “Everyone has the right to have access to health-care services, including reproductive health care; sufficient food and water; and social security, including, if they are unable to support themselves and their dependants, appropriate social security.”² Despite this constitutional clause, the reality is that in terms of HIV and AIDS, these rights are constantly being violated. For instance, most women, orphans and other groups who are vulnerable to the disease are not able to exercise their rights, for various reasons, but, as was correctly put in a UNAIDS report: “In the World of AIDS, the lack of human rights protection can become a matter of life and death.”³ In recent times, there have been considerable developments by the South African government, in a move to allow vulnerable individuals to enjoy their rights to free medication and support grants where possible. A number of faith communities have also been active in reaching out to those affected and infected by the disease, with the provision of education, love, care and compassion, yet the disease continues to be a human rights

 The Universal Declaration of Human Rights, Article 25, 1948.  South African Constitution, Section 27.  2006 Report on the Global HIV/AIDS Epidemic (Geneva: UNAIDS, 2006), 62.

188

Beatrice Okyere-Manu

challenge. The concern of this paper is therefore to investigate the reasons why, despite recent developments, the disease continues to pose a human rights challenge. To answer, the paper argues that, in reality, a human rights approach on its own is insufficient and ineffective in responding to the challenges presented by the disease in South Africa. This is because in most African communities, the issue of human rights is viewed with scepticism. It is perceived as an individualistic and ideological hegemony, introduced to Africa by the western colonialists⁴ and therefore not fully acceptable in most African communitarian society and, as such, the South African context. Therefore, this paper proposes a more integrated approach to be able possibly to respond to the challenges created by HIV and AIDS. The paper posits that only a holistic approach can be effective in responding to HIV and AIDS in South Africa, and that the pre-eminent way would be through a framework that integrates human rights with an African value of communitarianism enshrined in the ethic of ubuntu, with stakeholders both protecting and promoting those rights.

2 From “Denialism” to the National Availability of Medication South Africa has experienced a complex and interesting transformation of the disease from a human rights point of view. It is not surprising that over the thirty years since the advent of HIV and AIDS, the disease continues to be a human rights challenge. The first known two cases of AIDS in South Africa were documented in 1982,⁵ after which the epidemic grew exponentially until the point where, by 2005, the national prevalence rate was about 16 %.⁶ “By 2007, the country’s HIV-positive population alone accounted for one-sixth of the global infection: 5.5 million out of a total of 33.2 million.”⁷ During this time there was widespread stigma and discrimination against the affected and infected. The major reason for the high infection rate in South Africa is partly attributed to the stance of the African National Congress (ANC) government under the  Nickel, J. W. In International Human Rights: Contemporary Issues, ed. Nelson, J.L. and Green, V. M. (Stanfordville: Human Rights Publishing, 1980), 45.  2006 Report on the Global HIV/AIDS Epidemic (Geneva: UNAIDS, 2006), 6.  Abdool Karim, Q. and Abdool Karim, S. S., “The Evolving HIV Epidemic in South Africa,” International Journal of Epidemiology 31, no. 1 (2002), 37– 40.  Parker, W., “The Politics of AIDS in South Africa: Foundations of a Hyperendemic Epidemic,” in African Responses to HIV/AIDS: Between Speech and Action, ed. Ige, S. and Quinlan, T. (Pietermaritzburg: University of KwaZulu-Natal Press, 2012), 225.

HIV and AIDS as a Human Rights Challenge to Faith Communities

189

Presidency of Thabo Mbeki. The post-apartheid government took a wrong turn on HIV: the State, under the leadership of Thabo Mbeki, chose neglect and denialism over science and maintained that HIV is not the cause of AIDS and also that ARVs are toxic and dangerous. Therefore, government was not going to provide them.⁸ This was at the peak of the epidemic and the government prevented the use of Nevirapine. Mbeki obstructed the acquisition of $72 million awarded to KwaZulu-Natal for the distribution of ARVs by the Global Fund in 2002.⁹ This “denialist” position had a negative impact on all those who were either affected by, or infected with, the virus. For instance, by 1998, it was estimated that up to 70 000 children were being born with HIV every year, and there were already signs that rising infant mortality was being caused by Mother To Child Transmission (MTCT). In addition, HIV infection carried a terrible toll for both parents and children. Many people died because they could not access the life-prolonging antiretroviral treatment. It was estimated that a total of 3.8 million person-years were lost as a result of lack of ARV between 2000 and 2005. A report by the Joint United Nations Programme on HIV and AIDS revealed that in 2005 alone, approximately 320 000 persons died, there were 900 AIDS-related deaths each day, and about 1.2 million children under the age of 17 had lost one or both parents.¹⁰ During this time, there were a number of protests and campaigns led by TAC, COSATU and religious leaders, and, eventually, the government decided to rollout HAART from 2004.¹¹ Nevertheless, within the past decade, much development has taken place. Now there is evidence of efficacy of treatment. This has impacted greatly on the situation in South Africa, which has gone from a place where there was limited access to treatment to a place where inclusion criteria for recruitment into the national ARV roll-out programme have been amended so as to cater for a larger group of people. Emphasis has been placed on the Prevention of Mother To Child Transmission (PMCT) programme and on those with HIV and TB infection. Now, with the availability of medication, HIV is reaching the stage where it can be managed as any other chronic health condition. The Global HIV and AIDS Report statistics, as of the end of 2012, revealed that the total number of people in South Africa living with HIV was estimated at 5.38 million. Out of the country’s total population of 50 586 757, 5.1 million

 Chigwedere, P. et al., “Estimating the Lost Benefits of Antiretroviral Drug Use in South Africa,” J Acquir Immune Defic Syndr 49 (2008), 410 – 415.  Cf. Chigwedere et al (footnote 8), 410.  2006 Report on the Global HIV/AIDS Epidemic (Geneva: UNAIDS, 2006), 505 – 510.  Nattrass, N., Mortal Combat. AIDS Denialism and the Struggle for Antiretrovirals in South Africa (Pietermaritzburg: University of KwaZulu-Natal, 2007), 14.

190

Beatrice Okyere-Manu

people are infected with the virus – the largest number for any country in the world. The report continues to say that new infections have been reduced there by 14 % and that 1.7 million people are on treatment, which translates to a 75 % increase in the last two years. There were 100 000 fewer deaths between 2005 and 2011.¹² There is availability of condoms and Post-Exposure Prophylaxis for those who mistakenly come into contact with the virus in either the hospitals or clinics and for those who are raped.

3 Current Human Rights Challenges So far, it is clear that since the advent of the disease, South Africans have experienced a positive aspect to the HIV-related human rights situation, for example, the country celebrates the free availability of medication. At the same time, the country has witnessed a number of situations where human rights have been violated. For instance, while there are many good reasons for scaling up the availability of medication for HIV, as recommended in the Universal Declaration of Human Rights, it is more complex in the context of South Africa, amidst poverty and unemployment, where greater numbers of people who go on the medication are not able to get the required quality of nutrition necessary to continue to be on the medication and to achieve maximum efficacy. It must be noted that their ability to adhere to treatment is also jeopardized by the fact that transportation to monthly check-ups and medication collection sites is difficult amidst the low financial situation. Although some of the PLWHA receive temporary disability grants, food supplements or other social assistance for themselves and their children’s welfare from government and some faith-based communities working in the area of HIV and AIDS, their economic circumstances remain unstable and thus affect their ability to access or continue their treatment. In addition, their access to health services is further compromised by challenges within the health system, particularly shortages of staff.

4 ARV in the Midst of Poverty The availability of medication – particularly ARVs – brings to the fore other human rights challenges, namely poverty and unemployment. It is estimated that currently 25 % of the total population of about 52 million South Africans

 UNAIDS, 2012.

HIV and AIDS as a Human Rights Challenge to Faith Communities

191

are unemployed (stats SA 2012). The irony of the disease is that most people requiring medication are unemployed or those within the minimum wage range who cannot afford quality nutrition. Nevertheless, good nutrition is one of the requirements for the medication and, as such, the availability of the medication poses human rights challenges. This situation further poses a number of ethical questions, for instance, how do people take the medication if they have no means of acquiring the required (necessary) nutrition, which is a fundamental human right? Has the desperation to find food not contributed, in some ways, to the high crime levels in the country? For people cannot take the medication on an empty stomach, and therefore will do whatever it takes to get food, or to get rid of the disease? Some people on medication go to the extent of selling their medication to drug users (Thembisa Mchunu 2012) and that also poses further challenges. The government has stepped in by giving all those requiring ARVs access to a disability grant of about 1400 Rand to subsidize the nutritional requirement of the Medication. However, this gesture by the government has also led to abuse of the system, whereby people are discouraged when they test negative and try all means to be positive; others buy positive certificates in order to access the disability grant. Others intentionally decide to skip their medication so that they can continue to be below a CD4 count of 200 in order to benefit from the grant (Thembisa Mchunu 2012).¹³ As a result of the prevalence of HIV, there is a high level of sexual violence and a high frequency of gang rapes of virgin women. Furthermore, there are some shocking forms of rape cases, for instance, a 22-year-old man raped an 85-year-old woman (Ollermann 2012, 5), with the thinking that perhaps, if she has lived that long, she is HIV negative. Rape survivors continue to face obstacles where some women cannot reach appropriate health facilities because they are far away from health centres and they cannot afford to travel. Some survivors are still told that they must report to the police before they can have treatment (Thembisa Mchunu 2012).

5 HIV as a Challenge to Carers’ Rights Another human rights challenge that is being manifested as a result of HIV and AIDS is that the rights of carers are compromised. Apart from young girls being

 A presentation by Thembisa Mchunu from Life Line at the HIV Colloquium on 29th October 2012, organized by The Cartography of HIV and AIDS, Religion and Theology (CHART).

192

Beatrice Okyere-Manu

called upon to give up their education to care for sick adults in the family, we experience instances where caregivers are faced with situations where they have to care for sick people in the family as well as orphans. In some instances, some of these older caregivers have to care for up to seven orphans, of which some are HIV positive (Okyere-Manu 2012). The sad reality is that most of these caregivers are very old. AIDS impacts on older people in two main ways: they are affected because they carry the burden of care for orphans and people living with HIV, and they are also being infected in the same ways as other people. Older men and women are left out of information campaigns. Older people, especially women, face accidental infection through their caregiving role. Most caregivers, particularly elderly women, face the challenge of limited access to grants, and therefore have to sacrifice their socio-economic rights to care for their sick family members and the orphans they are looking after (Okyere-Manu 2012).

