Three

Myself as Moral Hero

IT IS NOT my intention to try Daniel Ellsberg in absentia. Still, what we can presume to be the facts of the case, admitted by Ellsberg in public, supply us with more than enough material for thought. In a moment we shall have left Ellsberg personally anyway; his case is but one in a long history of men who violate the laws of their country in the name of a “higher value” perceived by their private conscience.

The brief facts are well known and seem to be these: Mr. Ellsberg finally after much consideration convinced himself that his nation was fighting an unjust war. He then came to know of certain secret documents which, he felt, would inform the public of how we came to embark on that war. With that knowledge, the public would agree with him on the injustice of the war. His conscience would not permit him to keep silent on what he knew; the law ordered silence. He decided to break the law, reveal the contents of the Pentagon papers. The charge is guilty of breaking the law; his plea is “innocent.” Whether this is the case or not, let us stipulate it for discussion.

In all of this, much of the internal drama, perhaps its most interesting side, will have to be omitted. It unquestionably would be superb material for a novelist, a Conrad, Melville, or Dostoievsky. Our own purpose is different and more humble: by schematizing the problem and reflecting upon the prima facie dilemma, perhaps to learn a little more deeply some lessons valid even for less dramatic cases, in everyday life.

In order to reflect upon this matter, certain attendant questions must be put within brackets. And perhaps the first of them are the passions we feel for or against that war. The question of the justice of the war itself will return; but only after its pertinence has been established. Nor are our sympathies or antipathies for Mr. Ellsberg of the slightest pertinence. Those could only be justified after a scrutiny of his conduct. Nor are we particularly interested in the value or lack of value of the Pentagon papers themselves; for some they were a “revelation”; for others, trivialities, more or less known or at least suspected; for still others, disclosures of no relevance whatsoever to the issue of the war itself. All these reactions would be exceedingly difficult to assess, and for the question I would like to elicit, irrelevant. The truth is, no doubt, after their full disclosure very few indeed have had the time or inclination to read them through. Still, that is hardly Ellsberg’s fault.

In the first and perhaps last instance, it is hard indeed to see our stipulated Ellsberg as anything but guilty. In fact, the Ellsberg problem would not be a problem except by granting his prima facie guilt. If he were indeed innocent of breaking the law, precisely what was his conscience wrestling with? Has he not admitted that the papers were not merely classified, but known by him to be classified? Is anything more needed for a simple verdict of guilt? That the evidence was improperly gathered and the charges subsequently withdrawn hardly affects our problem at all. We need only rerun the trial in our imagination where the evidence would be collected legally, the law itself clear, and the prosecution’s case made without fault. And the same is true of the proprieties of his defense; if they were to be faulty, no matter; the philosophical problem of Ellsberg and his countless likenesses through history are not touched by the facts of the matter, nor the actual progress of the case.

Let us in addition imagine that the Pentagon papers contained disclosures of the highest interest: official lying or misrepresentation, in a word, matter implicating members of the government itself in crime, as Ellsberg himself must believe, facts which if known would persuade many citizens to condemn the policy of the government as well as those members responsible for it. In short, let us suppose for the argument that matters are pretty much as Ellsberg supposes; after all, that was the moral scene in which he acted and which suggests the problem.

The problem can, I think, be simply stated: what are we to think of a man who himself is tempted to violate a law in order to disclose what he thinks is the violation of a “higher law” by the government? This, it seems, was the dilemma facing Ellsberg, one in which he resolved to act as he did. His conscience compelled him; and in the long run, that could be his only defense. Our problem then is to scrutinize conscience as a defense for illegal action.

Theoretically, neither the laws themselves nor the government enforcing them can tolerate private conscience as a defense for violating laws. No law could be written that would simultaneously grant any citizen the right to exempt himself from its jurisdiction when his private conscience permitted. Clearly, such laws would be self-nullifying. The Chicago police were unimpressed, therefore, when a few years back some speeding Jehovah’s Witnesses exempted themselves from the traffic code on the grounds that the Old Testament contained no such provisions, which must therefore have proceeded from nothing but men whose rule they did not admit; were they to be slowed down in their zeal to attend a meeting with God by mere men?

That the laws do not allow their own violation, does not, of course, prevent judges from exercising mercy, the remission of a punishment legally earned. But mercy is not formalizable into law without the nullification of the law itself; if mercy is to be granted always and everywhere under specifiable conditions, then what mercy sought to accomplish should be written into the law itself. Mercy presupposes guilt and does not remove it; it merely suspends punishment.

