Two

Paradoxes
of Private Conscience

The Question

THOUGHT SEEMS to thrive on crises to such an extent that when it can find none it either falls asleep or invents one. But surely most of the time it need only open its eyes; if there has ever been a substantial portion of human history without its crises, when was it? In any event, we hardly have to invent a crisis in the present day; one stares us in the face and it is indeed a crisis of thought. I refer of course to the conflict some men experience between the demands of public law and those of their private consciences, to wit, whether to obey the law demanding their participation in the Vietnam war or their own consciences, which may find that law morally intolerable. I should like to look into this question without raising the additional question whether I find that war a just one. That specific question is neither the premise nor conclusion to this discussion. And I should like to look at the question from the point of view not of those who approve of the war but only of those who disapprove of it since only there can our question be posed. The question could still be raised even if no one at all actually raised it.

And again, the question raised here is the moral resolution to a moral conflict between public law and private conscience; it is not the question whether a dissenter can in fact dodge the penalties of law, or whether the law has in fact the power to compel obedience. The answers to those questions would leave the moral issue untouched. And so we shall confine ourselves to one problem: what is the moral resolution to the possible conflict between one man’s conscience and the law?

This question is obviously not itself a purely legal question, for what is at issue is the moral authority of laws themselves of which I may disapprove; it would beg the question to invoke those laws once again in their own self-defense. Nor, I believe, is it purely a question of my own conscience; for it is also the question of the absolute right of my own conscience against the laws which is raised. The laws give me no such legal right. If I begin by assuming the absolute authority of my own conscience, then I have also instantly come to the end of the problem and need only reiterate my principle at the conclusion. Neither simple answer is sensitive to the problematic character of the problem.

The problem is, of course, an ancient and recurring one; one need only recall the differing answers of Socrates and Aristotle, Galileo and Bruno, Thoreau and Emerson. My own little discussion will try to trace out dialectically and not historically the conflicting claims of private conscience and public law when each is taken by itself, put these claims into a dialogue, and then see what the conclusion might be, if there can be a conclusion.

What Conscience Says

First, a few phenomenological remarks about what conscience is—“phenomenological” in the sense that these remarks only propose to discuss conscience as it looks to itself not as it might look to a psychoanalyst, sociologist, historian, biologist, or to the faithful of any religion. Whatever else it might be, it primarily is a sense of right and wrong, of scruple that such a man without conscience, if one could be found, would regard himself as unscrupulous. Let us for the moment ignore the various things that men have regarded as right and wrong; we shall return to this later. But now we are looking at conscience itself no matter what moral language it speaks. And the first curious thing about it is that its primary word is “NO.” Conscience is most itself when it forbids some action, to such an extent that a “good conscience” approving my decisions looks far more like a case of self-satisfaction, self-righteousness, and moral smugness, which themselves could only be disapproved by my own conscience. Socrates’ “daimon” only said “no.”

Second, the primary address of my conscience is to me. It forbids me from doing certain things. Hence it is universally regarded as the very personal center of a man, his “inwit,” as Middle English called it. It is the very person of the man and not some accidental or casual mental talent like a long memory or a lively imagination. It is so very much myself speaking to myself that radical conscientious self-criticism can tear the self apart. My violation of my own conscience then is hardly the same matter as making a mistake in arithmetic or miscalculating the practical effects of my decision. A violation of one’s own conscience is hardly a “mistake” at all; it is more like the threat of dissolution of one’s own deepest self.

And so, third, it is not difficult to understand why conscience always speaks with final authority for each. Sometimes it does not know whether to speak or not, the situation may be too obscure; or it may speak hypothetically, falteringly, and without blowing its certain note. But when it is most itself, it speaks with an unquestioned authority; do I indeed have anything higher than my own conscience to consult? But that could only be something my own conscience might reject. The authority with which conscience speaks when it does speak is so absolute that many men suppose it to be the voice of God, disobedience to which might carry with it eternal damnation.

