Conscience And Justice

by Stefan Sandor

“If there were no eternal consciousness in man, if at bottom of everything there were only a wild ferment, a power that twisting in dark passions produced everything great or inconsequential; if an unfathomable, insatiable emptiness lay hid beneath everything, what then would life be but despair?”
– Soren Kierkegaard –

In light of the constant terrorization of the conscience in our times I have decide to tackle the issue of conscience and its importance in jurisprudence. The issues is as old as society since society is build on certain salutary truths it seeks to safeguard those beliefs by tyrannizing thought. Therefore, the problem of conscience is coeval with society. It was just as pressing to the ancients as it is in our day and age.

Some see conscience as something interposed between the individual and the state, as something to be mitigated. Conscience is also viewed as something to be protected from the state, e.g. a law guaranteeing freedom of religion to protect freedom of conscience. However, a more pressing issue is the reciprocal relationship between individual conscience and human convention/law. Is there a mutual dependence between law and individual conscience? I believe the answer is resoundingly “yes!” Individual conscience is paramount to the individual’s responsibility to determine moral norms essential to the process of law (i.e. jurisprudence) in the safeguard of liberties and the protection against the enactment and enforcement of unjust laws.

In this paper we will deal with the mutual dependence between law and individual conscience. In the first section the problem will be articulated and elaborated using Sophocles play Antigone. The second section will be a discussion of the different interpretation of the concept of conscience. The third section will deal with jurisprudence and justice. The final section will deal with the mutual relationship between conscience and jurisprudence.

The Problem As Articulated by Sophocles’ Play Antigone.

The conflict between the individual and the state was as pressing for the Greek audience as it is for modern ones. In Sophocles’ play Antigone the protagonist Antigone is a threat to the status quo she invokes divine law as defense of her action but implicit in her position is faith in the discerning power of the individual conscience. The play starts off with the burial of Eteocles and Polyneices, two brothers leading opposite sides during Thebes’ civil war, both have been killed in battle. Creon the new ruler of Thebes, has declared that Eteocles will be honored and offered a proper burial while Polyneices will not have a proper burial. The rebel brother will not be sanctified by holy rites but will lay unburied to become carrion for scavengers. Antigone, one of the sister of the dead brothers, defies the king’s edict and buries her brother Polyneices. Even at the pleading of her sister Ismene, she is unswayed. Antigone then makes an impassioned argument, declaring Creon’s edict to be against the laws of the gods themselves. Enraged by her refusal to submit to his authority Creon declares Antigone will be sealed in a tomb to die of starvation. Although the story has an even more tragic end it is Antigone’s refusal of the king’s edict in light of her internal conviction that exemplifies the tension between individual conscience and human laws.

The tragic play brings to the forefront fundamental human problems and challenges the reader to think of the various conflicting morals that are present. On the one hand, loyalty to the beliefs of one’s society are paramount because society rests on a shared trust in those beliefs. Creon statement, “As God is my witness… no man who is his country’s enemy shall call me a friend,” indicates the principle that no traitor of the state shall be honored. A principle prevalent in ancient cultures and many societies in our time. Accompanying this principle was the obligation of loyalty to the city-state and a willingness to shed blood on its behalf. Within this atmosphere of loyalty, freedom was only enjoyed with the assumption that when the time came every able bodied man would be willing to fight for his people. Creon simply wants to enforce these values of loyalty. On the other hand, the play suggests that individual conscience demands its own right of being heard. It is inward looking, involving introspection, awareness of one’s behaviour, and self-assessment. It is a motivation to act that comes from within one’s self as opposed to external impositions. If conscience is the faculty by which one apprehends or grasps all the objective value judgments about all things then it would seem that individual conscience must be respected and protected. But as Sophocles play seems to suggest, individual conscience at time comes into conflict with the laws of a society. For example Antigone must decide whether or not she must act based on what she believes to be right or submit to the authority of her king. Throughout the play, Sophocles brings up the issue in question, i.e. the value of an individual’s conscience above society’s laws. Sophocles forces us to see through the thin veneer that is civilization and  to see the predicament of the human situation.

Sophocles makes it explicit that the conflict between individual conscience and society is real. The question that follows is whether the conflict between individual conscience and society can –and should– be resolved? The choice is clear to try: (a)to try as far as possible to elude the conflict between individual conscience and society by maintaining as great a distance as possible between them; or(b) to try as far as possible to resolve the conflict between individual conscience and society by working for a reconciliation between them.

