Kevin Doyle, a Catholic lawyer and death penalty opponent, has published a review in America magazine of my new book Conscience and Its Enemies: Confronting the Dogmas of Liberal Secularism. I’m grateful for the kind things Mr. Doyle said about me and my work. Still, there is an error at the heart of the review, and it goes to a central matter: the meaning of conscience. So I want to address that error. Before that, I’ll comment on some less significant shortcomings of Doyle’s review.
The Death Penalty
First, Doyle says that “the death penalty wins mention in [George’s] case against Mario Cuomo but draws no condemnation.” Let me say plainly what I have said before: I believe that all direct killing of human beings—that is, deliberately bringing about death, whether one’s own or another’s, as the precise object of one’s act—is morally wrong. So I am opposed to the death penalty.
I did not address the substantive moral issue of capital punishment in this book because support for the death penalty scarcely qualifies as a dogma of liberal secularism. Most liberal secularists oppose the death penalty. I think they are right about that, albeit right for the wrong reason. The subject came up in my chapter on Mario Cuomo and other politicians who claim to be “personally opposed” to abortion yet “pro-choice,” because Cuomo had advanced an absurd argument trying to square his opposition to the death penalty with his support for the legalized and taxpayer financed killing of unborn babies. Here’s what I wrote:
Cuomo claims that when he speaks of the death penalty, he never suggests that he considers it a “moral issue.” Then, in the very same paragraph, he condemns the death penalty in the most explicitly, indeed flamboyantly, moralistic terms: “I am against the death penalty because I think it is bad and unfair. It is debasing. It is degenerate. It kills innocent people.” He does not pause to consider that these are precisely the claims pro-life people make against the policy of legal abortion and its public funding—a policy that Cuomo defends. . .
Subsidiarity and Solidarity
Second, Doyle says that in my analysis “subsidiarity eclipses the counterbalancing imperative of solidarity.” This claim rests on the mistake—a common one, to be sure—of supposing that subsidiarity and solidarity “counterbalance” each other. To suppose so is to misunderstand the principle of subsidiarity (which, among other things, restrains government action in some areas and authorizes or even requires it in others) as well as its relationship to solidarity.
Subsidiarity and solidarity are distinct principles, and respect for both is required as a matter of justice. But they do not pull in opposite directions. They do not need to be “balanced.” Nor, strictly speaking, can their normative demands be in conflict. They do not require tradeoffs. Both are to be applied and respected fully—all of the time. To suppose otherwise is to start heading down the wrong path from one’s first step.
Third, Doyle says that, for me, “health care as a human right becomes merely something of which it is ‘certainly not unreasonable to speak.’” Doyle’s “merely” is extremely misleading, as the context of the quoted line from my book makes clear:
Human rights exist (or obtain) if principles of practical reason direct us to act or abstain from acting in certain ways out of respect for the well-being and the dignity of persons whose legitimate interests may be affected by what we do. I certainly believe that there are such principles. They cannot be overridden by considerations of utility. At a very general level, they direct us, in Immanuel Kant’s phrase, to treat human beings always as ends and never as means only. When we begin to specify this general norm, we identify important negative duties, such as the duty to refrain from enslaving people. Although we need not put the matter in terms of “rights,” it is perfectly reasonable, and I believe helpful, to speak of a right against being enslaved, and to speak of slavery as a violation of human rights. It is a right that we have not by virtue of being members of a certain race, sex, class, or ethnic group but simply by virtue of our humanity. In that sense, it is a human right. But there are, in addition to negative duties and their corresponding rights, certain positive duties. And these, too, can be articulated and discussed in the language of rights, though here we must be clear about by whom and how a given right is to be honored.
