3A: The Paradox of Conscience

What do we mean by ‘conscience’? Conscience has been variously construed as a ‘moral sense’, an ‘inner voice’, a divinely implanted faculty for distinguishing right and wrong, an ‘inner court’, a ‘principle of reflection’, and so on.Footnote ⁸ Going beyond a merely moral interpretation, Martha Nussbaum describes conscience as ‘the faculty with which each person searches for the ultimate meaning of life’ (Nussbaum, Reference Nussbaum2008, p. 168). For present purposes, I'll just assume three commonly-accepted features of conscience. First, it involves a set of moral and/or religious beliefs, values, and principles. Second, it's a guide for action and for moral accountability. Third, it's related to certain core values that are somehow basic or central to who we are.

This gives rise to two main questions. First, why should we follow the dictates of our conscience? And second, how exactly should we follow them? With regard to the first question, the most widely accepted rationale is that acting in this way helps us to maintain or preserve our personal integrity. This doesn't mean that when obeying our conscience, we'll always act in a morally correct manner. Our conscience can sometimes err. Rather, as Cheshire Calhoun explains, ‘acting with integrity involves acting on one's own principles’ (Calhoun, Reference Calhoun1995, p. 248, emphasis in original). And ‘acting on one's own principles’ requires following our conscience – that is, conforming to those core values that are basic or central to who we are as persons.

With regard to the second question, there are two basic options. One tempting view that has wide popular appeal is:

This view can be traced back at least to Thomas Aquinas. Aquinas argues that conscience is always authoritative for us. As he famously claims, even an erring conscience binds.Footnote ¹⁰ Against this approach, we might instead embrace:

Notice that Restricted Conscience nicely lines up with the previously discussed Principle of Conscience. This is because if the latter is a merely prima facie duty, this implies that, when arriving at our all-considered moral judgment, we might sometimes decide that this prima facie duty is outweighed by others such that we're obligated to act contrary to what our personal conscience dictates.

Which view – Conscience Absolutism or Restricted Conscience – should we accept? On the one hand, Conscience Absolutism might seem like a truism. Isn't it always morally wrong to act against what our conscience – i.e., our core values – tells us to do? The problem, of course, is that our conscience can sometimes lead us morally astray. In light of this, it might seem more appropriate to adopt a more modest view like Restricted Conscience. Thomas Hill explains the intuitive appeal of such a view as follows:

Since neither private conscience nor public authority are infallible moral guides, we should adopt a more tempered approach that sometimes sides with our conscience, but at other times, when necessary, with public authority.

On the other hand, the second option – viz., Restricted Conscience – has a deeply paradoxical air to it. We can formulate the worry as follows:

Notice that this is strikingly parallel to a more well-known and widely discussed paradox in the literature, viz.:

Indeed, I argue that these paradoxes are just two sides of the same coin. The Paradox of Toleration involves restraining acting upon our conscience vis-à-vis another person's behavior. By contrast, the Paradox of Conscience involves restraining acting upon our conscience vis-à-vis our own behavior. What both paradoxes share in common is a recognition that acting upon our conscience has its limits.

3B: Rethinking Conscience and Integrity

In the rest of this third section, I explore one important attempt to dissolve the so-called Paradox of Conscience. In a response to Thomas Hill's view, Gerald Gaus distinguishes between two very different conceptions of conscience. On what he calls the ‘Personal Conscience Interpretation’, we should rely on our personal internalized moral convictions alone. This view allows for a potential conflict between our private conscience and the demands of public authority. By contrast, on what Gaus calls the ‘Inclusive Conscience Interpretation’, conscience instead involves considering the matter from an inclusive moral viewpoint. This requires assessing all relevant moral factors, including the claims of public authority itself, before deciding how we should act.

Understood the latter way, Gaus argues that ‘the conflict between the claims of conscience and public authority is ultimately illusory’ (Gaus, Reference Gaus, Timmons and Johnson2015, p. 143). That is, there's no possible residual conflict between our private convictions and public authority since both have already been taken into account when arriving at our overall moral judgment – that is, what our ‘inclusive conscience’ tells us to do. In this way, Gaus dissolves the Paradox of Conscience by showing that while we might sometimes be required to act against our private convictions, we're never forced to act against our conscience understood in an inclusive sense.