If private conscience is no defense against the violation of law, simply because the law does not permit any defense against itself, there are yet other reasons that make the inviolability of law plausible. In the first instance, the law regards itself as public conscience, the just resolution publicly of a multitude of private consciences, all claiming different things. It cannot look upon itself therefore as a mere convenience, or mere power without moral justification. It is what the public at any time has resolved to be the moral code for itself. It is therefore public morals, not a sheer fact of power; and what opposes the moral claim of public conscience is not conscience itself; it is nothing but private conscience. But indeed to be a citizen is to recognize the authority of the public conscience over my own private conscience. To repeat, this authority is a moral authority, and has nothing to do with the public force that may be brought to bear to ensure enforcement. To look upon the clash of private conscience with law as that of conscience with public power is to seriously misunderstand the moral authority of law itself.

Next, the assumption that conscience in its private exercise is manifested only when it violates the law is to make the frightful implication that those who do not violate the law are acting without conscience. Hence “conscientious action” invariably carries the connotation that law-abiding citizens are acting without conscience, a conclusion dear to Henry Thoreau, but one that is the same as moral arrogance.

It is not hard to see that common courtesy and common respect for one’s fellow citizens must assume that all men act conscientiously, not merely those who conspicuously violate law. That all men in fact do not act conscientiously has nothing to do with the matter.

And finally, if conscience is to be a defense of illegal action, there is the consequence that all trials of the accused must become inquiries or inquisitions into their consciences. Did they or did they not act according to their consciences? Is the heat of their words sufficient proof? Their past record? Their lack of any other obvious motive? Does the accused himself know that he acted in accordance with his conscience? Was his conscience morbid or diseased? The prospect of a frightful and interminable psychoanalysis opens up, now with psychologists becoming decisive judges. And at this point, has not the legitimate claim of law been altogether forgotten?

In sum does the consideration of “conscience” really add anything that a court of law must take into consideration in determining guilt? It would of course be pertinent to any mercy the judge might choose to exercise. But then the plea of private conscience looks more and more like a plea for mercy on grounds of not being in one’s right mind. The thorny thing about conscience, however, is that it insists unto the end that it is the right mind of the guilty; which means the guilty is unrepentant, a fact in itself that would not encourage mercy. At this point one reaches the dialectic of fanaticism.

Purely considered, conscience is nothing but the form of moral judgment. By itself it can say nothing but that this is good or that bad; in fact, in its absolute purity it is not entitled to the “this” or “that,” which represent dubitable choices in existence, dependent on fallible data and interpretation. It therefore is nothing but the formal consciousness of good or bad. But the forms of good and bad have to be applied to this or that in order to dictate action. Now, unquestionably, good is good and bad is bad; and that is as absolute as possible and as empty of consequences as possible. Plato put the form of the Good into a timeless place of Pure Form or Being. Action, alas, occurs in another domain, that of existence or Becoming. And that’s the rub. Conscience, so long as it is pure and inviolable, can make no decisions; as soon as it does, it enters into the domain of the problematic, relative, and dubitable, in short, precisely that domain which is susceptible to discussion, questioning, probabilities, compromises. In a word, it falls into the domain of politics with its debates, provisional resolutions, all based upon the conviction that the differences that separate men separate them as differently moral, not simply moral versus immoral. Conscience then, when sufficiently conscientious, reverts back to the public domain of law.

Now how, indeed, can private conscience, that of Mr. Ellsberg or anyone else, grant itself the privilege of abridging, correcting, or reversing this entire political process, to be defended by nothing stronger than that it feels so? Do we not all have consciences; has not our collective resolution been incorporated into law? Would Mr. Ellsberg wish a system in which anyone could violate the laws of classification of documents at will? Has he not then, in effect, no matter what his personal humility may or may not be, claimed a divine right he would not grant to all, if any other? Does not anyone who violates the law on grounds of conscience claim some such divine right for himself? And is not this the essential fanaticism of private conscience? As a consequence we see essential absurdities in any legal defense of a criminal through the argument that he was “conscientious.”

And yet. The public conscience, expressed in its positive laws, and enforced by the administration behind those laws, is itself finite. It is a provisional codification of what men at a given time think just and expeditious. But if a single, private citizen is indeed finite in both his sense of justice as well as his reading of the factual scene where that conscience must operate, so too is a society. No one who has considered some of the more patently frightful governments, with their “laws,” could possibly decide otherwise. And for this purpose it makes no difference whatsoever whether the laws are imposed by a totalitarian dictatorship or by democratic approval; a demos can be as deluded and fanatic as a dictator. In any event they are both finite, determinate, and no matter how well-or ill-intentioned, merely one sense of an infinite ideal. In their own terms, no doubt both the Hitlerian and the Stalinist governments were legal, and possessed the full authority implicit in legality. If therefore one judges these systems profoundly bad, one is not doing it through an analysis of their own internal values and rules. Some other ideal is brought to bear from outside such systems. From where then except that private conscience which distinguishes itself from legal authority? At which point, private conscience appears as a source of a fresh morality, not incorporated within the existing system, and perhaps higher. But if it is higher, it is not higher in legal authority. In what terms then? Obviously, in that pure ideal, that pure form of the Good, which conscience, or the moral sense, envisages, and in the light of which it criticizes existing law or practice. It envisages something better than what is. That pure form of the Good is most frequently called God, but then the name hardly matters; the atheist anarchists of the Spanish Civil War called it Justice, or something else.

