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.
Health
Care
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 it 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.
Marriage
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.