Despite its appeal, there are two problems with Gaus’ attempt to avoid all potential conflicts of conscience. First, as Hill points out, what Gaus appears to be doing is simply identifying conscience with our all-things-considered moral judgment (Hill, Reference Hill, Timmons and Johnson2015, p. 287). Seen this way, it threatens to make it trivially true that no conflict is possible. Inclusive conscience has presumably weighed all relevant moral factors when arriving at a singular all-things-considered moral judgment, such that no conflicting claims seem possible.

Second and more fundamentally, I don't think that Gaus’ attempted dissolution ultimately succeeds. Instead, he just seems to push the issue a step back. For now we face a potential conflict within our inclusive conscience itself. The basic problem is that an all-things-considered moral judgment is fully compatible with accepting that we might find ourselves ultimately confronted by what Thomas Nagel calls a ‘moral blind alley’ (Nagel, Reference Nagel1979, p. 74). That is, we sometimes face irreconcilable moral dilemmas where – even if we're able to arrive at an all-things-considered moral judgment – all possible courses of action regrettably entail sacrificing one of our deeply cherished ideals for the sake of another.

Where does all this leave us? I agree with Gaus that ‘inclusive conscience’ is the more appealing way to understand the nature of conscience. However, I disagree with his claim that this somehow makes all potential conflicts ‘ultimately illusory’. In light of this, here's my own proposal for a more nuanced and fully developed Principle of Conscience:

Interestingly, this Revised Principle of Conscience combines elements of both Conscience Absolutism and Restricted Conscience as discussed above. In line with the former view, the Revised Principle maintains that it's always right – at least in the so-called ‘subjective’ sense of ought – to obey the dictates of ‘inclusive conscience’ understood as our all-things-considered moral judgment. But in line with the latter view, it acknowledges that what Gaus sees as our merely personal convictions – à la the Personal Conscience Interpretation – can sometimes err, such that it's morally permissible to act contrary to them.

This leads us to two final lessons. First, I argue that we should rethink the nature of conscience. In particular, following Gaus, we should recognize two very different senses of conscience: (1) the loose and popular sense associated with our merely private convictions as such (‘Personal Conscience Interpretation’); and (2) a stricter sense of conscience identified with our reflective all-things-considered moral judgment (‘Inclusive Conscience Interpretation’). This helps to address one standard worry about appeals to conscience in the literature. Critics sometimes argue that conscience isn't deserving of the esteem we typically accord it since it amounts to a merely formal ‘empty box’ into which any beliefs – even highly morally pernicious ones – can be indiscriminately placed (cf. Giulbini, 2016). While the loose sense of conscience is open to this objection, it seems that the stricter sense of conscience – i.e., our reflective all-things-considered moral judgment – deserves much more respect. Nonetheless, we must still regard the Revised Principle of Conscience as only a prima facie duty since even our best all-things-considered moral judgments can sometimes be mistaken. We need to guard against not only faulty reasoning but also the possibility that our all-things-considered moral judgments might suffer from implicit bias, internalized oppression, and other cognitive distortions.

Second, we need to rethink the nature of personal integrity. On one prominent view, defended by Plato and contemporary philosophers like Harry Frankfurt and Christine Korsgaard, personal integrity requires that we are in some sense unified in terms of our overall values. As Simon Blackburn puts it: ‘Integrity especially implies a kind of unity or wholeness, a lack of fault lines or divisions […] It implies that with a fracture, there can be no recovery, no moving on’ (Blackburn, Reference Blackburn2014, pp. 163-64). He criticizes this ideal of integrity as being too ‘rigid’ and ‘simple-minded’ and concludes that personal integrity is not an ‘unalloyed good’ (Blackburn, Reference Blackburn2014, pp. 167-68). If the present account is correct, however, then Blackburn is mistaken about what personal integrity demands. I argue that personal integrity only requires that we're true to our inclusive conscience, i.e., our all-things-considered moral judgments. But as discussed above, this still allows for the possibility that ‘fault lines’ exist within our inclusive conscience itself. That is, our overall core values might be highly pluralistic and conflicted in nature, such that we might not be able to do justice to them all when acting on our conscience.