Different Conceptions of Conscience

I. The Religious Conception

The religious perspective sees conscience as the faculty that brings us some form of moral knowledge or moral beliefs in an absolute sense, e.g. knowledge of divine laws. This conception of conscience does not necessarily coincide with the function of the other epistemic faculties, e.g. as reason, or senses. Conscience in this sense is understood as inward looking, which presupposes that the knowledge to which it gives us access is already within us. The religious perspective argues that this form of knowledge is acquired through some other process not involving conscience, e.g. the moral contents we discover within us are acquired through divine intervention, through the laws of nature which God infuses in our heart. One such example of God’s laws of nature infused in our hearts is founded in 2 Romans 14-15, “For when the Gentiles, which have not the law, do by nature the things contained in the law, having not the law, are a law unto themselves: Which shew the work of the law written in their hearts, their conscience also bearing witness, and their thoughts the mean while accusing or else excusing one another.” On this conception the laws of God are infused in man’s heart. On similar accounts of conscience, conscience does give us direct access to moral knowledge, e.g. as an intuition about what is good and what is bad. Perhaps the most articulate position of the religious conception of conscience is that espoused by Saint Thomas Aquinas.

Saint Thomas Aquinas conceives of conscience as the act of applying our knowledge of good and evil to what we do or might do. In order to know what is a good action or a bad one, one needs to understand how things are naturally ordered, primarily what human nature is and what things it needs and deserves. This order, which dictates what is good or evil behavior, is called Natural Law. In De Veritate, St. Thomas makes a distinction between two levels, or faculties, of conscience, sunaisthesis and conscientia. Sunaisthesis is the innate habit of the practical intellect whereby man grasps or is aware of the precepts of the natural law that guide human choice and action. The very first principle of practical reasoning is “good is to be pursued and acted upon, and evil is to be avoided.” To St. Thomas this principle is the cornerstone of all practical reasoning. Sunaisthesis is a name given to our capacity to know principles of natural law. The second part of conscience, conscientia, is the act whereby we witness to truth and apply knowledge of the first principles to particular circumstances, e.g. we analyze past choices, judge present choices, and deliberate on future choices (ST part I, question 79, articles 12-13).

Saint Thomas conceives of conscience as a habit that is to a great extent natural in the sense that conscience, and the awareness of the laws that it contains, are infused in man’s nature, innate, and are awakened to use as one emerges from infancy. St. Thomas speaks of the precepts of natural law as analogous to the precepts of logic, which govern and are presupposed in all rational thinking. One does not have to learn the principle of contradiction, such a principle is presupposed in all thinking. Without knowing these precepts, one can learn nothing, nor could one think rationally or communicate. Ad idem, with man’s grasp or apprehension of right and wrong. According to St. Thomas all or most societies share basic universal norms, e.g. murder, theft, and adultery are everywhere punishable crimes. In most societies the dead bodies must be treated with respect, heroes must be honored, children ought to honor and respect their parents, and the like. However, Thomas does concede that there will be disagreement among societies concerning the specific application of or derivations from the basic normative precepts (ST I-II, Q94, art. 4). Adultery will mean something different in a polygamous society from what it means in a monogamous society. Moreover, since men are morally fallible and do not retain clearly or follow strictly the first principles grasped by sunaisthesis, they regularly violate what they know to be right or wrong (ST I, Q 79, art. 13; I-II, Q 94, art.6). Men who violate the natural law, due in part to their uncontrolled passions and deep perversity, suffer as punishment the piercing pangs of a guilty conscience. Thus, for Thomas conscience also works as a punishment or sanction for breaking the natural law (ST I-II, Q 91, art. 6). More on this in the Jurisprudence section.

II. The Secular Conception of Conscience

The advent of evolutionary thought in the late nineteenth and early twentieth centuries brought with it a new set of questions about conscience. If human beings evolved from the “lower” animals (e.g. apes) then those characteristics, which seem to distinguish human beings from other animals, must also have evolved from more primitive characteristics. In The Descent of Man, Charles Darwin argued that the development of conscience in human beings was inevitable once they developed the powers of reflection and memory. The altruistic and cooperative instincts, typical of social animals, are less strong than the more basic appetitive instincts, e.g. fear, hunger, or lust. Nevertheless, these social instincts make more persistent and enduring claims on the animal’s mind. Appetites, by contrast, no longer seem important once they have been satisfied. An animal, which gratifies its appetite at the expense of its neighboring animals, once able to reflect back on what it has done, will experience remorse. When reason and language enable the animal to remember these experiences, the social instincts obtain the special authority of conscience, i.e. we come to believe that we ought to obey them.