6 HIV as a Human Rights Challenge to Vulnerable Children, especially Orphans There is an African proverb which states that: “It takes a whole village to raise a child.” HIV and AIDS is challenging this saying. It must be noted that from 27th May to 3rd June 2012 was child protection week in South Africa. The theme this year was “working together to protect children.” This campaign called everyone to create safe and secure environments for children. Despite the call and the strong Constitution advocating for the preservation of all those who live in South Africa, children’s dignity is being compromised as a result of HIV and AIDS. It must be noted that “In the African tradition, children’s rights were not a social issue; a child was a welcome addition to any household, where it would be assured of food, shelter and support. There were no formal mechanisms to protect children, but then none would have been necessary (Bennet 1993, 33).” HIV and AIDS have eroded these privileges. The effect of HIV and AIDs on children is complex. They are directly affected by HIV because of the risk of acquiring HIV through MTCT. They may be affected through their personal exposure to HIV, that is, through abuse and cross infection as they help parents or adults who are infected, as well as through their own lifestyle. Children are also indirectly affected by HIV as orphans. It must be noted that one of the rights of children that has been violated as a result of HIV and AIDS is their right to life, especially their basic needs, which are supposed to guarantee their survival and development (Shaw 2003, 45). Some of

HIV and AIDS as a Human Rights Challenge to Faith Communities

193

the basic needs include lack of food, shelter, clothing, protection, parental guidance and love, and, as such, they are vulnerable to all forms of abuse. HIV has also created child-headed households, where young girls and boys have to take care of their siblings. Even though education is there to develop a child’s personality and talent to prepare them for adult life (Skelton 1998, 28), orphans, particularly those from child-headed households, face a number of human rights challenges. Very many children are forced to drop out of school in order to care for sick family members, others have to be involved in household work or farm work (Hunter and Williamson 2002, 13). Masango reported of an incident where an orphan from a foster home was humiliated by the school’s principal because he had failed to pay his fees, even though the principal was aware of the South African Schools Act (Act No. 84 of 1996), which indicates the exemption of foster parents from paying school fees (2005, 1). These young people grow up in unstable conditions and experience remarkable loss and trauma. Girls, especially, face disrupted access to education, limited basic resources and inappropriate levels of responsibility for their age. This happens because of the shortage, inaccessibility or un-affordability of institutionalized care centres, such as hospitals, clinics and hospices, to care for the sick family members. The common scenario is that the girl child is the most common candidate to care for a sick family member. This poses the question of gender justice in the whole HIV situation. This also raises critical ethical issues such as, “Is it right for a girl child to lose her education because of taking care for a dying family member?” Many of these children themselves have HIV, but often have very limited access to care and treatment. It must be noted that as a country, we have not yet seen the impact of the disease on children, and that we are yet to see how these many burdens will impact on children as they reach adulthood in the future, and, if we are not able to respond positively to the human rights challenges now, the impacts will multiply exponentially over generations. Young girls are raped on a daily basis in South Africa, according to the Institute for Security Studies factsheet in 2011/2012; the police recorded 64 514 rape cases (2012, 5). Many people argue that rape usually has an under-reported incidence in the country, and some have attributed this to incompetence and negligence on the part of the police (Jo Ann Downs 2012). Valentino Lema has argued that “The scare of HIV infection and AIDS … is thought to be a major contributing factor to the increase in sexual assaults of young girls, who are considered to be relatively free of the infection” (1997, 745). No one knows how this myth came about, but people have been taking advantage of it and raping girls, and even babies, thereby infecting them with the virus. According to the Rape Survivor Journey website, “South Africa has the highest incidences of child and baby

194

Beatrice Okyere-Manu

rape in the world with more than 67 000 cases of rape and sexual assaults against children reported in 2000” (Administrator 2011, 1). The document continues: The largest increase in attacks was against children under seven. A number of high-profile baby rapes since 2001 (including the fact that they required extensive reconstructive surgery to rebuild urinary, genital, abdominal, or tracheal systems) increased the need to address the problem socially and legally. In 2001, a 9-month-old baby was raped by six men, aged between 24 and 66, after the infant had been left unattended by her teenage mother. A 4-year-old girl died after being raped by her father. A 14-month-old girl was raped by her two uncles. In February 2002, an 8-month-old infant was reportedly gang raped by four men. One has been charged. The infant has required extensive reconstructive surgery. The 8-month-old infant’s injuries were so extensive, increased attention on prosecution has occurred. A common myth holds that sexual intercourse with a virgin will cure a man of HIV or AIDS (Administrator 2011, 1).

Even today, young girls continue to experience rape in their communities, and also, some who are sexually active and sleeping around use condoms on the first and second contacts but thereafter refrain from continued use of condoms because they are familiar with the person. The argument here is that condoms are intended for strangers. “In most cases these girls are too young, immature and also lack the necessary sexual and financial power to negotiate for protected sex” (Dube 2009, 193). In some instances these girls are killed after the rape and their parts taken to traditional witch doctors to prepare muti (medicine), so that infected people can get rid of the virus. Lema confirms this by saying that: There are also beliefs in some areas of sub-Saharan Africa, that having sex with a young virgin girl may cure sexually transmitted diseases such as gonorrhea. Stories are also told to the effect that some local medicine-men prescribe sexual intercourse with young prepubertal or immediate post pubertal daughters as remedy to men seeking advice on ways to get rich quickly and retain the wealth (1997, 745).

There is also intergenerational sex, where some older men positively coerce younger children/ girls into having sex in exchange for money, food etc. because of the myth that one will be cleansed from HIV by sleeping with a virgin. With a number of women sick and eventually dying, the number of orphans continues to grow. The estimated number of orphans as of mid-2011 was 2.01 million (Stats SA 2011, 8); most of these are as a result of HIV and AIDS. These orphans face a number of human rights challenges: being called names at school, being responsible for younger siblings in child-headed households, and having limited access to grants, often due to lack of documentation, lack of access to food, stigma, lack of shelter, guidance and protection, and love, and identity crises. These young people grow up in unstable circumstances and experience loss,

HIV and AIDS as a Human Rights Challenge to Faith Communities

195

trauma, psychological problems, teenage pregnancy and drugs. There is an issue of dropping out of school or missing classes to go to the clinics, either for themselves or their siblings. Some of these children have been triply orphaned, moving from one caregiver to another.

7 Health-Care Workers A study conducted by the Human Science Research Council and Medical University of South Africa in four provinces revealed an HIV prevalence of 15.7 %. The report also stated that “The HIV epidemic has an impact on the health system through loss of staff due to illness, absenteeism and low staff morale, and also through the increased burden of patient load” (Shisana et el 2002). It is clear from the above that the rights of the health-care workers are being compromised by an increasing disease burden and a shifting in the patterns of disease, bearing in mind the rising prevalence of HIV among health-care workers and the negative impacts of this overwhelming epidemic on their functioning. So far, this paper has demonstrated that on paper, South Africa upholds the Declaration of Human Rights in terms of the requirements of the Constitution, but that in reality, HIV and AIDS continues to be a human rights challenge. This situation presents a challenge not only to the State, but also to faith communities, who have been playing a vital role in responding with care and compassion to those who have been affected and infected with the disease. Therefore, the alternate framework needed is the integration of human rights, which are mostly perceived from an individualistic perspective, with the African value of ubuntu, the “ethical benchmark of African societies” (Mangena 2009, 70). According to Johann Broodryk, ubuntu is defined as “a comprehensive, ancient worldview which pursues primary values of intense humaneness, caring, sharing and compassion, and associated values, ensuring a happy and quality community life in a family spirit or atmosphere” (2004, 4). Ubuntu here means humanness and what it means to be human (Louw 2001, 15). Ubuntu is understood through the traditional African saying umuntu ngumuntu ngabantu, as expressed in Zulu, and mothokemotho kabatho, expressed in Sotho, which means “a person is a person through other persons” (Shutte 2001, 2). This saying suggests that ubuntu is based on the understanding of interdependency: the need for one another to achieve life’s desired goals. In this way, “I am, because you are” suggests that individuals cannot exist alone, but depend on a social network of a community where, when a misfortune occurs, it affects everyone in the community.

196

Beatrice Okyere-Manu

Munyaka and Motlhabi draw our attention to the fact that the expression of ubuntu recognizes, accepts and respects individuals regardless of their “social status, gender or race” (2009, 66). Thus, within the communalism of the virtue of ubuntu, as expressed in umuntu ngumuntu ngabantu, individuals are valued and treated with respect and as equals. This implies that ubuntu expects men and women to be treated equally, with dignity and respect, in their communities. Explaining umuntu ngumuntu ngabantu, Mogobe Ramose adds that “a humane, respectful and polite attitude towards others constitutes the core meaning of this aphorism” (1998, 231). As a result, ubuntu is seen “as a spirit, a shared way of seeing the world and relating to people” (1998, 326). To him, ubuntu is a spiritual foundation of the African people and it affirms one’s humanity by recognizing the humanity of others and, on that basis, establishes humane relationships with others (1998, 231). The inference one can make here is that ubuntu seeks the communality of the individual in the society and determines how the individuals ought to live in the community. Desmond Tutu has also observed that “Ubuntu is about the pure essence of being human. Rather than ‘I think, therefore I am,’ the focus is on ‘I am human because I belong, I participate, I share’” (1999, 42). Ubuntu here implies belongingness; each individual belongs and therefore shares. Michael Mnyandu asserts that: Ubuntu is not merely a positive human quality but the very essence itself, which “lures” and enables human beings to become “abantu” or humanised beings living in daily selfexpressive works of love and efforts to create harmonious relationships in the community and the world beyond (1997, 8).

The implication here is that ubuntu is about the well-being of the individual as well as the community, and about not only what they say, but also what they do. Therefore, if integrated with human rights, it will challenge individuals to take responsibility for themselves and for the communities they find themselves in. People will understand the need of being my “brother’s keeper.” In such a community, each person is treated with respect and dignity, and these values are extended even to strangers as well. There is no room for greed, abuse or even discrimination resulting from self-interest. Thus it is clear that ubuntu as an African ethic expresses itself not only in individual or communal acts, but also in one’s very being, making each individual an important part of the community. It is from this background that Shutte says, “Ubuntu is the name for the acquired quality of humanity that is the characteristic of a fully developed person and the community with others that results.” It thus comprises “values, attitudes, feelings, relationships and activities, the full range of the

HIV and AIDS as a Human Rights Challenge to Faith Communities

197

human spirit” (2009, 97). It must be noted here that though African cultures differ on many grounds, there are areas in their value systems, such as the idea of ubuntu, where they share a common ground. Nhlanhla Mkhize believes that the ideology of ubuntu is an important African stance of morality and ethics (2008, 35). From the detailed discussion of ubuntu above, it is clear that when it is integrated with human rights principles, it will be able to provide the necessary response to the pandemic in Africa. Such a framework will strengthen the capacities of national human rights institutions as well as faith communities working with those affected and infected with the disease. A combined theory, therefore, is a key to effectively working against the spread of the disease. This is because individuals conscious of an ethics that is oriented towards the community, and not neglectful of individual rights and responsibility, will tend to challenge some of the unacceptable practices that encourage human rights violation, for this affects not only the victim, but the community as a whole. By so doing, there will be a breakthrough in the stigma and discrimination surrounding the disease. To a greater degree, such a framework will be empowering for the whole community, because continuous education and dialogue between stakeholders – particularly faith communities who already have an audience – and those in the communities who are affected and infected with the disease will also ensure mutual understanding of the common values underlying human rights and the African tradition of communitarianism. Such a framework will empower the whole community: grandmothers will be aware of their rights and the opportunities that are out there for them as they embark on their new roles of being the primary caregivers for their grandchildren, in the absence of the children’s parents. The integrity and dignity of most of the vulnerable groups, such as those in the community affected and infected with the disease, will be protected as they will have a safe space to listen and to be heard. In addition, the silence surrounding the disease will be broken as people learn of the national responsibilities as well as the individual and the community rights. Another advantage of this integrated framework is that it will transform the mind-set of most people in the communities, and the structures thereof, through continual envisioning of what it means to live in an ubuntu community, while yet respecting each other’s rights and freedom. Where individuals and communities are able to realise their rights and responsibilities, the incidence and impact of HIV/AIDS will be reduced.