The fourth note of conscience is that in its purity as a final authority for each man it is completely abstract. The conscience with which each man is born is nothing but a sense of right and wrong; it is not also already provided with the facts and the interpretation of facts necessary for its own exercise. If conscience then seems infallible, it is only because we are taking it in its abstract purity. So if the difference between right and wrong seems like a clear light, it is so only because it has not yet been turned on the ambiguities of the concrete domain where we must decide and act.

Now let us trace the course of the man of conscience in public affairs. Fortunately we do not have to invent, since Thoreau has already stated the matter with perfect clarity in his essay on civil disobedience, an essay which, supplemented by the works of Herbert Marcuse, has already taken on the authority of a higher Bible with the New Left, and in any event an authority far transcending that of the Constitution and the government together.

Thoreau puts the matter quite simply and plainly. He begins: “That government is best which governs least, or rather not at all.” It is nothing but an “expediency” by which people exercise their will. And if this suggests a democracy, we are quickly disillusioned: “A government of majority rule in all cases can not be based on justice . . . can there not be a government in which not majorities decide right and wrong but conscience?” He then asks: “Must the citizen ever resign his conscience to the legislator?” The answer comes immediately: “The only obligation which I have a right to assume is to do at any time what I think right. ... A wise man will not leave the right to the mercy of chance nor wish it to prevail through the power of the majority.” How does conscience react to laws when it regards them as unjust? “All men recognize the right of revolution: to refuse allegiance to, to resist the government when its tyranny or its inefficiency are great and unendurable. ... If injustice is such that it requires you to be the agent of injustice to another, then, I say, break the law.” “Breaking the law,” he specifies, means “using your whole influence,” which includes one’s life. He has nothing but scorn for those who merely use the ballot.

As for alternatives, he says: “Unjust laws exist; shall we be content to obey them, or shall we amend them and obey until we have succeeded, or shall we transgress at once?” But to obey them of course is to connive with evil; as for amendment, that, he says, “takes too much time and man’s life will soon be gone.” Besides, he adds, “I do not care to trace the course of my dollar. ... It is for no particular item in the tax bill that I refuse to pay it. I simply wish to refuse allegiance to the State, to withdraw and stand aloof from it effectually.” He ends: “Authority of government to be strictly pure must have the sanction and consent of the governed. It can have no right over my person and property but what I concede to it . . . the State must come to recognize the individual as a higher and independent power from which all its own power and authority are derived . . . and must treat him accordingly.” As for his fellow citizens—those who obey the law because it is the law—they serve the state, he says, not as men mainly but as machines, with their bodies; they are, he adds, of the “same worth as horses and dogs.” When he emerged from his night in jail, he had a new vision of his fellow townsmen; they now seemed to him to be of a “distinct race.”

No doubt not all of this is strictly relevant to our present question, but it does offer the dialectical unfolding of an intransigent conscience confronting the claims of law. And, as must be obvious, its traditional name is anarchy, the withdrawal of allegiance from government and law in favor of the final accreditation by each man of his own solitary and ultimate conscience. Can any man of conscience do otherwise?

What Laws Command

If this were the whole story, there would hardly be any problem at all. But it turns out to be only the voice of private conscience opposing its intimate and final claims to other claims, namely, those of the government and its laws. What might they say on their own behalf? If Thoreau says they derive their only authority from the approval of his private conscience, perhaps the most striking feature of the law is that it makes no mention whatsoever of Henry David Thoreau or any other private citizen as authenticating them. Is this an oversight?

