The “right to freedom of thought, conscience and religion,” as the European Convention on Human Rights calls it, is surely among the most important, and the most basic, of human rights. Judgments of conscience are our final verdict on how we are to constitute ourselves. The ability to make such judgments is one of the two capacities jointly necessary for our being active self-constituters. The other is our capacity for freedom, a capacity exercised in our choices to act as conscience dictates. This two-fold capacity for self-constitution is surely the respect in which we differ most profoundly from other animals, and the feature of us in virtue of which we are to be considered persons, not things, creatures with dignity and subjects of rights.
The capacity for judgment, and its exercise in choice, therefore must be protected as much as possible in order that human persons may genuinely act as persons.
Yet that right is qualified: the rights of others, public peace, and public morality are reasons for preventing persons from performing actions they feel compelled to perform by conscience. Nonetheless, the Second Vatican Council’s declaration on religious freedom, Dignitatis Humanae, says that violations of conscience are “intrinsically unjust.” It is thus apt that John Finnis queries, in response:
But should it not be admitted that this is a weak form of intrinsece malum (intrinsic moral wrong), since the identification of the (morally excluded) object of choice involves a reference to (further) intentions and to circumstances—namely, that the proposed coercion is not intended (or needed) for the sake of preserving the rights of others, public peace or public morality?
My purpose here is to suggest that, while the form of intrinsece malum is indeed weak for a certain range of cases, there is one case in which commands contrary to conscience should be considered always and everywhere unjust—intrinsece malum in the strict sense.
The weak cases are of at least the following two sorts. One involves commands contrary to a judgment, in conscience, of permissibility. An agent believes some act to be permissible, but the state rules it out (as when the state forbids abortion). Such commands do not violate conscience even if they are otherwise burdensome, unwanted, or even unwarranted. So, to take the most important example, consider a state that forbids the abortion of unborn children, on grounds that those children are human beings owed the protection against violence owed to all other human beings in the state’s borders; such a state does not violate the conscience of those who believe—in conscience—that abortion is morally permissible.
The second sort of case involves commands contrary to an agent’s self-understood positive obligations. The agent, let us suppose, believes a particular act to be required, in conscience, or by religious judgment. A first condition necessary for public authority to require forbearance contrary to conscience is that the perceived obligatory act be contrary to some significant aspect of the common good. A second is that what is intended in the public authority’s command is not that the agent violate her conscience. The intention of the public authority must not be to suppress conscience, but to suppress acts that are contrary to the public good.
Suppression of such acts will often, of course, have as a side effect that agents do not fulfill those obligations they take themselves to have in conscience, and the risk of this side effect is of considerable significance, and requiring proportionate reasons such as those just mentioned. Still, it is only a risk: the fact that a legitimate authority has proscribed the act gives agents a new reason for action, and agents could act on that reason if they so chose. By contrast, to suppress conscience just as such is to will that another go against conscience, and this can never be right.
As a result, when it comes to cases of permissibility and positive obligation, the state can prevent someone from acting on her conscientious judgment if the prevention is required in order to protect and promote the common good. Doing so need not violate the demands of conscience.
But consider the question of what is forbidden in conscience. There are two ways in which actions may be “forbidden” or “impermissible.” First, if an agent believes, as in the discussion above, that some action is obligatory, then not so acting is consequently forbidden. But the obligatory nature of acting thus is usually, and perhaps always, partly a function of the nature of the circumstances. So, for example, while it is obligatory to feed my children, the impermissibility of not feeding them is mitigated when there is no food to be found. And one circumstance that can play a role in an agent’s deliberations is that the state has forbidden such and such a course of action.
By contrast, consider the second way an action may be forbidden in conscience: when an agent judges that some kind of act may never be done, that the act is intrinsically impermissible. Examples of actions which are always and everywhere impermissible include: killing of the innocent, including deliberate abortion, rape, enslavement, non-marital sex acts, lies, and the denial of one’s faith. The impermissibility of such acts is not a function of whether some other, positive, obligation may be met. Rather, the demand is simply that, whatever one does, one cannot do these things.