Other thinkers, most especially Friedrich Nietzsche and Sigmund Freud, saw the acquisition of conscience as a decisive break with our animal past. Both believed that conscience resulted from a process of “internalization.” When our natural aggressive instincts are suppressed for the sake of social life, we find an outlet for them by turning them against ourselves, inflicting pain in our selves in the form of guilt. The process of internalization is caused by society, more specifically our parents that condition us to suppress aggression, and train us in mastering our basic instincts. Self-mastery is simply exercised for the sake of social requirements. Thus, conscience is nothing more than a kind of internally authoritative voice of one’s society and parents.

The secular accounts of the origin of conscience was due in part to the prevalent view that reality exists only within human knowledge, and that, as the object of knowledge, reality is relative to the knowing subject. Morality is not something absolute but merely a human convention or the outcome of evolutionary process. But, if conscience is only an evolutionary process of internalization of our basic instincts one is led to conclude that there is nothing objective about it, a binding order prior to, and independent of the human will. Morality is simply subjective and a product of the human will, i.e. human convention.
But as Sophocles’s play Antigone illustrates, when human laws do not conform to the natural law, justice loses its meaning, man presumes to be God, and tyranny in the form of “might is right” or “raw judicial power” violates the most natural rights of all, such as Antigone’s brother’s right to a burial. It is easy to see how these secular accounts on the origins of morality led to the many atrocities experienced just in the past century.

Jurisprudence and Justice

Jurisprudence is mostly understood as the philosophy of law with the aim in contributing to the common good by achieving justice in society. The first requirement in the process of jurisprudence is to define what is justice. However, one immediately encounter the epistemological question, can one know what justice is? If the answer is “yes,” it raises the possibility that the enacted law will be subject to a knowable standard of justice. This is the epistemological basis of every natural law theory of jurisprudence. If, on the other hand, one cannot know what justice is, then the enacted law cannot be criticized as unjust. A law enacted by prescribed procedures will be valid regardless of its content. This is the epistemological basis of every theory of legal positivism.

Legal positivism cannot allow for the absolute (i.e. a reality that exists independently of human knowledge), the thing in itself is beyond human experience, it is inaccessible to human knowledge and therefore unknowable. This is Creon’s position in Sophocles’ play Antigone. He has decreed a law that no one should bury Polynices, an enemy of the state. Creon position is a philosophical relativism approach to reality in regards to knowledge of morality and justice. It stems from Creon’s core belief that only relative values are accessible to human knowledge and human will, and if this is recognized, then it is justifiable to enforce a social order against reluctant individuals only if this order is in harmony with the greatest possible number of equal individuals, that is to say, with the will of the majority. But, it may be the opinion of the minority, and not the opinion of the majority, that is correct. St. Thomas insight comes in handy at this point.

Thomas rejected the thrasymachus approach to government and cautioned that the law should not try to prescribe every virtue nor forbid every vice. The purpose of the law, according to St. Thomas, is to promote the “common good” and that law should “led men to virtue, not suddenly but gradually.” Otherwise, the law would be unenforceable and the law itself would be “despised” and “greater evils” would result. This is essential in order to understand Creon’s precarious position, where the legislator decides what the basic norm is and whether any particular law is in accord with it. Any content whatsoever can be legal, i.e. there is no human behavior which could not function as the content of a legal norm. The only requirement for law to be valid and binding is that it has been constituted in a particular fashion. Once a law is enacted and in force, it is obligatory. There is no knowable higher law of nature, the ultimate criterion is the enforced will of the legislator. The positive law cannot be criticized as unjust. All human laws are characterized, in greater or lesser degree, by the denial of the capacity of human reason to know what is right or wrong. Thus Creon is only concerned with what the law is, not with what it ought to be. This position led Creon to his demise and the damnation of his household.

A system of jurisprudence, in order to serve a role in nation-building, ought to provide an objective guide for determining the content of general terms in the constitution of laws. And it ought to provide a reasoned basis in objective justice in order to critically evaluate the enactments enforcing those general terms. The interpretation of constitutional guarantees will promote the common good and safeguard liberties only if the interpreters recognize an intellectual knowable, objective content to the terms in which constitutional guarantees are placed. Identifying such objective contents is not a religious enterprise, rather an explication of principles rooted in natural law.