If we now shift our point of view to that of government and its laws, what claims may they advance on their own behalf? But let us make a distinction between two sorts of law; there are, first of all, the ordinary, everyday enactments of an existing government. And, second, there is law of a different sort, those laws such as the Constitution of the United States which define the government itself and its legal powers. Everyday laws of the first sort somehow never mention Thoreau or any other private citizen as giving them their authority; they claim authority from the government that enacts them. They lose authority if improperly passed or if in conflict with superior law, but never simply by virtue of being in conflict with Thoreau’s conscience. Thoreau’s conscience is then, from their point of view, strictly irrelevant to their authority. They are therefore morally or legally compelling upon Thoreau, whether he likes them or not. And to repeat, our question does not concern the obvious fact that the laws and their legal enforcement can in fact compel private obedience; it is whether they had any right to do so. If they derive their authority from the government and not from Thoreau, Thoreau can hardly represent his own conscience as their sole authorization, even for himself. And on top of this, it is the government which has the moral obligation to enforce its own laws; it is commonly recognized that laws that are not even capable of being enforced are but scraps of paper and not proper laws at all. But since Thoreau in his private person hardly has the means, let alone the right, to enforce those particular laws of his choice, by what authority can his private conscience claim to be the legislator of the world? In fact, the laws might continue (in this hostile vein), what initially looked like a beautiful appeal to conscience, on analysis, turns out to be the moral tyranny of one conscience over others and over the very government that it set up to adjudicate such problems.

Pursuing this last point, the laws might add the following. One would have to be very naive indeed to suppose that all consciences agree. If each man’s conscience speaks with final and absolute authority, what it is speaking about is concrete decision and action. Now on conscience’s own terms, one must conscientiously inform oneself of the very facts of the case being decided. No doubt in many cases these are sufficiently clear and agreed upon to offer no substantial problems; but surely not in all. A recent example might be the case of the Pueblo; another, the possibility of unidentified assassins of President Kennedy. On top of the difficulties of ascertaining the facts, there is a deeper one of interpreting or reading those facts. The very same facts can be put together in diverse ways, suggesting diverse judgments about them. In the Vietnam war, surely most of the dispute arises from this very source; if the question is whether the United States is there upon invitation of South Vietnam to prevent its invasion by North Vietnam and the Viet Cong, or whether we are invaders in a territory to which Ho Chi Minh can lay rightful claim, who could pretend that this is a simple factual question? Is the dispute clearly a case of reading the facts very differently, such that, at this date, no new facts will clinch the decision? On top of these sources of difference in conscientious decision, there is the final existential truth that my conscience is rooted in and expressive of my own deepest commitments; but so is the other man’s. With the ambiguity of fact, the differences of reading those facts, and the final individuality of my concretely deciding conscience itself, it is hardly surprising that nothing is commoner than conflicts of conscience, not merely of one man with another, but of the same man with himself. Now if my conflicts with myself are strictly my own business, my conflicts with others are not; at this point I properly fall into the social and legal domain.

Now what can Thoreau do, armed only with the final authority of his own conscience, but declare one who disagrees with him lacking in conscience, or stupid or malicious, definitely a lower being; Thoreau saw them all as machines, dogs, and horses, a “different race.” And with this particular species of moral fanaticism, surely the very atmosphere in which there might be a conscientious resolution to differences of conscience disappears. On the other hand, the laws might continue to argue, why were we, the laws, set up in the first place if not precisely to give a moral solution to moral conflicts? It is not a case of conscience versus the law but merely private conscience versus public conscience. Private must cede to public conscience.

Which brings us back to that more basic law, that which founds and authorizes government in the first place—in our case, the Constitution. Thoreau declared the Constitution to be not even worth thinking about from his higher point of view; and indeed why should it be when he has his private conscience to replace it? But perhaps the Constitution has something to say for itself. Since it supplies a primary justification for all consequent laws and authority, it can hardly be nothing. And yet in the ultimate probe, the founding law of any government is in what looks like a circle of justification. It is itself the authority for the government it sets up to uphold it. And so it is the authority for the authority of the very government it set up to enforce its authority. Here we have the possibility of a crisis in authority which becomes decisive in revolution.