198

Beatrice Okyere-Manu

8 Conclusion This paper has argued that despite the recent developments of HIV and AIDS in South Africa, the disease continues to be a human rights challenge. This is partly because the concept of human rights is perceived as a foreign theory that has been handed down to Africans, and, as such, the ordinary person finds it difficult to apply. The paper has listed some of the human rights challenges caused by HIV and AIDS, including poverty and unemployment in the midst of free ARVs for all those who are HIV positive. Caregivers also continue to face human rights challenges: they lack the necessary documentation to access government grants; older caregivers sacrifice their physical health for the family’s wellbeing; and girls sacrifice their own education to care for sick family members and their siblings. Another human rights challenge is that women and young girls are sexually abused as a result of the myth that sleeping with a virgin clears people of the HI virus. The paper therefore proposed that the holistic framework needed to curb these challenges will be a framework that integrates human rights with the African value of communitarianism enshrined in the ethic of ubuntu. Through dialogue with, and education from, the government and faith communities working in the area of HIV and AIDS, the ordinary South African will be able to appreciate the community as well as individual responsibility in curbing the challenges posed by the disease.

Bibliography Abdool Karim, Q. and Abdool Karim, S. S. “The Evolving HIV Epidemic in South Africa.” International Journal of Epidemiology 31, no. 1 (2002), 37 – 40. Barnett, T. and Whiteside, A. AIDS in the Twenty-First Century: Disease and Globalization. Macmillan, UK: Palgrave, 2002. Bennet, T. W. “Human Rights and the African Cultural tradition.” Transformation 22 (1993), 33. Broodryk, J. Oeboentoe se Afrika se. Pretoria: Ubuntu School of Philosophy. Chigwedere, P. et al. “Estimating the Lost Benefits of Antiretroviral Drug Use in South Africa.” J Acquir Immune Defic Syndr 49 (2008), 410 – 415. Downs J. A., SAPA. http://www.iol.co.za/news/crime-courts//rape-still-unacceptable-highacdp-1.1387684 Dunne, E. and Kettler, L. “Grandparents Raising Grandchildren in Australia. Exploring Psychological Health and Grandparents’ Experience of Providing Kinship Care.” International Journal of Social Welfare 9 (2008), 333 – 345. Hammill, J. “Granny rights: Combating the Granny Burnout Syndrome Among Australian Indigenous Communities.” Development 44, no.2 (2001), 69 – 74.

HIV and AIDS as a Human Rights Challenge to Faith Communities

199

Hunter, G. and Williamson, J. “A Review of Current Literature on the Impact of HIV/AIDS on Children in Sub-Saharan Africa.” Aids 14, suppl. 3 (2002), 275 – 284. Klugman, B. “Sexual Rights in Southern Africa: A Beijing Discourse or a Strategic Necessity.” Health and Human Rights 4, no. 2 (2000), 146 – 7. Masango, S. “Uxoshiwe Umfundi Okweleta Imali Yesikole.” Ilanga, 12th October, 1. Mangena, F. “Natural Law Ethics, Hunhuism and the Concept of Retributive Justice Among the Korekore-Nyombwe People of Northern Zimbabwe: An Ethical Investigation.” D. Phil Thesis. Harare: University of Zimbabwe, 2008. Munyaka, M. and Motlhabi, M. “The African Concept of Ubuntu/Batho and Its Socio-Moral Significance.” Black Theology, An International Journal 3, no. 2 (2005), 215 – 237. Mkhize, N. Culture, Morality and Self: In Search of an Africentric Voice. Unpublished Manuscript. University of Natal – Pietermaritzburg, Department of Psychology, South Africa Initiative, 1998. Mnyandu, M. “Ubuntu As the Basis of Authentic Humanity: An African Christian Perspective. Journal of Constructive Theology 3 (1997), 77 – 91. Nattrass, N. Mortal Combat: AIDS Denialism and the Struggle for Antiretrovirals in South Africa. Pietermaritzburg: University of KwaZulu-Natal, 2007. Nickel, J. W. in International Human Rights: Contemporary Issues, edited by J.L. Nelson and V. M. Green. Stanfordville: Human Rights Publishing, 1980. Ollerman, I. “‘I Wanted Sex,’ Says Rapist” Weekend Witness. Saturday, 22nd September 2012. Okyere-Manu, B. When Care Becomes a Burden: An African Feminist Exploration for a Safe Space for Grandmothers Caring for Orphans and Vulnerable Children (OVCs). Unpublished Article, 2012. Ramose, M. “The Philosophy of Ubuntu and Ubuntu as a Philosophy.” In Philosophy from Africa, edited by Coetzee, P. H. and Roux, A. P. Cape Town: Oxford University Press, 1998. Republic of South Africa Constitution, Chapter 2, Section 27. Shaw, M. “Child-Headed Household.” Pace, March 2003, 45 – 47. Shisana, O. et al. The Impact of HIV/AIDS on the Health Sector: National Survey of Health Personnel, Ambulatory and Hospitalized Patients and Health Facilities. HSRC MRC, MEDUNA, 2002. Shutte, A. Ubuntu: An Ethic for a New South Africa. Pietermaritzburg: Cluster Publication, 2001. Shutte, A. “Ubuntu as the African Ethical Vision.” In African Ethics – An Anthology of Comparative and Applied Ethics, edited by Murove, M.F. Pietermaritzburg: University of KwaZulu Natal Press, 2009, 85 – 99. South African Schools Act, Act No. 84, 1996. Tutu, D. M. No Future Without Forgiveness. New York: Doubleday, 1999. Koka, Kgalushi K. The Afrikan Renaissance. Midrand: The African Study Programme/Pretoria: Ubuntu School of Philosophy, 1997. Epidemiological Fact Sheet on HIV/AIDS and Sexually Transmitted Infections: South Africa. UNAIDS & WHO, 2004, 6. Universal Declaration of Human Rights. United Nations, 1948 http://www.jus.uio.no/lm/un. universal.declaration.of.human.rights.1948/portrait.a4.pdf. (26.01.13). 2006 Report on the Global HIV/AIDS Epidermic. Geneva: UNAIDS, 2006.

200

Beatrice Okyere-Manu

Parker, W. “The Politics of AIDS in South Africa: Foundations of a Hyperendemic Epidemic.” In African Responses to HIV/AIDS: Between Speech and Action, edited by Ige, S. and Quinlan, T. Pietermaritzburg: University of KwaZulu-Natal Press, 2012. Wearing, B. and Wearing, C. “Women Breaking Out: Changing Discourses on Grandmotherhood?” Journal of Family Studies, 2, no. 2 (1996), 165 – 177. White, C. “Close to Home in Johannesburg – Gender Oppression in Township Households.” Women’s Studies Int. Forum, 16, no. 2 (1993), 149.

Johan Cilliers

The Role of the Eucharist in Human Dignity: a South African Story 1 Human Indignity in South Africa: Eucharistic Origins? 1.1 Introduction The notion of human dignity can be, and in fact has been, described within a multitude of scientific fields – ranging from sociological, anthropological, juridical, psychological and economical to philosophical, ethical and religious perspectives, to name but a few.¹ In this paper, I endeavor to approach this issue from a theological, and in particular sacramental, point of view, restricting myself to the Calvinistic understanding of the Eucharist² – and furthermore, to a di-

 Some scholars distinguish three broad strands of meaning in the tradition of the notion of human dignity, namely dignity as humaneness, i. e. the equal value of being human, regardless of a person’s social status; dignity as a social merit and moral stature, i. e. relating human dignity to social and political status and/or the excellence of virtue; and dignity as beauty or “glory,” i. e. an aesthetical meaning that links dignity to the mystery of one’s unique individuality and irretrievable relationship to God. cf. van der Ven, J., Dreyer, J. S. and Pieterse H.J. C., Is There a God of Human Rights? The Complex Relationship between Human Rights and Religion: A South African Case (Leiden/Boston: Brill, 2004), 267. All of these traditions have found resonances in the Christian tradition. cf. Soulen, R. K. and Woodhead, L., “Contextualising Human Dignity” in God and Human Dignity, ed. Soulen, R. K. and Woodhead, L. (Grand Rapids: Eerdmans, 2006), 5 – 6. cf. also the multi-disciplinary approaches of a poet, a law expert, a psychologist, a philosopher and a theologian in Menswaardig, red. Vos, C. en Müller, J. (Johannesburg: Orion, 1994) – written in the year when the first democratic elections took place in South Africa. The South African scholar Russel Botman speaks about two typical strands of discourse in South Africa concerning human dignity, namely those of equality and reconciliation, and adds a third: the role of globalization. Botman, H. R., “Covenantal Anthropology: Integrating Three Contemporary Discourses of Human Dignity,” in God and Human Dignity, ed. Soulen, R. K. and Woodhead, L. (Grand Rapids: Eerdmans, 2006), 72– 86.  It could rightly be said that the religious landscape in colonialized South Africa was strongly influenced by Calvinism. Some even state that if Calvin had still been alive during the later phase of the French Huguenots’ stay at the Cape, he would have preferred to live amongst them. cf. Coertzen, P., Hugenote van Suid-Afrika 1688 – 1988 (Kaapstad: Tafelberg, 1988), 143 – 152. The restriction to the Calvinistic understanding of the Eucharist is therefore done in order to evaluate and interpret the Eucharistic practices in South Africa during this period in relation