In general, this discussion shows that what I'm calling the prima facie duty of the Revised Principle of Conscience – which involves following our all-things-considered moral judgment while recognizing both its fallibility and the potential for irresolvable conflicts – is much more complex than it might initially appear and requires sound practical wisdom to be properly enacted.

4A: Conscientious Objection and the Duty of Civility

On to our second main topic: How should we relate to others – especially to our fellow citizens – when engaging in acts of conscience? This is addressed by the second main prima facie duty, viz.:

There are many ways to obey this principle. These include, negatively speaking, refraining from criminal activity or inciting civil unrest, and, positively speaking, performing basic civic duties like paying our taxes or voting. The main question here is: What does the Principle of Societal Maintenance instruct us to do in particular with respect to acts of conscience?

In answering this question, I'll focus mainly on conscientious objection [CO]. This is because other cases – such as civil disobedience which involves publicly breaking the law, or revolt which typically involves armed resistance – introduce more substantive moral concerns. By contrast, CO simply centers on the issue of acting upon conscience as such. Further, since CO is less extreme, the more minimal moral requirements associated with it should also apply to more extreme measures like civil disobedience and revolt. To focus our discussion, I'll use Mark Wicclair's insightful definition of CO as the point of departure. He writes:

Traditionally, discussions of CO have focused on pacifist refusal to perform military service. In recent years, however, the attention has shifted to conscience-based refusals in the health care profession and religious-based exemptions to anti-discrimination laws. Some common examples of CO in medicine involve abortion, sterilization, emergency contraception, assisted reproduction, euthanasia, and withdrawal of life-support, and, in relation to religious-based exemptions, refusals to provide commercial services such as bakery or photography for same-sex weddings or to provide insurance coverage to employees for emergency contraception.Footnote ¹²

Instead of taking up a piecemeal approach, I want to identify more general ethical principles for CO here. To start with, observe that CO imposes certain burdens – often substantial ones – upon those who are denied services due to conscience-based refusals, even if the parties require such services and have a legal right to them. This draws attention to the fact that for conscientious objectors who wish to behave in morally virtuous ways, they need to do more than just fulfill the prima facie duty to obey their conscience. They must also acknowledge prima facie duties that they owe to other people. What are these latter duties?

I think the most plausible candidate revolves around what Rawls calls the ‘duty of civility’.Footnote ¹³ In A Theory of Justice, he describes this as a two-fold duty. On the one hand, we have a duty to comply with democratically enacted laws even when the outcomes of such democratic procedures are ones we disagree with – except in cases when violations of justice are so serious that they call for non-ideal measures such as civil disobedience. On the other hand, we have a duty not to exploit loopholes in the system to unfairly advance our own self-interest (Rawls, Reference Rawls1971, pp. 354-55). And in Political Liberalism, Rawls claims that when we seek to exercise the coercive power of the state with respect to matters of basic justice and constitutional essentials, we have a duty of civility – where this is amounts to a moral rather than legal duty – to offer ‘public reasons’ that draw upon a common point of view, rather than private ones based only on our merely individual comprehensive doctrines (Rawls, Reference Rawls2005, p. 217).

What both Rawlsian accounts have in common is the idea that fulfilling the duty of civility demands, as Cheshire Calhoun puts it, ‘a display of respect, tolerance, or considerateness’ (Calhoun, Reference Calhoun2000, p. 259). In obeying our duty of civility, we show a willingness to interact with our fellow citizens on fair terms of cooperation that express mutual respect, tolerance, and considerateness. Thus, if we want to engage in CO in a morally virtuous way, it seems that we need to balance between two basic moral concerns: (i) a prima facie duty to ourselves to obey our conscience and (ii) a prima facie duty to others to display civility towards them while engaging in such behavior. We'll explore what this balance looks like in the rest of this section.

4B: Ethical Guidelines for Conscientious Objection

What concrete ethical principles should guide us when engaging in CO? Rather than trying to offer an exhaustive treatment, I'll restrict my focus in light of two basic desiderata. First, I want to identify general principles that can apply to most cases of CO. Second, I want to offer guidelines that can potentially achieve broad – even if not unanimous – acceptance among those who genuinely desire to engage in CO in morally virtuous ways.