And so chasing down final authority, now on the side of law and government, we may begin to see its own Achilles’ heel. The highest law, the Constitution, was itself the act of men at the Constitutional Convention operating not under the Constitution but under other agreements which were to be superseded by the Constitution. What moral right did such men have to bind us in the future? And here it is of no avail to say that there are provisions in the Constitution for its own alteration; the procedures of alteration themselves must be constitutional or not; and so we are bound in the end by the Constitution to itself. Further, not all governments and founding laws have arisen this way; some just grew up through practice, tradition, and custom. Surely a large portion of what passes for legal decision even in a law-ridden country such as ours is and should be justified by custom, tradition, tacit understandings, and the rest. In a word, both final authority in law and government as well as a good deal of day-to-day rulings rest not upon law or government but custom, which, looked at from the point of view of law, is unformulizable, notoriously subject to differences of interpretation, and even changeable with the personalities of the administrators. If law and authority then can be said to be reasonable, that reasonability is itself ultimately founded on the irrational, historical, even the arbitrary.

If Thoreau then elevates his own conscience to an authority higher than government and law and thereby ironically turns into a private moral tyrant, the opposite claim of government, seeking to stabilize and adjudicate private disputes by an authority higher than individual consciences, finally passes from an initial rationality to a nonlegal, arbitrary, and irrational basis in historical acts, customs, tradition, and mere de facto practice.

Can There Be a Resolution?

I have tried to take two claims for ultimate moral authority seriously, and run both into the ground. Neither, all by itself, can sustain its claim to moral ultimacy. If some such thing is true, what is to be done about it? Perhaps admit a little bit of both? But so far as I can see, there is no theoretical resolution to the problem whatsoever; and if this sounds disastrous, I should finally like to point out why I think it is, on the contrary, of utmost value and importance.

Thoreau himself was a gentle man, and so his principle of private conscience might seem a good deal more acceptable than it would if we were to compare two recent cases where violent men could appeal to the same principle. Both Lee Harvey Oswald and Sirhan Sirhan also used their consciences as their final guide, one to assassinate President Kennedy for his part in the Cuban crisis, the other to assassinate Senator Kennedy for his recommendations of aid to Israel. The reply that Thoreau was gentle and the latter two pathological only points up the limits of private conscience as a political guide. All could justify their conduct by their private consciences, but on the other hand there is the case of Colonel von Stauffenberg, who, at least in my own judgment, very nobly tried with some associates to assassinate Hitler. All were cases of conscience at its extremity in conflict with officers of the government if not the government itself. In some cases we may approve, in others, disapprove, but all would be equally authorized by the general principle of private conscience and all equally condemned by government and law. Can these cases now be judged either by law or by private conscience? Their own private consciences approved them; the law condemns them all, yet surely there are decisive differences among them.

On the other side, law is in the same boat. Law and government must have some prima facie justification up to a point; but revolution raises precisely that point. Law itself can hardly be taken as its own final justification. And yet no government and no law could possibly authorize each private citizen to pick and choose which laws he will obey and when and under what circumstances. Nor can any government regard itself as anything but the legal government; those who refuse to recognize its moral authority are not citizens of that country but in effect potential enemies of the State. And yet who would not have to recognize the possibility of a radically corrupt state, corrupt not in its own terms but in terms drawn from other sources, perhaps even finally private conscience?

I believe these paradoxes to be theoretically insoluble, that is, that there can be no general principle or method that we could consult to prove in all extremities which side must be right, which wrong. And, far from being an intellectual disaster, on the contrary it throws into relief some existential points. First of all, if we could solve these paradoxes theoretically, once and for all, while we might take some thin pleasure in the fact, we would at the same stroke have removed all sense whatsoever from the historical struggles of men, from existence itself. Installing ourselves in the divine seat of judgment, either of private conscience or law, we would be entitled to pronounce on the past and future course of history and would in effect be viewing it as a senseless struggle of either stupid or immoral men with wise and moral men who always more or less are pictured in our own image. Having solved in this chapter the problem of existence, it could have nothing further to teach us. Second, if any such attempted vision eliminates the essential moral risk of existence, it also prepares the atmosphere for that pseudodiscussion where neither side listens but each only speaks out of private moral or public legal certitudes. Conscience slips into fanaticism and criminality, becoming an enemy of the State; government and law can become enemies of the very conscience that defines each man. To ask for general criteria and standards is to ask for not merely what is impossible but, I am convinced also, precisely that which would obfuscate the problem by declaring it solved for life.