202

Johan Cilliers

achronic overview of a particularly painful part of our South African history.³ This brief exploration of the earliest⁴ understandings and practices of the Eucharist in South Africa makes it clear that apartheid “began its life in the Church around the Table of the Lord.”⁵ That space that should have formed the most intimate unity between people became the exact opposite: a space of schism.⁶ It could indeed be said that “The misunderstanding of Calvin’s views of the Lord’s Supper played a crucial role in the South African experience of apartheid theology and ecclesiology and the resulting struggle for the visible unity of the

to the understanding of the Reformer himself, but also to apply ideological criticism to these practices. cf. also footnote 11.  This history could obviously be described from a variety of angles, using different research methodologies. Whatever route one follows, a responsible, hermeneutical dialogue with the past is of pivotal importance, as we often tend to apply a reduced form of remembrance – a selective memory, if not a total amnesia. On the one hand, we should acknowledge the vulnerability and weakness of our acts of memory; on the other hand, we should also embrace the potential of memory to interpret the past in a hermeneutically responsible manner. cf. Ricoeur, P., Memory, History, Forgetting (Chicago: University of Chicago Press, 2004), 21. Memory is all we have to link us to the past. But memory can also be abused in various ways, for instance on a pathological and therapeutic level, on a practical level (especially in terms of finding and defending our identity), and on an ethical-political level. cf. Vosloo, R., “Reconfiguring Ecclesial Identity: In Conversation with Paul Ricoeur,” Studia Historiae Ecclesiasticae. Journal of the Church History Society of Southern Africa 32, no. 1 (2007), 273 – 293.  For this part of the paper I restrict myself to the years 1828 to 1857. It is obviously impossible to do justice to the complex tapestry of this history. This paper merely reflects on certain events, particularly as they pertain to the connection between the Eucharist and the notion of human dignity. One could rightly ask where one should start when discussing the celebration of the Lord’s Supper in South Africa. “Must one start with the synod’s decision in 1857 in respect of ‘the weakness of some’, or go even further back to a possible Eucharist celebration by Vasco da Gama and his company in the fifteenth century? Or should one take the more recent developments as point of departure, such as the Dutch Reformed Church’s (DRC’S) admission of children to the Lord’s Supper in 1998?” Wepener, C. “Still ‘Because of the Weakness of Some’? A Descriptive Exploration of the Lord’s Supper in South Africa, 1948 – 2002,” Jaarboek voor liturgie-onderzoek 18 (2002), 139.  Boesak, A., Foreword, in Apartheid Is a Heresy, ed. De Gruchy, J. and Villa-Vicencio, C. (Cape Town: David Philip Publisher Pty Ltd, 1983), xi.  “Schism is the division of the body of Christ. It means separation at the Lord’s Table. It means that the common elements of bread and wine are used not to signify the unity of the common life of the Lord and all the members of his body, but rather the separation of members from one another and the denial of both communion and community. Whether or not one can eat and drink worthily is determined by criteria other than Christ’s sacrificial giving of his body. Not giving, but possession becomes the criterion of worthiness, and schism voids the Sacrament.” Boesak, Foreword, xii.

The Role of the Eucharist in Human Dignity: a South African Story

203

church. The story of apartheid was also the story of the Lord’s Supper gone wrong.”⁷ This “story of the Lord’s Supper gone wrong” reads like a suspense novel – without a happy ending. For the sake of brevity, I list three pivotal “arguments” that were implemented by pious and devoted Calvinists against the communal celebration of the Eucharist in early, colonialized South Africa.

1.2 The Argument of “Religious” Identity The first documented incident of objections against sharing the Lord’s Table dates back to 1828. The minutes of the Synod of 1829 reveal that a certain Reverend (“Dominee”) J. Spijker requested the Synod to take a standpoint regarding segregation at the Lord’s Table. This was the result of tumult in his congregation (Somerset-Hottentots Holland – now called Somerset-West), when a man by the name of Bentura Johannes⁸ was baptized into the congregation and consequently partook of the Lord’s Supper together with white members. Bentura was referred to in the Baptismal Register as a “bastaard,” i. e. a person of mixed blood. Immediately after this Eucharistic event, certain members of the congregation objected to the fact that Bentura had dared to partake of the Lord’s Supper with the “born Christians.”⁹ This phrase (“born Christians”) begs interpretation. It is interesting to note that the issue was not that Bentura was not a “born-again Christian,” or something to that effect, but that he was not a born Christian. One could reason that the distinction here was that of (traditional, confessional) Christians versus (former) heathens. But the irony was that Bentura was baptized into the congregation without any objections. He was thus accepted as a (born-again?) Christian. But this was apparently not good enough. In order to partake of the Lord’s Table (at least with the members of the congregation into which he was baptized), he had to be a born Christian. Why this pre-condition?

 Smit, D. J., “Beyond Augsburg: Calvin on the Real Presence of Christ in the Lord’s Supper,” Lutheran Forum 46, no. 1 (2012), 44.  Before his baptism he was known as Bentura Visser.  For an extended discussion of this and other telling incidents, cf. Loff, C. “The History of a Heresy,” in Apartheid Is a Heresy, ed. De Gruchy, J. and Villa-Vicencio, C. (Cape Town: David Philip Publisher Pty Ltd, 1983), 10 – 23.

204

Johan Cilliers

I am of the opinion that this phrase was one of many that served to mask real intentions and agendas.¹⁰ What is actually meant is not that Bentura was not a born Christian, but that he was not a born white. The argument in favour of his exclusion was not a spiritual one, but an ethnic one; the “religious” identity that was guarded so zealously was not religious, but biological-ethnical. The word “born” gives the true intention away; “born” then means exactly that: being a biological part of a certain ethnic in-group. And, in this sense, Bentura – a baptized member – was disqualified.¹¹

1.3 The Argument of “Legal and Moral” Categorization To the credit of Reverend Spijker, it must be said that he did not necessarily agree with the views of the elders that demanded segregation in his congregation; as a matter of fact, he had to face harsh criticism for his stance that no baptized member may be excluded from the Eucharist. The objecting elders, however, did not stop their campaign – rather, when they saw that the first salvo did not have the desired effect, they changed their argument to that of “moral” categorization. The “logic” behind this argument went like this: Bentura was guilty of “prostitution.” Why? Because he was not married to the slave with whom he lived and had children. Ironically enough, this issue was never raised when Bentura was baptized; on the contrary, he was given a good testimonial. But the irony deepens. Bentura had a long-lasting relationship with the slave that was his wife and life-partner, but he could not be married to her, simply because the laws of the time forbade slaves to enter into marriage. So, the laws – obviously upheld by the devout elders – were used as a “moral” yard-stick to stereotype and categorize Bentura and his wife. Thus: not only was Bentura dis-

 It is interesting to note what role language plays in the creation and sustaining of destructive ideologies. Therefore, the study of ideology is synonymous with the study of the ways in which language is applied to sanction relations of domination, and it is the task of ideological criticism to point out the other possibilities of language, i. e. to break through the existing reality of language being used as an instrument of power, to relativize the existing power relations, and to propose new realities in an imaginative way. Some of the linguistic modi operandi of ideology formation that serve the ideology of power, for instance, can be linked to a variety of linguistic means to legitimize, and to create an “eternal” state of affairs. cf. Thompson, J. B., Studies in the Theory of Ideology (Cambridge: Polity Press, 1984), 131– 32.  cf. Vosloo, R., “The Welcoming Table? The Lord’s Supper, Exclusion, and the Reformed Tradition,” in Strangers and Pilgrims on Earth. Essays in Honour of Abraham van de Beek, ed. Van der Borght, E. and van Geest, P. (Leiden/Boston: Brill, 2012), 487.

The Role of the Eucharist in Human Dignity: a South African Story

205

qualified on the grounds of his ethnical inappropriateness, he was also stigmatized as morally inadequate – by the law. This argument had a further, ironical sting in its tail. When the debate about segregation was taken to the Synod of 1829, the same “law” backfired on those using it. It was accepted in those times that the government had the right to involve itself in church affairs, even up to the point that all decisions taken by Synod had to receive the green light from the government before they could be implemented. So, the “Kommissaris Politiek” (Commissioner of Politics) represented the government at all official church gatherings, monitoring whether the Church was busy with “church issues” or not and even having the power to veto decisions and, in some cases, prevent a topic from being discussed at all.¹² Exactly this happened at the Synod of 1829. The Synod did not declare itself in favour of an integrated Eucharist; it was simply stopped in its tracks because the “Kommissaris Politiek” was of the opinion that such a discussion would be humiliating for a Church Synod even to consider! Discrimination at the Lord’s Table, at least in the eyes of the government of those days, would in fact be “against the law.” Clearly, this interpretation of the law did not suit those who were propagating Eucharistic separation.

1.4 The Argument of Scripture But the plot still thickens. If religious-ethical grounds or legal conditions could not suffice, then, surely, the question is, what do the Holy Scriptures say about the matter? It is quite astonishing to see how many “scriptural” arguments were used to separate people at the Lord’s Table. One of the elders in Reverend Spijker’s congregation contended that Luke 17:7– 8 was a clear indication that, given Bentura’s heritage and subservient status, certain distinctions could be made at the Lord’s Table.¹³ This elder even argued that discrimination could not do any harm, “because the Redeemer himself spoke about it.”¹⁴ No contra-arguments could sway this elder; on the contrary, he produced another scriptural validation of segregation: 1 Corinthians 10:16, which clearly states that if the eating of meat should cause a brother to stumble, one should never eat meat again, i. e. if Bentura’s presence at the Lord’s Table causes such a discomfort to fellow members,

 Cf. Loff, The History of a Heresy, 16 – 17.  This particular passage speaks about a servant’s duty.  Loff, The History of a Heresy, 13.

206

Johan Cilliers

he – Bentura – should rather stay away, or celebrate the Lord’s Supper separately. In any case, this elder added, Bentura did not even have the decency to attend the thanksgiving service after the Communion! Another elder joined the Biblequoting protestors – reminding Reverend Spijker that Deuteronomy 23:2 clearly states that “A bastard shall not enter into the congregation of the Lord, even to the tenth generation,” and that Jesus never came to relativize the Law of God and the Prophets. And so the scriptural foundation of separation at the Lord’s Table goes on. The most telling use of Scriptures in this regard, however, can be seen in the decision taken by the Synod of 1857.¹⁵ By now, the debate had been growing in intensity, with some congregations practising segregated Eucharistic services de facto. The period preceding the Synod of 1857 yields some riveting arguments by different church councils, for instance that although Communion should not be administered on different days, it poses no problem if it is administered at two different times on the same day! Or: is it not preferable to have special seating in a separate section of the church building – usually at the back of the church – for black people and “people of colour”? Or, at its worst: is it not acceptable to have separate pews – with back-rests – for whites, and pews for the heathen – without back-rests? In one congregation, the ruling was that black people would be ministered to in the vestry “because there was no room in the church building,” but this was also objected to, so that the services for the black people ended up being conducted in the shade in front of the door to the vestry.¹⁶ The Synod of 1857 tried to reach a compromise in this on-going debate, and this resulted in the usage of Scripture in a remarkable manner. The official decision of the Synod reads:

 The historical background of this infamous decision is quite complex and cannot be discussed in detail here. Briefly put, it boiled down to a request that was made by some members of the congregation of Stockenström, in the Eastern Cape, to have separate communion services. This request was denied by the church council, but again taken up by the presbytery of Albany, under which Stockenström resorted. Ultimately, the request landed on the table of the Synod in 1857. There were strong, divergent views on the issue, and the decision taken, formulated by Reverend Andrew Murray Senior, was an effort to find a compromise. It, however, had the undeniable effect of legitimizing separation at the Lord’s Table. For a detailed overview of this background to the Synod of 1857, cf. Pauw, C., Anti-Apartheid Theology in the Dutch Reformed Family of Churches: A Depth-Hermeneutical Analysis (Amsterdam: Vrije Universiteit, 2007), 71– 76.  Loff, C., Dogter of Verstoteling? Kantaantekeninge by die geskiedenis van die Nederduitse Gereformeerde Sendingkerk in Suid-Afrika (Kaapstad: Uitgegee deur die Predikante Broederkring, 1981), 22.