I'll start with three fundamental requirements that nearly all philosophers accept, viz.:

First, CO must be genuine or sincere. For example, if I claim to oppose mandatory military service on conscience-based grounds, but I'm moved by purely self-interested reasons, then I violate this first principle.

Second, CO must be related to core moral or religious beliefs and values. For example, one recent rationale for conscientiously refusing to wear masks offered by a American lawmaker – viz., because ‘wearing a mask dishonors God’ – might violate this principle if this turns out to be a merely ad hoc or newly-invented belief that has no actual basis in their faith tradition.Footnote ¹⁴

Third, if CO is based on obvious factual errors or illogical reasoning, then one engages in CO badly. Notice that this third principle does not demand that we must be reasonable.Footnote ¹⁵ What counts as being ‘morally reasonable’ is an often highly contested matter, thus violating our second desideratum. Instead, this principle merely claims that one has not only an epistemic duty, but also a related moral duty, to be minimally rational in terms of trying to avoid obvious factual mistakes or illogical reasoning when engaging in CO.

A fourth principle bears upon recent controversies involving anti-maskers and anti-vaxxers, i.e., persons who engage in conscience-based refusals to comply with mask or vaccine mandates. One standard rallying cry is ‘Freedom!’, where this seems to involve the idea that it's fundamentally illegitimate for government to try to restrict their freedom in such ways. Without making any substantive judgments for or against this position, I just want to highlight one basic worry about this rationale. Demands for freedom as such ignore the basic Hobbesian – and indeed, the general social contract tradition – lesson discussed above in §2. There are no unlimited freedoms in civil society. Not only do there exist certain absolute side-constraints that restrict our freedom of conscience: for example, regardless of our religious beliefs, we're not permitted to engage in ritual human sacrifice. In addition, we must recognize that our individual freedom must always be balanced against the basic government interest in establishing laws and policies that promote the ‘general welfare’, ‘common good’, and ‘public safety’. This leads to:

The fifth principle relates mainly to cases of religious-based exemptions to anti-discrimination laws. Well-known examples include bakers and photographers refusing to provide their services for same-sex weddings or public officials refusing to grant marriage licenses to same-sex couples on the basis that doing so violates their religious beliefs. It's important to reiterate that my main concern here is not with the Accommodation or Justification Questions. In particular, I'm not addressing the political issue of whether we should have a right to engage in such acts of conscience. As Jeremy Waldron (Reference Waldron1993) points out, we often have a legal right to act in highly morally objectionable and/or offensive ways. My concern is only with the Conduct Question. Morally speaking, what should we think about such cases?

This is a complex matter. On the one hand, in light of the Principle of Conscience, conscientious objectors should generally refrain from violating their core moral and religious beliefs. On the other hand, in keeping with the Principle of Societal Maintenance, they still have a moral duty to treat their fellow citizens with basic civility and respect. Rather than making judgments about any specific case, I want to propose a general framework for how to approach such matters. I argue that we should think about these cases along a continuum. At one extreme, imagine that the service in question is highly impersonal in nature, e.g., baking a mass-produced cake or merely selling stationary supplies for wedding invitations. At the other extreme, suppose that the service involved is a highly personal matter, e.g., a painter or musical composer offering highly individualized artworks for each of her clients. In the middle lie borderline cases, very likely including some of the examples discussed above.

What this highlights is the fundamental need to exercise good practical wisdom to distinguish between actions that are genuine matters of integrity and those which are not. Following in the tradition of Catholic moral theology, David Oderberg offers a detailed ‘ethics of cooperation’ for when performing certain services do – and do not – render us complicit in what we regard as morally objectionable actions. Some general rules include whether ‘the cooperation was relatively proximate or remote, dispensable or indispensable, whether the primary act is seriously wrong or only a minor wrong’, etc. (Oderberg, Reference Oderberg2018, p. 60). In addition to these suggestions, I think we should recognize – in keeping with our overall emphasis on personal integrity – a general rule that asks whether the nature of the services involved are genuinely expressive of certain core features of the conscientious objector's conscience – that is, her overall identity – or not. This suggests:

There are three basic problems associated with the general tendency to violate this principle. First, this tendency can easily become the moral vice of what Jesse Summers and Walter Sinnott-Armstrong (Reference Summers and Sinnott-Armstrong2019) call ‘scrupolisity’. Rather than being a virtue, this can amount to what they call a ‘moral OCD’ where we have an overly fastidious concern to maintain ‘clean hands’, sometimes accompanied by a mistaken belief in our own moral superiority. Second, we often act upon this tendency inconsistently. We emphasize disassociating from certain people or practices that we find morally objectionable, usually related to socially stigmatized sexual practices. In the meantime, we remain unbothered by associating with other people or practices that are equally or more morally objectionable, even when judged by the standards of our own moral and/or religious traditions.