Meanwhile there are some interesting examples of the ultimately insoluble character of the conflict. Socrates, condemned by the law, declared he would not harm the laws themselves and drank the hemlock. Aristotle, also condemned on similar laws, declared he would not permit Athens to sin twice against philosophy and retired to a country estate. Bruno, condemned for his metaphysics and astronomy, went to the stake for them; Galileo recanted, adding, however, that he was still right. Thoreau went to jail for a night, an act incomprehensible to Emerson, who bailed him out. And so the examples multiply. My inclination is not to pronounce judgment on these cases, but to point to the irreducible paradoxes of both law and private conscience as final guides to anything; to retain the paradox is to restore to our sense of existence its own paradoxicality and risk, where at last there can be nothing but listening and acting. And after decision, even here, there are no final guarantees that any choice ever was right or wrong. To sum up briefly: I have tried to present something like an exposition of the dialectic of listening. Listening, if it were nothing but a receptivity to diversity of opinions, could easily lead to paralysis of will. And, after having heard the possible options laid before me, I still have to decide; the options before me won’t decide of themselves. And further, any decision whatsoever involves two matters: the course of action itself and the principle by which I justify that choice or authorize it to and for myself. My own discussion has involved this last factor, that by which I ultimately justify my political choices.

At first, the ultimate judge and moral authority looks simple: it is my own conscience. Here we met Thoreau. And we continue to meet his descendants in all those who without more ado simply bring each choice before their private consciences and rule upon that choice with a frightening finality.

But, second, if conscience is conscientious enough, it will look into itself: what is it but an abstract sense of right and wrong, clear because empty of any particular information? And so a conscientious examination of conscience discloses that it has some unique disqualifications to rule on the world. As soon as it judges any particular matter of fact, it has descended into a domain where it loses its abstract majesty and looks like one more party to the quarrel, with incomplete information, faced with a diversity of equally plausible readings of what information it has, and finally resolving the whole thing by a pronouncement that inevitably reflects the personal situation and biases of the person whose conscience it is. It is but one conscience among many.

Having a sentiment of this from the beginning, men have taken the next step: set up a public conscience, law, whose sole justification is to settle, by an agreed upon ethical procedure, differences among private consciences. At this stage of the dialectic, private conscience, which remains conscientious and not a blind fist of power masquerading as moral, must cede to that moral authority, the law, which it set up in the first place to resolve these differences. At this stage of listening, the law has a moral authority transcending any private conscience.

A third stage emerges when the man of private conscience, having gone through the prior stages and not before, finds the very foundations of the law under which he has consented to live incompatible with his conscience. At this point, he has chosen to be outside the law, cannot reasonably expect its protection, and takes upon himself, in both his conscience and his own particularity as a finite historical man, the authorization and justification of his own social acts. In effect he has become his own lawgiver or, following Nietzsche, is beyond good and evil. If such a man rejects the principle of law as such, he is simply an anarchist and has reverted to stage one, each for himself. If he does not reject the principle of law but only a particular set of laws, wishing to replace them with others, then let him find his followers and let them collectively judge whether they now have something better or worse, or just different.

In all of this there is hardly any logical or purely rational solution. The last stage is the stage of revolution; there are no abstract principles by which to judge the worth of revolution. And as for particular principles, it is exactly they which are being revolved. At this point the revolutionary is strictly and eternally on his own; right and wrong in the domain of action do not have the meaning of logically correct or incorrect. They refer to values, and the sole authority values possess is their ability to engage our deepest will. They are neither correct nor incorrect, but affirmed or rejected. This dialectic of listening has sought only to indicate some stages of questioning that must be engaged in so that the deepest affirmation will indeed proceed from our existence and not some chance rage of the moment.