The Role of the Eucharist in Human Dignity: a South African Story

207

The Synod considers it desirable and according to the Holy Scripture that our heathen members be accepted and initiated into our congregations wherever it is possible; but where this measure, as a result of the weakness of some, would stand in the way of promoting the work of Christ among the heathen people, then congregations set up among the heathen, or still to be set up, should enjoy their Christian privileges in a separate building or institution.

What is remarkable is the fact that this decision was intended to “promote the work of Christ” – a type of “theological legitimization” of the status quo of separation at the Lord’s Table.¹⁷ Ultimately, “the weakness of some” became the alibi to canonize racial separation at the Lord’s Table, and, quite logically, resulted in the creation of separated churches within the so-called “Dutch Reformed Family” in 1881, with the establishment of the then-called Nederduitse Gereformeerde Sendingkerk (Dutch Reformed Mission Church).¹⁸ But the “logic” of this separation went further and deeper – offering religious and “theological” fuel for those in power, who came later to create a separated society, in the name of “friendly neighbourliness” (in the words of a former prime minister, Hendrik Verwoerd), but in fact as inhumane apartheid, officially introduced in 1948.¹⁹

 Loff, Dogter of Verstoteling?, 22; cf. also Vosloo, The Welcoming Table?, 485.  “The logical step from separate seating for blacks was the erection of separate buildings for the ministering to the black membership. And from there it was simply a matter of time before the separate services in the special little building was developed into a separate congregation. And out of these separate congregations the first separate or daughter church was founded.” Loff, C. “Racism, Economic Dependence and the Family of Dutch Reformed Churches,” in Conference on Economic Development and Racial Domination (Bellville: University of Western Cape, 1984), 4. The Dutch Reformed Mission Church – the first so-called “daughter church” – was followed by the Dutch Reformed Church in Africa (1910, 1932, 1951, 1952) and the Reformed Church in Africa (1965). These churches minister mainly to “coloured,” black and Indian people, respectively. In 1994, The Dutch Reformed Mission Church and a large part of the Dutch Reformed Church in Africa united and formed the current Uniting Reformed Church in Southern Africa (URCSA), who accepted the Belhar Confession as fundamental expression of their struggle against racism and prejudice.  In 1948, the National Party came into power and apartheid was officially written into the country’s law books.

208

Johan Cilliers

2 Human Indignity in South Africa: Three Eucharistic Theses 2.1 Introduction One of the amazing – saddening – paradoxes of the story told above is the fact that the agitators for separation were, according to their own confession, firmly rooted in Calvinism. Calvin, however, had a distinct understanding of the Eucharist, which in reality cries out against all of the above-mentioned “arguments” in favour of separation. Calvin’s understanding of the Eucharist has been considered by some Calvin scholars under the rubric of the presence of Christ. ²⁰ Five dimensions of this presence of Christ have been identified, namely firstly the living and personal presence of Christ, through which believers are united with, have communion with, and are engrafted into Christ. Secondly, Christ’s spiritual presence – it occurs through word and Spirit and therefore through faith. Thirdly, Christ’s sacramental presence, i. e. his real and true presence is given through the signs of the sacrament. Fourthly, Christ’s Eucharistic presence and the believers’ participation in the sacrament being integral to the sacramental presence, and, finally, the believers’ participation results in an ecclesial presence of Christ in the Church as his body.²¹ Of importance for this paper is to note that the presence of Christ implies relationships between the present Christ and those for, and with, whom He is present. As a point of departure, I propose that the notion of human dignity is also  Cf. Smit, D. J., “… wahrhafte Teilhaber an der wahren Substanz des Leibes und Blutes Jesu Christi … ,” in Johannes Calvin ökumenisch gelesen, Hg. A. Birmelé, W. Thönissen (Leipzig: Bonifatius, 2012), 71– 96; also Welker, M., Was geht vor beim Abendmahl? (Gütersloh: Gütersloher Verlagshaus, 2004), 90 – 102. He states: “Jesus versetzt sich in seine Jünger hinein… Über den Kreis der Jünger hinaus wird der gekreuzigte und auferstandene Christus so über die Identifikation mit Brot und Wein gegenwärtig.” Welker, Was geht vor beim Abendmahl?, 97. According to Purcell, the gift of the Eucharist “arises in a past covenant; it points to an eschatological future charged with hope and promise; and because of this, it establishes a present.” Purcell, M. “‘This Is My Body’ Which Is ‘For You’… Ethically Speaking,” in The Presence of Transcendence. Thinking ‘Sacrament’ in a Postmodern Age, ed. Boeve, L. and Ries, J. C. (Leuven – Paris – Sterling, VA: Peeters, 2001), 141.  Smit, Beyond Augsburg, 40 – 43. It would, however, seem that the Calvinistic faith has often lost sight of these five perspectives on Christ’s presence in the Eucharist: “Christ’s living and personal presence exchanged for ideas about Christ; Christ’s spiritual presence replaced by human subjective thoughts and feelings only; Christ’s sacramental presence reduced to mere reminders of Him; Christ’s Eucharistic presence mistaken for human mental activities only; Christ’s ecclesial presence lost in an association of likeminded individuals.” Smit, Beyond Augsburg, 44.

The Role of the Eucharist in Human Dignity: a South African Story

209

relational, and not so much an ontological quality somehow embedded within human beings.²² We do not “have” it, but we are given it, and, understood within the context of the presence of Christ in the Eucharist, we are given it through our relationship with Christ (personal presence), through the word and Spirit (spiritual presence), and through the signs of the sacrament (sacramental presence), but also through the participation of the believers in the Eucharist (Eucharistic presence), and as a result of the relationship of the living Christ with his body, the Church (ecclesial presence). In terms of this postulated link between Christ’s presence, relationships and human dignity, I propose three (Eucharistic) theses, based inter alia on the South African story told above. I am of the opinion that the historical disfiguration of the Eucharist has had enduring implications for human dignity in South Africa, as it has fundamentally affected our relationships. The first of these theses are: human dignity hinges on the embracing of the “other”; human indignity results from the exclusion of the “other.”

2.2 Human Dignity between Exclusive Enclaving and Inclusive Embracing The Synod of 1857 tried to find a compromise for the sake of “the weakness” of some. These “weaker” believers “were probably seeking for ways to affirm their identity and ensure their survival. In situations like these, which are playing out with increasing frequency in various forms in our globalising and polarising world today, the temptation looms large to compromise the grace of God’s embrace in the name of protecting identity, establishing security or ensuring survival. Amidst these temptations, the right administration of the Lord’s Supper serves as a continual reminder to the church to embody visibly God’s haunting hospitality.”²³  Several scholars have argued this point. cf. Sherlock, C., The Doctrine of Humanity (Leicester: Inter-Varsity Press, 1996), 158 – 160. Sherlock contends: “The affirmation of personal human dignity is understandable only in the light of my relation to others, and both they and I are embraced in, through and by Christ” (160); cf. also Louw, D., who opts for a pneumatological, and therefore inhabitational, approach to human dignity. He speaks about the effect that stigmatization (a distorted relationship) can have on people, robbing them of their human dignity. Louw, D., Cura Vitae. Illness and the Healing of Life (Wellington: Lux Verbi.BM, 2008), 426; R. Botman refers to the covenantal dimension of human dignity, which presupposes relationships not only between God and humans, but also between humans as such. cf. Botman, Covenantal Anthropology, 82– 86.  Vosloo, The Welcoming Table?, 500 – 501.

210

Johan Cilliers

Could we contend that the temptation to use some form of “ethnic- religious” identity as argument to ensure survival and security is still very much alive in South Africa today? The Dutch Reformed Church, for instance, still remains white to a large extent.²⁴ It would seem that the syndrome of enclavement, with its tendency to rather exclude than include, still permeates at least certain sectors of the South African cultural and religious landscape.²⁵ Taking “Afrikaner Identity” as a case in point, the following diagnosis can indeed be made: An enclave – like for instance formed around “Afrikaner Identity” before and during apartheid – differentiates itself from other groups in order to create internal cohesion. An enclave is directed against the “other,” which could, again in the instance of historical Afri-

 The decision of the Synod of 1847 was revoked by the Western Cape Synod of the Dutch Reformed Church in October 2007, followed by a similar decision by the Eastern Cape Synod. At the Synod of the Western Cape, Boesak (then Moderator of the Western Cape Synod of the Uniting Reformed Church) accepted this decision in an emotional speech, saying, inter alia: “The decision of 1857 was taken in the sign of exclusivity and human weakness; the decision of 2007 is taken in the sign of the inclusivity of God’s embrace.” Handelinge van die Vyf en veertigste vergadering van die Sinode van die Ned Geref Kerk in Suid-Afrika (Wes-en Suid-Kaapland, 15 – 19 Oktober 2007), 116. The de facto situation – five years later – is, however, still that the Dutch Reformed Church is predominantly white, and that the longed for re-unification of the Dutch Reformed “family of churches” has not yet taken place. Recently, a book was published voicing the opinions of 18 prominent theologians and other well-known people in South Africa, which basically calls for a more critical evaluation of the Belhar Confession, illustrating the fact that this fundamental document is still not acceptable for certain sectors of the Church and population. cf. Theron, P, red., Belhar Geweeg (Johannesburg: Kraal Uitgewers, 2012).  When one measures this syndrome of enclavement against Calvin’s thoughts on the embracement of the “other,” the differences become more than apparent: “Our Saviour having shown that the term neighbour comprehends the most remote stranger, there is no reason for limiting the precept of love to our own connections. The whole human race, without exception, is to be embraced with one feeling of charity: that here there is no distinction of Greek or Barbarian, worthy or unworthy, friend or foe, since all are to be viewed not in themselves, but in God. If we turn from this view, there is no wonder that we entangle ourselves in error. Wherefore, if we would hold the true course in love, our first step must be to turn the eyes not to human beings, the sight of which might oftener produce hatred than love, but to God, who require that the love we owe to him be diffused among all humankind, so that our fundamental principle must ever be, Let a person be who they may, they are still to be loved, because God is loved.” Calvin, J., Institutes of the Christian Religion, ed. McNeill, J. T, trans. Battles, F. L., 2 vols, Library of Christian Classics (Philadelphia: Westminster Press, 1960), II/8.55. It is clear that one cannot simply equate Calvin’s thoughts in this regard with the notion of “embracing the other,” as for instance in the work of Volf, M. (cf. footnote 30). Obviously there are historical discontinuities. But it remains a remarkable fact that Calvin spoke voluminously about the relationship between our position as Christians and those on the outside, the “most remote stranger,” even stating that they, together with the whole human race, are “to be embraced,” as in the quote above.