The Importance of Conscience to Jurisprudence

Natural law has several functions in jurisprudence, the function of providing a guide for the enactment of laws to promote the common good, and the role of providing a basis for criticism of the enacted laws as unjust. In the first instance, as St. Thomas emphasized, law should not attempt to prohibit every vice or enforce every virtue, rather it serves as a guide to the way things ought to work according to reason and nature. Natural law principles of morality and social justice ought to inform public discussion of issues such as family, the economy, the prevention of racial discrimination. In its second role it can be protective of the rights of the people. Differently put, it enables us to draw the line and to criticize an act of the state as unjust and legally non-binding. Without the natural law, the people have no basis other than the pragmatic and utilitarian approach to respond to unjust laws. Antigone’s recourse to natural law in her famous discourse illustrates this point succinctly. It was her ability to discern fundamental principles found in nature and their relationship to human law that allowed her to contend against Creon’s unjust law.

    Conscience bears witness to the law written on the heart of men; one knows natural law through his conscience, which holds him accountable to the law. As mentioned earlier St. Thomas differentiated between conscience that grasps the precepts of natural law, i.e. sunaithesis, and conscience as applied through practical reason, conscientia. Witnessing, investigating, binding, accusing and excusing (testificare, instigare vel ligare, accusare vel excusare) were, according to St. Thomas, attributes of the conscientia, the conscience in action. Conscientia was merely the function of the sunaisthesis. Conscience was not a capability or power, rather, it was a function, the application of knowledge. As the application of knowledge, conscientia, had the function of practical reason, applying knowledge to individual cases. Concerning human law sunaisthesis grasps the truths of natural law, which provide a guide for the enactment of laws to promote the common good which allow for human flourishing. Conscientia, applies knowledge of the truths grasped by sunaisthesis to individual cases where judgment must be imparted according to human law. The second might be said to deal mostly with the safeguard of liberties prescribed by natural law. Thus, conscience is a sovereign in it own right, in its ability to challenge the very validity of an unjust law, and to protect against the enactment and enforcement of such laws. Furthermore, it allows for the perpetuation of natural rights and liberties, such as freedom of religion, speech, and freedom of conscience. This protective function (conscience) is also constructive in that the recognition that there is a protective line beyond which the state may not go may serve to encourage the enactment of laws that are truly just.

Conscience is, in its essence, inalterable and compelling. Because of its inalterable and compelling nature, conscience is a rare instance where there is a recognition of individual responsibility to define principles and to adhere to them. Conscience, as many of the founding fathers articulated, is one of the few hopes and few protections against the possibility of governmental tyranny. It is important not only for the substantive principles that it yields, but also for the process that it represents. It is one of the few indictments against the use of public opinion and their collective judgments as a justification for the failure to make individual moral inquiry. Thomas Jefferson wrote “We should… moralize for ourselves, from the oracle of conscience,”(Adams 367, 68). John Adams, referred to the “Liberty of conscience…” as “the right of free inquiry and private judgment” (607). He wrote, “the freedom of choice and action, united conscience, necessarily implies a responsibility to a lawgiver and to a law” (Cousins 105). Conscience was therefore “necessary to the people’s own safety, and orderly government” (Adams 387, 398). Only conscience, rooted in transcendent moral values, imposing a sense of responsibility upon autonomous rational individuals, provides the restrained on human conduct necessary for the survival of government by the people.

There is no doubt that leaving conscience to individual determination carries risk. There is no guarantee, the Founders said, that individuals will not suffer from imperfection in “moral sense” or, that all will agree as to what the relevant transcendent or moral principle should be. But as frail as it may be individual conscience is still a rare instance where individual responsibility to determine moral norms recognized, and in fact, often provided the only contemporary (as well as classical, e.g. Antigone) voice against what we now universally agree to have been atrocities in human history. Therefore the individually conscience is paramount to the individual responsibility to determine moral norms essential to the process of law, i.e. jurisprudence, in the safeguard of liberties, and the protection against the enactment and enforcement of unjust laws.

“If there were no eternal consciousness in a man, if at the bottom of everything there were only a wild ferment, a power that twisting in dark passions produced everything great or inconsequential; if an unfathomable, insatiable emptiness lay hid beneath everything, what then would life be but despair? If it were thus, if there were no sacred bound uniting mankind. If one generation succeeded the other as the songs of birds in the woods, if the human race passed through the world as a ship through the sea or the wind through the desert, a thoughtless and fruitless whim, if an eternal oblivion always lurked hungrily for its prey and there were no power strong enough to wrest it from the clutches – how empty and devoid of comfort life would be! But for that reason it is not so, and as God created man and woman, so too he shaped the hero and the poet or speech-maker.”
– Soren Kierkegaard –

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