As a result, any law that commands an agent to perform an action that she believes is intrinsically impermissible in some sense violates the conscience of that agent. And, by the earlier argument, to intend as such this violation must itself be always and everywhere wrong.
But what about a case where the intention of the public authority was not that the agent violate her conscience, but merely to protect the public good? Consider, for example, a case addressed by Patrick Lee, of the attempt to induce confession from a terrorist in possession of information concerning an impending attack (we may suppose that the terrorist considers it impermissible to speak): “the detainee’s choice may violate his conscience . . . [but] its violating his conscience need not be intended: all one need intend is that he divulge the information . . . its violating his conscience, if that occurs, would be a foreseen possible side effect, not directly willed.”
Such a case shows that it is not, in principle, impermissible for those with political authority to coerce an agent to act when the agent’s judgment of conscience proscribes acting. Yet this case seems to involve the sort of impermissibility that falls out of (what is taken to be) positive obligation. The terrorist does not believe that sharing the plans with another is as such intrinsically immoral; rather, he believes he has, in these circumstances, a positive obligation to protect the secret.
But circumstances can be envisaged in which the terrorist no longer takes himself to have either the obligation to keep the secret, or the the corresponding belief in the impermissibility of revealing the information, and those circumstances might include the fact that an authoritative agent commands compliance. (This is why the terrorist case is different from a seal of the confessional case. A priest genuinely is governed by a negative moral absolute.) In the case of the terrorist, the issuing of the command itself might be taken by the authority to be the creation of circumstances under which the agent might, without violation of conscience, choose to give up the required information.
The terrorist case is thus quite different from, say, a case involving forced participation in abortion services by morally opposed medical students. In this case an end is envisaged, and a means adopted requiring that an agent must perform a particular action, where that action is precisely what she takes to be morally impermissible, in all circumstances. The issuing of the command (and of threats, inducements, etc.) can have no bearing on whether the agent considers the act to be impermissible or not. Any voluntary compliance by the agent can only be obtained by the agent’s acting contrary to her conscience. The willingness of the agent to violate her conscience thus seems to be an intended means to the goal of getting the agent to perform the desired action, since there is no other way to get the agent voluntarily to perform. It seems to me very plausible that this cannot possibly be morally permissible, as it involves willing that another do moral wrong.
To reiterate, this need not be the case where a positive obligation is at stake, for the issuing of a command creates a new reason for the agent—to comply with an authoritative command—and the authority can intend that agents follow the command for that reason. But no such new reasons are available where a perceived exceptionless and negative moral absolute is at stake. The word “perceived” is important, for this is the case even where the authority believes the agent to have a faulty conscience. Nonetheless, one is obliged to not act contrary to conscience in all situations, so to force someone to violate their conscience (whether it be correct or faulty) with respect to a negative absolute can never be right. Therefore, even though there is nothing morally wrong in the eating of some kind of meat, if some agents believe such consumption to be forbidden by a moral absolute, then it would be wrong for the state to command eating, even for some great good.
In sum, under extremely serious circumstances, the state can forbid what is otherwise taken to be obligatory. But the state should never command that an agent do something that an agent takes himself to be forbidden from doing by an exceptionless moral norm, and, it seems, the state should make a considerable effort to protect its citizens from demands by others that they violate their conscience in this way. One straightforward consequence of this is that serious pacifists, whether for moral or religious reasons, should not be made to fight in a war—although further questions remain about what else they might be made or allowed to do. Another straightforward consequence is that citizens opposed in principle to participating in abortion should not be compelled by the laws of the state to violate what they take to be exceptionless negative precepts. There can be no weak form of intrinsice malum in this domain.
Christopher O. Tollefsen is Professor of Philosophy at the University of South Carolina and a fellow of the Witherspoon Institute. His latest book, co-authored with Robert P. George, is Embryo: A Defense of Human Life (Doubleday, 2008). Tollefsen sits on the editorial board of Public Discourse.