Monday, January 23, 2023

Respecting conscience

One of the central insights of Western philosophy, beginning with Socrates, has been that few if any things are as bad for an individual as culpably doing wrong. It is better, we are told through much of the Western philosophical tradition, that it is better to suffer than do injustice.

Now, acting against one’s conscience is always wrong, and is almost always culpably wrong. For the most common case when doing something wrong isn’t culpable is that one is ignorant of the wrongness, but when one acts against one’s conscience one surely isn’t ignorant that one is acting against conscience, and that we ought follow our conscience is obvious.

That said, I think a qualification is plausible. Some wrongdoings are minor, and in those cases the harm to the wrongdoer may be minor as well. But in any case, to get someone to act against their conscience in a matter that according to their conscience is major is to do them grave harm, a harm not that different from death.

Now, the state, just like individuals, should ceteris paribus avoid causing grave harm. Hence, the state should generally avoid getting people to do things that violate their conscience in major matters.

The difficult case, however, is when people’s consciences are mistaken to such a degree that conscience requires them to do something that unjustly harms others. (A less problematic mistake is when conscience is mistaken to such a degree that conscience requires them to do something that’s permissible, but not wrong. In those cases, tolerance is clearly called for. We shouldn’t pressure vegetarians to eat animals even if their conscientious objection to eating animals happens to be mistaken.)

One might think that what I said earlier implies that in this difficult case the state should always allow people to follow their conscience, because after all it is worse to do wrong—and violating conscience is wrong—than to have wrong done to one. But that would be absurd and horrible—think of a racist murderer whose faulty conscience requires them to kill.

A number of considerations, however, keep one from reaching this absurd conclusion.

  1. The harm of violating one’s conscience only happens to one if one willingly violates one’s conscience. If law enforcement physically prevents me from doing something that conscience requires from me, then I haven’t suffered the harm. Thus, interestingly, the consideration I sketched against violating one’s conscience does not apply when one is literally forced (fear of punishment, unless it is severe enough to suspend one’s freedom of will, does not actually force, but only incentives).

  2. In cases where doing wrong and suffering wrong are of roughly the same order of magnitude, it is very intuitive that we should prevent the suffering of wrong rather than the doing of wrong. Imagine that Alice is drowning while at the same time Bob is getting ready to assassinate a politician, but we know for sure that Bob’s bullets have all been replaced with blanks. If our choice is whether to try to dissuade Bob from attempting murder or keep Alice from drowning, we should keep Alice from drowning, evne if on the Socratic view the harm to Bob from attempting murder will be greater than that to Alice from drowning. (I am assuming that in this case the two harms are nonetheless of something like the same order of magnitude.)

  3. A reasonable optimism says that in most cases most people’s consciences are correct. Thus typically we would expect that most violators of a legitimate law will not be acting out of conscience—for a necessarily condition for the legitimacy of a law is that it does not conflict with a correct conscience. Thus, even if there is the rare murderer acting from mistaken conscience, most murderers act against conscience, and by incentivizing abstention from murder, in most cases the law helps people follow their conscience, and the small number of other cases can be tolerated as a side effect. Thus the considerations of conscience favor intolerant laws in such cases. Nonetheless, there are cases where most violators of a law would likely be acting from conscience. Thus, if we had a law requiring eating meat, we would expect that most of the violators would be conscientious. Similarly, a law against something—say, the wearing of certain clothes or symbols—that is rarely done except as a religious practice would likely be a law most violators of which would be conscientious.

  4. When someone’s conscience mistakenly requires something that violates an objective moral rule, there is a two-fold benefit to that person from a law incentivizing following the moral rule. The law is a teacher, and the state’s disapproval may change one’s mind about the matter. And even if it a harm to one to violate conscience, it is also a harm to one to do something wrong even inculpably. Thus, the harm of violating conscience is somewhat offset by the benefit from not doing something else that is wrong.

  5. In some cases the person of mistaken conscience will still do the wrong deed despite the law’s contrary incentive. In such a case, both the perpetrator and the victim may be slightly better off for the law. The victim has a dignitary benefit from the very fact that the state says that the harm was unlawful. That dignitary benefit may be a cold comfort if the victim suffered a grave harm, but it is still a benefit. And the perpetrator is slightly better off, because following one’s conscience against external pressure has an element of admirability even when the conscience is mistaken.

Nonetheless, there will be cases where these considerations do not suffice, and the law should be tolerant of mistaken conscience.

In a just defensive war, to refuse to fight to defend one’s fellow citizens without special reason (perhaps priests and doctors should not kill) is wrong. But a grave harm is done to a conscientious objector who is gotten to fight by legal incentives. Let’s think through the five considerations above. The first mainly applies to laws prohibiting a behavior rather than ones requiring a behavior. Short of brainwashing, it is impossible to make someone fight. (We could superglue their hands to a gun, and then administer electric shocks causing their fingers to spasm and fire a bullet, but that wouldn’t count as fighting.) The second applies somewhat: we do need to weigh the harms to innocent citizens from enemy invaders, harms that might be prevented if our conscientious objector fought. But note that there is something rather speculative about these harms. Someone who fights contrary to conscience is unlikely to be a very effective fighter, and it is far from clear that their military activity would actually prevent any actual harm to innocents. Now, regarding the third consideration, one can design a conscription law with an exemption that few who aren’t conscientious objectors would take advantage of. One way to do this is to require evidence of one’s conscience’s objection to fighting (e.g., prior membership in a pacifist organization). Another way is to impose non-combat duties on conscientious objectors that are as onerous and maybe as dangerous as combat would be. Regarding the fourth consideration, it seems unlikely that a typical conscientious objector’s objections to war would be changed by legal penalties. And the fifth seems a weak consideration in general. Putting all these together, we do not outweigh the prima facie considerations against pressuring conscientious objectors to act against their (mistaken) conscience from the harms in going against conscience.

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