Sometimes it is said, for example, that education or health care is a human right. It is certainly not unreasonable to speak this way; but much more needs to be said if it is to be a meaningful statement. Who is supposed to provide education or health care to whom? Why should those persons or institutions be the providers? What place should the provision of education or health care occupy on the list of social and political priorities? Is it better for education and health care to be provided by governments under socialized systems or by private providers in markets? These questions go beyond the application of moral principles. They require prudential judgment in light of the contingent circumstances people face in a given society at a given point in time. Often, there is not a single, uniquely correct answer. The answer to each question can lead to further questions. The problems can be extremely complex, far more complex than the issue of slavery, where once a right has been identified, its universality and the basic terms of its application are fairly clear. Everybody has a moral right not to be enslaved, and everybody an obligation as a matter of strict justice to refrain from enslaving others; governments have a moral obligation to respect and protect that right and, correspondingly, to enforce the obligation.
The context reveals that Doyle’s characterization of my view, served by his use of the term “merely,” completely fails to do justice to my point—an analytical point about a key difference between claims of negative and positive rights. It is a point that Doyle ignores. I doubt that he or anyone else would contest my claim that for assertions of positive rights to be meaningful, the types of questions I mentioned must be addressed.
Fourth, Doyle’s treatment of my arguments about what marriage is—and isn’t—is odd. He doesn’t offer any criticism of my arguments or even address them in any substantive respect. Instead, he dismisses them—and dismisses them in a curious way, especially (as we shall see) for someone who dedicates himself to fighting against the death penalty.
Doyle allows that I’ve put the advocates of redefining marriage to include same-sex partners in a tough spot by challenging them to, among other things, identify a basis of principle consistent with their rejection of the conjugal conception of marriage for understanding marriage as inherently involving two persons, as opposed to three or more in polyamorous sexual partnerships. And he notes that those advocates have “side-stepped” the problem “until now.” But he doesn’t suggest how they might actually respond to my challenge. Nor does he offer any criticism of my philosophical defense of the conjugal conception of marriage or my criticism of the revisionist alternative conception of marriage as sexual-romantic companionship or domestic partnership.
Instead, he says this:
For many Americans, George’s marital metaphysic will stand up poorly next to the reality—just down the block or a few family relations away—of a committed gay couple with children. So take or leave George’s argument that a same-sex marriage cannot be a genuine marriage.
This simply will not do. My actual arguments either are successful or they are not. Doyle vaguely suggests that they are not, but he does so without taking a clear position, much less defending it. That this is unsatisfactory in a review would be clear enough to Doyle if we switched the topic from marriage to the death penalty. Doyle has devoted his career to making arguments—serious and well-informed arguments—against capital punishment. But whatever their ultimate merit, it would simply not do for a critic to say something like this:
For many Americans, Doyle’s metaphysic of the inalienable dignity of the life even of a wanton murderer will stand up poorly next to the reality—for some right in the neighborhood, and sometimes even in the family—of young men who have been gunned down in the streets and girls who have been brutally raped and then killed by their assailants. Most Americans fully accept the death penalty for such crimes, and there are countless family members for whom the execution of the perpetrator is essential to emotional well-being and a sense of justice and closure. So take or leave Doyle’s argument that the death penalty is morally wrong.
Conscience and Its Protections
Fifth, let’s turn to that big error I mentioned at the beginning. Doyle claims that while I “plead powerfully for the claims of conscience” of those with whose judgments in conscience I agree, I am “non-committal” or “send signals in different directions” when it comes to consciences that I believe are formed incorrectly. But that is the reverse of the truth—manifestly so. In fact, I do not think I could possibly have made clearer my view of the importance of respecting and protecting the rights of conscience even of those with whose judgments of duty I disagree.
Let’s take an example. I am, to say the least, not especially sympathetic to atheism. Still, here is what I say about the conscience rights of atheists in Conscience and Its Enemies:
Respect for the good of religion requires that civil authority respect (and, in appropriate ways, even nurture) conditions or circumstances in which people can engage in the sincere religious quest and live lives of authenticity reflecting their best judgments as to the truth of spiritual matters. To compel an atheist to perform acts that are premised on theistic beliefs that he cannot, in good conscience, share, is to deny him the fundamental bit of the good of religion that is his, namely, living with honesty and integrity in line with his best judgments about ultimate reality. Coercing him to perform religious acts does him no good, since faith really must be free, and dishonors his dignity as a free and rational person. The violation of liberty is worse than futile.