The Role of the Eucharist in Human Dignity: a South African Story

211

kaner identity, be seen as “other” empires (like the British – during the Boer wars), “other” races (as expressed during apartheid), “other” languages (as exemplified during the socalled “language movement”: or “Taalbeweging”), etc. Enclaves often operate with syndromes of anxiety (the “black danger,” or the “red, i. e. Roman Catholic danger,” etc.) and (often extreme) efforts to maintain the “purity” of the enclave. In typical enclave mentality, you are either “in” or “out.” No compromise, no grey areas – things are black and white.²⁶

It would seem that, even 18 years after the official demise of apartheid, the tendency to migrate inwards, and to project guilt onto “the other,” is still with us. It is as if the myth of separation between “us” and “them,” so integral to the ideology of apartheid, has come back to haunt us. The legalized borders of the enclave may have been abolished, but that does not necessarily mean that the spirit of the enclave is not still alive and well in South Africa, at least within certain Dutch Reformed Church realities.²⁷ The notion of “embracing the other” again indicates that human dignity is not so much a personal quality somehow inherent in human beings, but rather a relational concept – just as exclusion could be described as a type of “relation,” resulting in human indignity.²⁸ This would imply that those within their enclave  Cilliers, J. and Nell, I., “Within the enclave: Profiling South African Social and Religious Developments Since 1994,” Verbum et Ecclesia 32, no. 1 (2011), 1– 7; cf. also Aaboe, J., The Other and the Construction of Cultural and Christian identity: The Case of the Dutch Reformed Church in Transition. Unpublished PhD (University of Cape Town, 2007), 65.  cf. Cilliers, J., “Preaching between Assimilation and Separation: Perspectives on Church and State in South African Society,” in Preaching: Does it Make a Difference?, ed. Lindhardt, M. and Thomsen., H. Studia Homiletica 7 (2010): 73.  M. Volf speaks about the “drama” of embrace in four acts, keeping in mind that the notion of “embracing” might be viewed differently in different cultures. M. Volf, Exclusion & Embrace: A Theological Exploration of Identity, Otherness, and Reconciliation (Nashville: Abingdon, 1996), 140 – 147. For him, it, however, forms a basic metaphor for moving out of the exclusion of the enclave. Volf also offers a distinct theological underpinning for this concept: the Christian Scriptures attest that God does not abandon the godless to their evil, but gives of Himself to bring them into communion. We are called to do likewise – whoever our “enemies” and whoever we may be. The fourfold structure of embracement proposed by Volf could be summarized briefly as follows: The first act of embracing entails opening up your arms. This indicates a code of desire for the other, and a “sign that I have created space in myself for the other to come in and that I have made a movement out of myself so as to enter the space created by the other” (141). As first act, it suggests a fissure in the self and a gesture of invitation. Significantly, Volf speaks of the second act of embracement as one of waiting. “The waiting self can move the other to make the movement toward the self, but its power to do so is the power of signalled desire, of created space, and opened boundary of the self, not the power that breaks the boundaries of the other and forces the fulfilment of desire” (142– 143). Embracing does not mean grasping the other through force of power. But, according to Volf, there must also be an act

212

Johan Cilliers

lose their human dignity, just as those who are excluded are deprived of their human dignity. Exclusion causes, and maintains, human indignity – for all involved. Embracing, on the contrary, refers to a habitus, a way of relating to one another, a way of stepping out of the enclave and seeking the other in an act of restorative dignity. Embracing, in terms of the Eucharist, indicates a way of being grafted into the relationship with the present Christ, but also into his body, the Church (Christ’s ecclesial presence). And it is in and through this act of embracement that human dignity is given. This leads to our second thesis: seen from the perspective of the Eucharist, human dignity is given in the reversal of traditional relationships.

2.3 Human Dignity between Weak “Power” and Powerful “Weakness” The decision taken by the Synod of 1857 in favour of “the weakness of some” in fact represented a form of ideological self-deception.²⁹ It signified an act of masking – with the intention to stay in control and retain the power. This is yet another paradox in the South African Eucharistic story: the arguments that were put forward in favour of “weakness” in fact expressed a (masked) form of power. One could rightly ask: because of the weakness of some – or power? The powerful were hiding behind a mask of “weakness.” This mask was partly constructed of “scriptural correctness,” of canonical “proofs” that people should be kept apart. It was also donned under the guise of “obedience to the law,” although, as we have seen, this backfired in the faces of those that wore this mask. In reality, a double-masking took place. When people empower themselves with masks, they often simultaneously need to disempower others with different

three: closing the arms. “This is the goal of embrace, the embrace proper, which is unthinkable without reciprocity … “ (143). This reciprocity does not indicate a hard touch, but rather the soft touch of respect. Embracing should not be perverted into a smothering or crushing “bear-hug.” In this embrace, the identity of the self is preserved and transformed, and the alterity of the other is affirmed and respected. Following Volf’s metaphor, this phase must, however, lead to act four: the opening of the arms again. “If the embrace is not to cancel itself, the arms must open again” (144). The call to “embrace the other” is never a call to remake the other into one’s own image. In effect, Volf’s theological understanding of embrace opens itself to religious pluralism by upholding the importance of different religious and cultural traditions for the formation of personal and group identity. This formation of identities may, however, never again deteriorate into new forms of “apartheid.”  Boesak, Foreword, xii.

The Role of the Eucharist in Human Dignity: a South African Story

213

masks, masks that do not grant power, but rather stifle dignity. The one mask empowers with “dignity”; the other disempowers towards “indignity.” In the process, the real faces of both the powerful and the powerless are hidden, and true interfacing becomes impossible.³⁰ The Eucharist unmasks. The presence of Christ, and the relationship to Him, effects a reversal of relationships: the powerful become weak, and the weak powerful.³¹ The Eucharist, as sacramental embodiment of the gospel, actually speaks of a double parody: those that crucified Christ parodied Him as “King of the Jews,” i. e. as powerful. ³² But the parody boomerangs on them: their parody is actually parodied by the truth that Jesus is powerful – but with a different kind of might.³³ The power of the cross is different; it paradoxically gives life by resisting death and control through vulnerability and apparent insignificance.³⁴ This “power that is weakness” thoroughly opposes all victimizing powers; it

 cf. Campbell, C. L. and Cilliers, J., Preaching Fools. The Gospel as a Rhetoric of Folly (Waco, Texas: Baylor University Press, 2012), 173.  cf. for instance what Paul writes in First Corinthians 1:17– 25: “For Christ did not send me to baptize but to proclaim the gospel, and not with eloquent wisdom, so that the cross of Christ might not be emptied of its power. For the message about the cross is foolishness to those who are perishing, but to us who are being saved it is the power of God. For it is written, ‘I will destroy the wisdom of the wise, and the discernment of the discerning I will thwart.’ Where is the one who is wise? Where is the scribe? Where is the debater of this age? Has not God made foolish the wisdom of the world? For since, in the wisdom of God, the world did not know God through wisdom, God decided, through the foolishness of our proclamation, to save those who believe. For Jews demand signs and Greeks desire wisdom, but we proclaim Christ crucified, a stumbling block to Jews and foolishness to Gentiles, but to those who are the called, both Jews and Greeks, Christ the power of God and the wisdom of God. For God’s foolishness is wiser than human wisdom, and God’s weakness is stronger than human strength.”  Speaking about Jesus’ triumphal entry into Jerusalem, riding on the back of a donkey, Charles Campbell reminds us: “The whole time, however, Jesus is turning the world’s notions of power and rule and authority on their head. His theatre is a wonderful piece of political parody. In his triumphal entry Jesus parodies the powers of the world and their pretensions to glory and dominion, and he enacts an alternative to the world’s notions of power. He comes not as one who lords his authority over others, but as a servant who rejects domination. He comes not with pomp and wealth, but as one identified with the poor. He comes not as a mighty warrior, but as one who refuses to rely on violence. Jesus resists the world’s notions of power, and he enacts the subversive, nonviolent reign of God in the midst of the city.”Campbell and Cilliers, Preaching Fools, 25 – 26.  Cf. Marcus, J., “Crucifixion as Parodic Exaltation” Journal of Biblical Literature 125, 1 (2006), 86 – 87.  Bond, L. S., Trouble With Jesus: Women, Christology, and Preaching (St. Louis: Chalice, 1999), 127.

214

Johan Cilliers

stands as a challenge to all persons and realities that use their power to inflict indignity and suffering.³⁵ This strange power of the cross subverts all forms of control. But what happens when the alibi of “the weakness of some” is used? This paradoxical reversal of relationships between those with, and those without, power is again reversed. The reversal of the reversal is reversed; the parody of the parody is parodied (could we speak of a triple parody?). Now the old order, the old way of thinking about power and weakness is brought back, but under a mask – to conceal the desire for power-as-control.³⁶ In effect, this reversal back to the old order cuts out the heart of the sacrament – which speaks of a new order, a new reality – where those who (really) are weak, are strong; and those who (really) are strong, are weak. In contrast, the old order adheres to an understanding and practice of relationships, a power-play of the domination and subservience that instigate and legitimize human indignity; it is therefore essentially anti-sacramental. This brings us to our third thesis: human dignity has sacramental dimensions; human indignity is anti-sacramental.

2.4 Human Dignity between Embodying Sacrament and Dis-Embodying Sacrilege It is a known fact that apartheid, at its core, always had a “religious” character, but it represents religion gone terribly wrong – it could, indeed, be described as a dehumanizing “pseudo-gospel.”³⁷ Perhaps it could be said even more explicitly: apartheid stemmed from a sacramental disfiguration, a de-sacralization of the Eucharist, and, therefore, of the body of Christ, and, consequently, of the bodies of those that partake (or rather: are refused participation) in the Eucharist. Christ’s body was fragmented – resulting in the fragmentation of the Church, and, ultimately, the South African society. It was indeed a heresy with devastating social

 Koontz, G. G., “The Liberation of Atonement,” The Mennonite Quarterly Review 63 (April 1989), 183.  Such power-as-control can take the form of conceptual control (it defines what is orthodox or heretical), or behavioral control (it determines what practices are allowed or not), or relational control (it attempts to manipulate relationships). cf. Campbell and Cilliers, Preaching Fool, 56.  Boesak, A., He made us all, but… in Apartheid is a Heresy. ed De Gruchy, J. and Villa-Vicencio, C. (Cape Town: David Philip Publisher Pty Ltd, 1983), 5 – 7.