Third and most important, it seems that all citizens have a reasonable expectation to be able to access basic services or goods without needing to pass a kind of ‘moral screening test’, especially when the services or goods in question are wholly impersonal in nature. Otherwise, this leads to potential widespread ‘conscience wars’ that most likely violate our basic duty of civility. Even if we may have a legal right to behave this way, it seems morally objectionable to make everything a matter of conscience – since people living in a pluralistic democratic society have a reasonable expectation that many interactions in the public sphere should be impersonal in nature and not subject to the whim of each person's private conscience.

The sixth principle is more formal or methodological in nature, applying to all cases of CO. It states:

If we want to engage in CO in a morally virtuous way, then, wherever possible, we should strive to do justice to all of our core values. This can sometimes be a highly difficult affair. In the present context, this requires in particular that conscientious objectors seek to uphold both the prima facie duty to obey one's conscience and the prima facie duty to display basic civility, tolerance, and respect towards our fellow citizens.

There are three main cases here. At one end of the spectrum are cases where a compromise is readily available. For example, in many countries, those who refuse on conscience-based grounds to engage in mandatory military service often have alternative means available for fulfilling their civic duties. These include non-combatant positions or performing public service not related to any war efforts at all. At the other end of the spectrum are cases that seem to permit no compromise. For example, if a health care professional truly believes that abortion and euthanasia are murder, then they should disassociate from this practice altogether. But what happens if no institutional accommodations for CO are available here? In such scenarios, the conscientious objector should either seek to reform the institution in question or else give up their commitment in order to avoid an irreconcilable conflict. In a famous speech delivered while running for the president of the United States, John F. Kennedy provided a paradigmatic example of such integrity when discussing the relationship between his Catholic faith and his official duties as a public servant. As he declared:

In between these two extremes are cases where a conscientious agent – who is deeply committed both to following her conscience and to treating all her fellow citizens with civility and respect – is morally obligated to search for a reasonable compromise. Take the case of a baker who is asked to make a cake for a same-sex wedding that they morally or religiously disapprove of. Simply refusing to do so can be criticized for failing to honor one's moral commitment to treat all one's fellow citizens with basic civility and respect, since the same-sex couple might likely feel stigmatized, discriminated against, or somehow inferior.

What might a reasonable compromise – one that does justice to all of the morally virtuous conscientious objector's core values – look like in this case? If the main worry – as has been the case for most court battles about this issue – is that baking a cake with a certain message somehow amounts to an implicit endorsement of the practice, then one reasonable compromise might be to have a clear disclaimer on one's business window or website explicitly stating that baking cakes in no way implies an endorsement of any practices the cake is related to, including same-sex weddings, etc., while at the same time simply performing this service with no fuss. Alternatively, if one finds writing a specific phrase on the cake somehow too morally objectionable, one can simply sell the cake and inform the client that they must go elsewhere to get the lettering for the cake done. The main point here is that finding a reasonable compromise between all of one's deeply-held values – where, for the morally conscientious agent, this includes both a commitment to one's conscience and to displaying basic civility and respect for one's fellow citizens – is better than simply opting for no reasonable compromise at all.Footnote ¹⁷

Lastly, the seventh principle related to engaging in CO is:

In many ways, this principle picks out a fundamental moral virtue that underlies and supports all of the previous Principles #1-6. As we've seen, CO – as well as other acts of conscience – generate burdens upon our fellow citizens and the potential for violating our basic duty of civility towards them. Therefore, in engaging in CO in a morally virtuous way, we must care about not only the dictates of our own conscience, but also what is conducive to the common good for the society in which we live.