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In a world of but few moral verities, Judge Richard Posner and others pursuing the economic approach to law have introduced a normative principle into discussions of law and policy that receives very wide currency. They propose that society should always sanction market exchanges, as a means of maximizing wealth, unless some exceptional normative commitment on society's part requires otherwise. Where the principle reigns, nonmarket values are treated as restrictions on individual autonomy requiring special justification.
As a consequence, the justifiability of restricting market freedom becomes a standard mode of framing normative issues. Disagreements about values are formulated as disputes over whether contracts should be enforced. Arguments are made for and against enforcing contracts for the purchase and sale of votes, the intervivos transfer of eyes or kidneys, addictive recreational drugs, enslavement or prostitution, and environmental purity.
For two hundred years, General Assemblies of the Presbyterian Church have been concerned with religious liberty and the relationship of church and state. The first General Assembly might well have heard the echo of Hanover Presbytery's mighty Memorial to the Virginia legislature: “We ask no ecclesiastical establishments for ourselves; neither can we approve of them when granted to others.” Since 1788, our basic Principles of Church Order have placed in the first position the powerful commitment of our Reformed faith to religious liberty: “God alone is Lord of the conscience. … We do not even wish to see any religious constitution aided by the civil power, further than may be necessary for protection and security, and at the same time be equal and common to all others.”
The Bill of Rights in the Constitution of our civil order also accords the first position to this same commitment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. …” These clauses have been remarkably successful in guaranteeing religious liberty and assuring religious peace in a nation of extraordinary religious vitality and pluralism. As we deal with the difficult and controversial issues of religious liberty, we must not lose sight of its many aspects that are not controversial. Freedom of religious belief is unquestioned in this country. The right to basic religious observance is unquestioned. It is unthinkable that civil and political rights might be conditioned on adherence to a particular religious faith. In many countries of the world, none of these things are true.
Because our modern world system emerged within world-wide contexts, we must consider how founding relationships that established it reflect global interconnectedness of their own era. Douglas Sturm has written, “History is a process of new formations. What we are and what we shall become are not givens. They are results of many relations in which we are engaged and whose character we affect, in however small a degree, by the manner of our participation.” Too often this relational perspective has been ignored in propounding origins and fundamental relationships of our modern world. For over five hundred years, for example, Eurocentrism has betrayed indebtedness to Renaissance hubris. Further, contemporary memories of our relational past are laced with policies and perspectives of forebears who constituted nation states. These processes entailed “inventing traditions” post facto, while also vesting collective memories with [hi]stories on behalf of national dignity and imperial stature. Even as false memories have been used for socializing children into citizens, and for motivating troops and voters, they also render indispensable historical understandings problematical. Sometimes there are hints of such fabrications in paradoxical impressions. Edward Lucie-Smith muses: “Granted that piracy is really no more than robbery at sea, how did the crime come to acquire the aura of sinister glamour that still clings to it, an aura which sets the pirate apart from other and more commonplace malefactors?” Piracy's “aura of sinister glamour” is not confined to tropes like Blackbeard, the Jolly Roger, or Long John Silver. “Piracy” has clouded Asian history and rationalized European incursions, at least since the Portuguese captured the fabulous port city of Melaka in 1511.
Our public life takes shape within a field of competing organizational forms. Corporations, assemblies, constitutions, and federations compete for our loyalties, providing models of proper human existence. Like the family, they seek to provide trustworthy and dependable relationships of power and authority that enable us to live, work, argue, and reconcile with each other. Many crucial decisions of our social life revolve finally around the choices we make as a society among these institutional forms and the means by which we evoke deep sentiments of legitimacy and trust to uphold them.
The primary forms of American public life emerged in the rejection of European monarchy and religious establishment. The Constitution replaced the Crown and the denomination came to replace the one true Church. Fundamental to this revolutionary transition were the emergence of covenantal forms of association and democratic assemblies as the constituent elements of legitimate public authority. Social life was not to be governed by hierarchical and patriarchal authority “from above” but by free agreements of the people forged in open public assemblies. This model of legitimate order flowed through both governmental and religious spheres in complex and interpenetrating ways.
According to our Christian tradition, based upon what we have already seen in the Bible, once it is established beyond doubt that a particular ruler is a tyrant or that a particular regime is tyrannical, it forfeits the moral right to govern and the people acquire the right to resist and to find the means to protect their own interests against injustice and oppression. In other words a tyrannical regime has no moral legitimacy. It may be the de facto government and it may even be recognized by other governments and therefore be the de jure or legal government. But if it is a tyrannical regime, it is, from a moral and a theological point of view, illegitimate.
The Kairos Document
It is our belief that civil authority is instituted of God to do good, and that under the biblical imperative all people are obliged to do justice and show special care for the oppressed and the poor. It is this understanding that leaves us with no alternative but to conclude that the South African regime and its colonial domination of Namibia is illegitimate.
The structures of our thinking and ethics are deeply influenced by our social, economic and political environment. One of my concerns as a poor graduate student was how my theology and ethics would be affected by a Ph.D. and a comfortable job as a professor. After teaching graduate students about social ethics for several years I became alarmed at my own insularity from the experience of people at the bottom rungs of our society. In 1986 I began weekly visits to San Quentin Prison.
Entering the maximum security “holes” of the prison, I was amazed and appalled. Strong men, mostly minorities, are locked in small cages with very little privacy, minimal community, loneliness without silence and regimentation without security. They can touch opposite walls and the ceiling of their cells from a standing position; I saw cells with peeling paint where people may stay 23 or more hours per day for years on end. I heard that up to 1,000 of them are likely never again to see the outside world.
Although historically, the phenomenon of spiritual healing emerged as a religious practice within the context of specific religious traditions and has traditionally been ascribed only to mystics, saints, and holy persons, in modern times, a variety of spiritual healing practices unconnected with traditional religion have entered mainstream professional health care. These practices are used in a variety of health care professions, from medicine to nursing, dentistry, and other allied health professions.
For example, some physicians either collaborate with (or refer to) spiritual healers or use “‘healing energy’ through touch” without naming a particular style, school, or technique, and a spiritual healing modality known as Therapeutic Touch is part of the curriculum in many nursing schools. Use of caring or healing touch is increasingly described as potentially useful in various health care settings, from acute care, to surgery, to obstetrical nursing practice; and Reiki, a Japanese form of energy healing, has even been used in efforts to help survivors recover from torture.