The Role of the Eucharist in Human Dignity: a South African Story

215

consequences.³⁸ One cannot miss the sad irony of this heresy: on the one hand, colonialists often said that they brought Christianity to South Africa, i. e. that they brought the presence of Christ to South Africa, celebrated in the Eucharist; on the other hand, it was exactly these devout Calvinistic Christians that refused the body of Christ at the Lord’s Table, and, in effect, shattered and disfigured this body. I believe that this (sacramental) disfiguration and de-sacralization of the body is still rife in South Africa, even centuries later. It seems to be embedded in our DNA, and becomes evident in a reversal of human dignity into human indignity. One could say that the South African notion of ubuntu ³⁹, which stresses the humanity of people in community with others (“I am, because you are”), has, in the recent past, been changed into the phenomenon of into. ⁴⁰

 The World Alliance of Reformed Churches declared apartheid sinful, and the theological and moral justification of it a heresy, in 1982. This declaration was dramatically underlined when the delegations of the black Dutch Reformed Churches refused to share the Lord’s Supper with the delegation from the white Dutch Reformed Church, stating that it was impossible to do this while the status quo in South Africa was the direct opposite. This act sparked a huge controversy and subsequent debate in South Africa at the time. cf. Vosloo, The Welcoming Table?, 497. By calling it a heresy, apartheid was “taken from its political framework and placed in the centre of the life of the Church. Dealing with apartheid means dealing with the very heart of the Gospel: the Table of the Lord.” Boesak, Foreword, xi.  Etymologically speaking, the term ubuntu comes from the Zulu and Sotho versions of a traditional African aphorism, often translated as “a person is a person through other persons”: umuntu ngumuntu ngabantu. Motho ke motho ka batho. Ubuntu is a combination of Ubu and ntu – the latter being a common root in most Sub-Saharan African languages, resulting in variations such as shintu, muntu, Bantu, wuntu, kantu, buntu, etc. Ntu, as such, simply means “human.” Of course, ubuntu could also be, and has often been, romanticized or used to promote political and exclusivist positions that function as a sort of ostracizing and populist ideology. It is quite easy to climb onto the bandwagon of ubuntu. Unfortunately, it can be viewed and misused as a magic wand that must lubricate society as a type of deus ex machina, glossing over, or sidestepping, real conflict. Van Binsbergen, W., Intercultural Encounters. African and Anthropological Lessons towards a Philosophy of Interculturality (Münster: Lit Verlag, 2003), 428, 450. It could serve as a useful, but premature, pacifier. Worst of all: it may be distorted, specifically also in the South African context, to legitimize a new form of “apartheid” or ethnocracy or pigmentocracy, in which culture or race or ethnicity draws new, or redraws old, boundaries between the diversity of people that constitute our society. Mdluli is quite vehement in his critique that ubuntu is presently being abused in the service of political and ideological aspirations when he states that “this concept has been reclaimed by the African bureaucratic bourgeoisie to legitimize its own hegemony in the political struggles.” Mdluli, P., “Ubuntu-Botho: Inkatha’s ‘People Education,’” Transformation 5 (1986), 60 – 77.  cf. Cilliers, J., “In Search of Meaning between Ubuntu and Into: Perspectives on Preaching in Post-Apartheid South Africa,” in Preaching: Does it Make a Difference?, ed. Lindhardt, M. and H. Thomsen, H. Studia Homiletica 7 (2010), 77– 87.

216

Johan Cilliers

The opposite of ubuntu could be called into, which literally means “a thing.” If this happens, you no longer belong to humanity, and, in a sense, become a thing without humanness. Then you have a movement from ntu (the root word for human) into into. I want to argue here that South Africa is presently going through such a movement from ubu-ntu into into, in which people often treat one another not as human beings, but as things – knowing quite well that such an argument could be contentious and indeed one-sided.⁴¹ This phenomenon of treating fellow human beings as into is of course nothing new: under apartheid, different forms of dehumanizing-into-into were practised and indeed officially legitimized.⁴² But certain phenomena in present-day South Africa could also be viewed from this perspective: according to statistics, South Africa still has one of the highest criminal records in the world. Each year, 31 out of every 100 000 people are murdered in South Africa (15 609 during the past year), in comparison with an average of 7 per 100 000 worldwide – to name but one aspect of criminality in South Africa.⁴³ But it is not only individual murders that are the issue. Communities are increasingly confronting those in power – the recent clash (16th August 2012) between police and striking miners at the Lonmin mine in the Marikana district being a bloody case in point, resulting in the death of 36 miners, 2 policeman and 4 unidentified people, with 78 injured – sending shockwaves across the globe. The media even compared this massacre to the Sharpeville massacre of 1960, one of the darkest days of apartheid. It prompted the question: could such an event really take place in the so-called new, democratic South Africa? But, given our history, such, and similar, events are not that unexpected. If people are viewed as inhumane things, it is easy to murder them; when they are evaluated as disposable matter, it is easy to shoot them. If one keeps the sacramental origins of apartheid in mind, we could say that each transgression that “we” commit against “them,” each blow that is struck against “the other,” fun-

 It could even be construed as a typically Western construct or projection.  Our relatively peaceful political transition in 1994, viewed by many as a miracle, could be ascribed inter alia to the African sense of ubuntu. This brought an end to the times when people were stripped of their dignity and had to use ubulwane (animal-like behaviour) to uphold the laws of apartheid. According to Maphisa, “the transformation of an apartheid South Africa into a democracy is a rediscovery of Ubuntu.” Maphisa, S., Man in Constant Search of Ubuntu: A Dramatist’s Obsession (Piermaritzburg: University of Natal, AIDSA, 1994), 8. The spirit of ubuntu has undoubtedly helped us, specifically in the sphere of reconciliation. In short: without ubuntu, there would probably be no “new South Africa.” Van Binsbergen, Intercultural Encounters, 440.  Statistics supplied in Parliament on 20th September 2012 by Nathi Mthethwa, Minister of Police.

The Role of the Eucharist in Human Dignity: a South African Story

217

damentally represents yet another sacramental sacrilege, yet another repeated Eucharistic heresy.⁴⁴ The sacredness of the sacrament of the body then forms no protective barrier between perpetrator and victim. Then, the body is no longer seen as sacramental bearer of the spirit, but it is objectified and instrumentalized – viewed as into, a thing. ⁴⁵

 To reiterate: those that propagated separation at the Lord’s Table were staunch Calvinists, but if one compares this de-sacralization of human life and the human body with Calvin’s thoughts on the worth (dignity) of life, it becomes abundantly clear that the Reformer’s understanding of the unity of life was completely different, in fact, diametrically the opposite, for instance, when he states: “Since the Lord has bound the whole human race by a kind of unity, the safety of all ought to be considered as entrusted to each. In general, therefore, all violence and injustice, and every kind of harm from which our neighbour’s body suffers, is prohibited. Accordingly, we are required faithfully to do what in us lies to defend the life of our neighbours, to promote whatever tends to their tranquillity, to be vigilant in warding off harm, and, when danger comes, to assist in removing it… Humanity is both the image of God and our flesh. Wherefore, if we would not violate the image of God, we must hold the human person sacred – if we would not divest ourselves of humanity, we must cherish our own flesh.” Calvin, Institutions, II/ 8.39,40.  The notion of the sacrament of the body has been put forward by many scholars. Within the Reformed-Calvinistic tradition one can, for instance, find the roots of this sacramental understanding of life in the works of the famous Dutch theologian Arnold van Ruler. Within the context of his “relatively independent pneumatology,” he often spoke about the fact that the Spirit has entered the humanum to the fullest extent of the word, and that a true mixing (“vermenging”) of these realities has taken place, granting a new dignity to humanity through this inhabitatio Spiritus Sancti. cf. van Ruler, A., Theologisch Werk, Deel VI (Nijkerk: Callenbach, 1973), 21; Commenting on the pneumatology of Van Ruler, Jac Rebel states as follows: “Not only man and church, but as well nature, culture, history and governments are shapes of the Spirit.” Rebel, J. J., Pastoraat in Peneumatologisch Perspektief. Een theologische verantwoording vanuit het denken van A. A. van Ruler (Kampen: Kok, 1981), 363. Another famous theologian from the Dutch tradition that developed a “sacramental theology” was, of course, Gerardus van der Leeuw, although his approach differed considerably from that of Van Ruler. cf. van der Leeuw, G., Sacramentstheologie (Nijkerk: Callenbach, 1949). Speaking from a pastoral care perspective, Daniël Louw has developed this notion of sacramentality of the body within an African context. cf. Louw, Cura Vitae, 88 – 89. Jacques Sarano, speaking about the body as “sign or sacrament of the spirit,” summarises the notion of the sacrament of the body well: “In short, the body is not a region of the person; it is the very “face” of the person, where one can read the wishes of the person. The body is not simply that through which the spirit becomes a singular person; rather, it is through the body that the person witnesses to its spirit, to the spirit. It is through my body that I accept or refuse this witness of the spirit; from this refusal results the body-object, the body-residue, the nonassumed body. The body is the interpreter, the translator, the revealer, the catalyzer, the spokesman, the herald who proclaims – in short, the body is the symbol of my choice. It is the mediator of the spirit.” J. Sarano, The Meaning of the Body, trans. Farley, J. H. (Philadelphia: Westminster Press, 1960), 117.

218

Johan Cilliers

I believe that the deepest tragedy of South African society remains a sacramental one, even if those that instigate those tragedies have no inkling of what they are actually doing. In essence, criminality represents a form of anti-sacramentality; murder constitutes an anti-sacramental act, a most severe manifestation of shattered relationships, i. e. of human indignity.

3 Conclusion It is obvious that the South African story of the Eucharist must be understood within its historical context, and must not be over-interpreted, but it is also clear that this story did play a significant role not only in the establishment of separate churches, but, ultimately, also in the separation of groups in South Africa. The symbolical and emotional significance of the inability of people to be united within this most intimate space for unification still haunts us today. The question remains: can this negative heritage be turned around? At least this must be said: if the misappropriation of the Eucharist had the power to alienate people from one another in such a profound manner, who knows what power the Eucharist may have to foster embracement of one another? Who knows what sacramental space it can open up against the social syndrome of exclusivist enclaving?⁴⁶ Of course, even questions like these may be seen by many as wishful and impractical thinking, but imagine what symbolical message it could be to all South Africans if at least the churches could demonstrate their unity within the space of the Lord’s Supper. This would imply that the different churches (denominations) will have to cross borders in order to be embraced by, and to embrace, the other. We will have to move beyond denominationalism if we hope to have any impact on society. We will have to revisit the hermeneutical space of the Ecumenical Church in order to address societal ills in our country. We will have to break bread, and drink wine together. Impossible? Probably. And yet …

 The concept of such a healing, reconciliatory space within South African society is of course a complex one. cf. my discussions in Cilliers, J., “Religious and Cultural Transformations and the Challenges for the Churches – A South African Perspective,” Praktiese Teologie in Suid-Afrika 22, no.2 (2007), 1– 19; also Cilliers, J., “Creating Space within the Dynamics of Interculturality: The Impact of Religious and Cultural Transformations in Post-Apartheid South Africa,” in Secularization Theories, Religious Identity and Practical Theology. Proceedings of the IAPT Conference Berlin 2007, ed. W. Gräb and L. Charbonnier. International Practical Theology 7 (Berlin: Transaction Publishers, 2009), 260 – 270.