There is, then, and always will be the occasion for such a dispute between my own conscience and that of the public on some specific law, though not law as such. And what a feeble thing my own conscience is when confronted with practical action, with its indefinite consequences, innumerable considerations, and with the fallible information upon which it must decide on the one hand, and on the other the massive authority of law and government, that very government we set up in the first place precisely to relieve private conscience of such decisions, to ascertain facts, consequences of decisions, to read the whole public scene in which decisions have force and consequences.

If we have ended in an unsatisfactory dilemma, that which gives right to both sides of an implacable quarrel, at least a few things have been settled: the law can and should do nothing but punish its violators. Further, the conscientious violator himself, insofar as he is a citizen, has already implicitly consented to his own punishment. The plea of innocence then is absurd. Innocent of what?

And yet, who could deny that some such violators are indeed benefactors of all? Count von Stauffenberg organized an unsuccessful attempt to assassinate Hitler. The list of such heroes could be extended, but then something becomes questionable: are all conscientious attempts to assassinate heads of government to be approved? There was Lee Harvey Oswald, who assassinated President Kennedy on grounds of a political, i.e., conscientious opposition to his Cuban affair. There was Sirhan Sirhan, who also consulted his conscience to determine that Robert Kennedy must die for his sympathy with Israel. Now then, how are we to decide, among all the cases in history of the conflicts between private and public conscience, which are really right and which wrong?

The question “how are we to decide who is really right—the law or private conscience?” raises two final points: (1) it asks for a “how,” namely a rule for deciding; and (2) it has in mind what is “really right.” With regard to the perpetual search for rules, as sensible as that might seem to computer programmers, it is obvious on the face of it that not everything is determinable by rule; and one of the most conspicuous of these cases is precisely when the rule must be opposed. If, therefore, private conscience decides of itself to violate the rule of law, there can be no additional rule it can consult. It is strictly beyond rule, and it is that which it decides; but that decision is not and cannot itself be brought under further rules. Such situations were deeply studied by Kierkegaard in Fear and Trembling and elsewhere. To locate oneself beyond justification by rule, which is where private conscience is located in its opposition to law, is ίο be where singular human existence is at those limits Karl Jaspers calls boundary situations (Grenzsituationen). At these limits I must take personal responsibility for my violation of the rule. Taking responsibility means the assumption of my guilt, and not an attempt to obfuscate the matter so that I now look innocent. My only plea could be for mercy. And on what grounds could mercy be extended; again, no rule for that either, but the residual perception that existing laws are finite, though they must claim unconditional obedience.

With regard to the second point above, namely that violation of the law is permitted when the violator is really right, the truth is that the notion of really being right is wholly vacuous in the present context. Between the individual and his society all that is present is a clash of views of the right, not that really Right itself which Plato assigned to the pure realm of Form. And since the dispute is precisely over who is really right, or who has the most unclouded view of it, that absolute Right itself hovering over the dispute is not a party to it. On the face of it, law itself in its capacity of being law is the moral determiner of factual right; the violator is a criminal and must suffer the consequences. That he may have felt himself to be really right may be interesting for his psychology, but it hardly affects the fact of the crime, or the punishment it deserves.

All of which leaves room for approval of those whom the law must regard as criminal but whom posterity may thank for whatever effect the crime had in improving some state of affairs. It could never thank anyone for weakening law as such; but it might for other consequences. Formally, there can be no rule for deciding in general between legal criminals we would praise and those we curse. Both may have “consulted their consciences.” Both must be declared guilty; and suffer their punishment. And yet some we must praise as heroes.

If this ultimate paradox seems unsatisfactory, on the other hand, to sustain it is to sustain also the essential meaning and freshness of human existence. It is some such thing that life is about, which gives a creative value to both history and individual human life they would not have if either rule or absence of rule were alone to exist. Life is not itself exhaustively subsumable under rule or method although rule is an essential component. In a word, is not human existence, when authentic, always having to decide precisely such matters? And if so, then it would be no service to imagine the whole affair either solely determinable by rule or, on the other hand, without rule at all, or to look for the final rule to settle when either should prevail.