I make clear here and elsewhere that I utterly reject the “error has no rights” view in the name of which radical traditionalist (“rad trad”) Catholics reject the robust conception of religious freedom set forth by the fathers of the Second Vatican Council in the great declaration Dignitatis Humanae. In fact, I make my view on this point so clear in so many places, that I was initially puzzled at how Doyle could suppose that I was “non-committal” on the rights of people with erroneously formed consciences.
Reading on, though, the basis of Doyle’s error came into focus for me. He must have missed, or in any event he clearly missed the point of, Chapter Ten, entitled “Two Concepts of Liberty . . . and Conscience.” Evidently failing to notice my distinction—drawn from Newman—between the traditional conception of conscience as a “stern monitor” imposing duties we must fulfill whether they are in line with our preferences and desires or not, and the modern autonomy-based liberal idea of conscience as “self-will” grounding a right to do as one pleases, whatever one pleases, so long as there is no direct or palpable harm to others, Doyle supposes that I should be on the side of the liberals concerning the legal regulation of allegedly self-regarding immoralities.
In that chapter—which contrasts the conceptions of liberty and conscience held by John Stuart Mill with those held by John Henry Newman—I go to great lengths to explain the competing views and say why I think it is a mistake to conceive conscience as licensing conduct rather than imposing obligations:
Conscience, as Newman understood it, is the very opposite of “autonomy” in the modern liberal sense. It is not a writer of permission slips. It is not in the business of licensing us to do as we please or conferring on us (in the words of the U.S. Supreme Court) “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Rather, conscience is one’s last best judgment specifying the bearing of moral principles one grasps, yet in no way makes up for oneself, on concrete proposals for action. Conscience identifies one’s duties under the moral law. It speaks of what one must do and what one must not do. Understood in this way, conscience is indeed what Newman said it is: a stern monitor.
Contrast this understanding of conscience with what Newman condemns as its counterfeit. Conscience as “self-will” is a matter of feeling or emotion, not reason. It is concerned not so much with the identification of what one has a duty to do or not do, one’s feelings and desires to the contrary notwithstanding, but rather with sorting out one’s feelings. Conscience as self-will identifies permissions, not obligations. It licenses behavior by establishing that one doesn’t feel bad about doing it—or at least one doesn’t feel so bad about doing it that one prefers the alternative of not doing it.
I’m with Newman. His key distinction is between conscience, authentically understood, and self-will—conscience as the permissions department. His core insight is that conscience has rights because it has duties. The right to follow one’s conscience, and the obligation to respect conscience—especially in matters of faith, where the right of conscience takes the form of religious liberty of individuals and communities of faith—obtain not because people as autonomous agents should be able to do as they please; they obtain, and are stringent and sometimes overriding, because people have duties and the obligation to fulfill them. The duty to follow conscience is a duty to do things or refrain from doing things not because one wants to follow one’s duty but even if one strongly does not want to follow it. The right of conscience is a right to do what one judges oneself to be under an obligation to do, whether one welcomes the obligation or must overcome strong aversion in order to fulfill it. If there is a form of words that sums up the antithesis of Newman’s view of conscience as a stern monitor, it is the imbecilic slogan that will forever stand as a verbal monument to the so-called me generation: “If it feels good, do it.”
Now, Doyle has every right to disagree with me about the superiority of Newman’s conception of conscience as duty-imposing to what, following Newman, I argue is its counterfeit: “conscience” as “self-will,” licensing the subject to do as he or she pleases. But he should be clear that what I oppose is conscience-as-license—and not respect for the good-faith conclusions about duty of people whose moral or theological judgments and beliefs I reject.
Doyle seems to have missed the critical distinction between these two conceptions of conscience altogether. But it is a distinction that is at the heart of Conscience and Its Enemies. Had he noticed it, he would not have supposed I was “non-committal” on the need to respect the consciences of those with whom I disagree. He would have seen that I am committed to an understanding of conscience, and the rights of conscience, that is very different from the one he himself, I gather, holds.