The Role of the Eucharist in Human Dignity: a South African Story

219

Bibliography Aaboe, J. The Other and the Construction of Cultural and Christian identity: The Case of the Dutch Reformed Church in Transition. Unpublished PhD. University of Cape Town, 2007. Piet Theron, ed. Belhar Geweeg. Johannesburg: Kraal Uitgewers, 2012. Van Binsbergen,. W. Intercultural Encounters. African and Anthropological Lessons towards a Philosophy of Interculturality. Münster: Lit Verlag, 2003. Boesak, A. Foreword. In Apartheid Is a Heresy, edited by De Gruchy, J. and Villa-Vicencio, C., xi. Cape Town: David Philip Publisher Pty Ltd, 1983. Boesak, A. “He Made Us All, But … “ In Apartheid Is a Heresy, edited by De Gruchy, J. and Villa-Vicencio C. Cape Town: David Philip Publisher Pty Ltd, 1983, 5 – 7. Bond, L. S. Trouble with Jesus: Women, Christology, and Preaching. St. Louis: Chalice, 1999. Botman, H. R. “Covenantal Anthropology: Integrating Three Contemporary Discourses of Human Dignity.” In God and Human Dignity, edited by Soulen, R. K. and Woodhead L. Grand Rapids: Eerdmans, 2006, 72 – 86. Calvin, J. Institutes of the Christian Religion, ed. McNeill, J. T., trans. Battles, F. L., 2 vols. Library of Christian Classics. Philadelphia: Westminster Press, 1960. Campbell, C. L. and Cilliers, J. Preaching Fools. The Gospel as a Rhetoric of Folly. Waco, Texas: Baylor University Press, 2012. Cilliers, J. “Creating Space within the Dynamics of Interculturality: The Impact of Religious and Cultural Transformations in Post-Apartheid South Africa.” In Secularization Theories, Religious Identity and Practical Theology. Proceedings of the IAPT Conference Berlin 2007, edited by Gräb, W., Charbonnier, L. International Practical Theology 7 (Berlin: Transaction Publishers, 2009), 260 – 270. Cilliers, J. “Religious and Cultural Transformations and the Challenges for the Churches – A South African Perspective.” Praktiese Teologie in Suid-Afrika 22, no. 2 (2007), 1 – 19. Cilliers, J. “Preaching between Assimilation and Separation: Perspectives on Church and State in South African Society.” In Preaching: Does it Make a Difference?, edited by Lindhardt, M. and Thomsen, H. Studia Homiletica 7 (2010). Cilliers, J. “In Search of Meaning between Ubuntu and Into: Perspectives on Preaching in Post-Apartheid South Africa.” In Preaching: Does it make a Difference?, edited by Lindhardt M. and Thomsen, H. Studia Homiletica 7 (2010), 77 – 87. Cilliers, J. and Nell, I. “Within the Enclave: Profiling South African Social and Religious Developments Since 1994.” Verbum et Ecclesia 32, no. 1 (2011), 1 – 7. Coertzen, P. Die Hugenote van Suid-Afrika 1688 – 1988. Kaapstad: Tafelberg, 1988. Handelinge van die Vyf en veertigste vergadering van die Sinode van die Ned Geref Kerk in Suid-Afrika. Wes-en Suid-Kaapland, 15 – 19 Oktober 2007. Koontz, G. G. “The Liberation of Atonement.” The Mennonite Quarterly Review 63 (April 1989), 183. van der Leeuw, G. Sacramentstheologie. Nijkerk: Callenbach, 1949. Loff, C. Dogter of Verstoteling? Kantaantekeninge by die geskiedenis van die Nederduitse Gereformeerde Sendingkerk in Suid-Afrika. Kaapstad: Uitgegee deur die Predikante Broederkring, 1981. Loff, C. “The History of a Heresy.” In Apartheid Is a Heresy, edited by De Gruchy, J. and Villa-Vicencio C. Cape Town: David Philip Publisher Pty Ltd, 1983.

220

Johan Cilliers

Loff, C. “Racism, Economic Dependence and the Family of Dutch Reformed Churches.” In Conference on Economic Development and Racial Domination. Bellville: University of Western Cape, 1984. Louw, D. Cura Vitae. Illness and the Healing of Life. Wellington: Lux Verbi.BM, 2008. Marcus, J. “Crucifixion as Parodic Exaltation.” Journal of Biblical Literature 125, no. 1 (2006), 86 – 87. Maphisa, S. Man in Constant Search of Ubuntu: A Dramatist’s Obsession. Piermaritzburg: University of Natal, AIDSA, 1994. Mdluli, P. “Ubuntu-Botho: Inkatha’s ‘People Education’.” Transformation 5 (1986), 60 – 77. Menswaardig, red. Cas Vos en J. Müller. Johannesburg: Orion, 1994. Pauw, C., Anti-Apartheid Theology in the Dutch Reformed Family of Churches: A Depth-Hermeneutical Analysis. Amsterdam: Vrije Universiteit, 2007. Purcell, M. “‘This Is My Body’ Which Is ‘For You’… Ethically Speaking.” In The Presence of Transcendence. Thinking ‘Sacrament’ in a Postmodern Age, edited by Boeve, L. and Ries, J. C. Leuven – Paris – Sterling, VA: Peeters, 2001. Rebel, J. J. Pastoraat in Peneumatologisch Perspektief. Een theologische verantwoording vanuit het denken van A.A. van Ruler. Kampen: Kok, 1998. Sarano, J. The Meaning of the Body, trans. J. H. Farley. Philadelphia: Westminster Press, 1960. Ricoeur, P. Memory, History, Forgetting. Chicago: University of Chicago Press, 2004. van Ruler, A. Theologisch Werk, Deel VI. Nijkerk: Callenbach, 1973. Sherlock, C. The Doctrine of Humanity. Leicester: Inter-Varsity Press, 1996. Smit, D. J. “Beyond Augsburg: Calvin on the Real Presence of Christ in the Lord’s Supper.” Lutheran Forum 46, no. 1 (2012). Smit, D. J. “… wahrhafte Teilhaber an der wahren Substanz des Leibes und Blutes Jesu Christi…” In Johannes Calvin ökumenisch gelesen, herausgegeben von Birmelé, A. und Thönissen W. Leipzig: Bonifatius, 2012, 71 – 96. Soulen R. K. and Woodhead, L. “Contextualising Human Dignity.” In God and Human Dignity, edited by Soulen, R. K. and Woodhead L. Grand Rapids: Eerdmans, 2006, 5 – 6. Thompson, J. B. Studies in the Theory of Ideology. Cambridge: Polity Press, 1984. van der Ven, J., Dreyer, J. S. and Pieterse, H. J. C., Is There a God of Human Rights? The Complex Relationship between Human Rights and Religion: A South African Case. Leiden/Boston: Brill, 2004. Volf, M. Exclusion & Embrace: A Theological Exploration of Identity, Otherness, and Reconciliation. Nashville: Abingdon, 1996. Vosloo, R. “Reconfiguring Ecclesial Identity: In Conversation with Paul Ricoeur.” Studia Historiae Ecclesiasticae. Journal of the Church History Society of Southern Africa. 32, no. 1 (2007), 273 – 293. Vosloo, R. “The Welcoming Table? The Lord’s Supper, Exclusion, and the Reformed Tradition.” In Strangers and Pilgrims on Earth. Essays in Honour of Abraham van de Beek, edited by Van der Borght, E. and van Geest, P. Leiden/Boston: Brill, 2012. Welker, M. Was geht vor beim Abendmahl? Gütersloh: Gütersloher Verlagshaus, 2004. Wepener, C. “Still ‘Because of the Weakness of some’? A Descriptive Exploration of the Lord’s Supper in South Africa, 1948 – 2002.” Jaarboek voor liturgie-onderzoek, 18 (2002).

Index of Authors Charbonnier, Lars, Dr. theol., is since 2014 theological director of studies at Führungsakademie für Kirche und Diakonie in Berlin, Germany. He was scientific coordinator of this Religion and Human Rights project 2012/13. Contact: lars. [email protected]. Cilliers, Johan, Dr., is professor of Practical Theology / Homiletics and Liturgy at the Faculty of Theology at Stellenbosch University, South Africa. Contact: [email protected]. Dhouib, Sarhan, Dr. phil., is scientific assistant at the Institute of Philosophy at the University of Kassel, Germany. Contact: [email protected]. Fischer, Johannes, Dr. theol., is professor emeritus of Theological Ethics at the Faculty of Theology at the University of Zurich, Switzerland. Contact: [email protected]. Gräb, Wilhelm, Dr. theol., is professor of Practical theology and director of the Institute of Sociology of Religion at the Faculty of Theology of Humboldt-University Berlin, Germany, as well as extraordinary professor at the Faculty of Theology of Stellenbosch University, South Africa. Contact: wilhelm.graeb@hu-berlin. de. Huber, Wolfgang, Dr. Dr. h.c., was professor of Systematic Theology and Theological Ethics at the University of Heidelberg and is Hon.Prof. at the University of Stellenbosch, the University of Heidelberg and Humboldt-University Berlin. He was from 1994 to 2009 Bishop of the Protestant Church of Berlin-Brandenburg-schlesische Oberlausitz and from 2003 to 2009 Chairperson of the Council of the Evangelical Church in Germany. Contact: [email protected]. Joas, Hans, Dr. Dr. h.c., is Ernst-Troeltsch Honorar Professor for the Sociology of Religion at the Faculty of Theology of Humboldt- University Berlin, Germany, and Professor of Sociology and Social Thought at the University of Chicago. Contact: [email protected]. Koopman, Nico, Dr., is professor of Systematic Theology and currently Dean of the Faculty of Theology at Stellenbosch University, South Africa. Contact: [email protected].

222

Index of Authors

Kumalo, Simangaliso R., Rev. Dr., is Director of Research and Postgraduate Studies at the School of Religion, Philosophy and Classics and Director of the Ujamaa Centre for Community Development and Research of the University of KwaZuluNatal, Pietermaritzburg, South Africa. Contact: [email protected]. Louw, Daniel, Dr., is professor emeritus of Pastoral Care and Counselling at the Faculty of Theology at Stellenbosch University, South Africa. Contact: djl@sun. ac.za. Okyere-Manu, Beatrice, Dr., is lecturer in Ethics Studies at the School of Religion, Philosophy and Classics of the University of KwaZulu-Natal, Pietermaritzburg, South Africa. Contact: [email protected]. Smit, Dirkie, Dr., is professor of Systematic Theology (Dogmatics) at the Faculty of Theology at Stellenbosch University, South Africa. Contact: [email protected].