Mirror of Justice

Here's a post, from April 2005, that I thought was worth re-visiting (in light of, among other things, our own Rob Vischer's new book on conscience):

More Thoughts on Americans, Catholics, and Conscience

For starters, Professor Steven Smith has written several interesting papers -- available at SSRN -- on the problem of conscience.  In "The Tenuous Case for Conscience", he writes:

If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably "freedom of conscience." But some observers also perceive a progressive cheapening of conscience - even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke "conscience," do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what "conscience" is or why it matters?

This essay addresses two questions. The first is discussed briefly: what is "conscience"? What do we have in mind when we say that someone acted from "conscience"? A second question receives more extended discussion: granted its importance to the individuals who assert it, still, why should "conscience" deserve special respect or accommodation from society, or from the state? That question forces us to consider the metaethical presuppositions of claims of conscience. The discussion suggests that claims to conscience may be defensible only on certain somewhat rarified moral and metaethical assumptions. The discussion further suggests that shifts in such assumptions have transformed the meaning of claims to "freedom of conscience," so that such claims typically now mean almost the opposite of what they meant when asserted by early champions of conscience such as Thomas More, Roger Williams, and John Locke.

In "Interrogating Thomas More:  The Conundrums of Conscience," he writes:

The martyrdom of Thomas More for refusing to take an oath affirming Henry VIII's marriage to Anne Boleyn and his supremacy over the church has fascinated historians, playwrights, and their readers. Why did More refuse, at such sacrifice to take an oath that nearly everyone in the realm (including More's family and friends) had taken - and that they regarded him as obstinate and absurd for not taking? Why did More refuse to explain the reasons for his refusal, even to close family and friends, beyond saying that they were reasons of "conscience"? And how can More's eloquent affirmation that he would "leave every man to own conscience" and that "every man should leave me to mine" be reconciled with his active persecution and execution of Protestants whose consciences impelled them to embrace what More regarded as heresy? This essay investigates these questions and reflects on their significance for modern commitments to (and difficulties with) the idea of "freedom of conscience."

In another vein, but also on the question of conscience, I'm very grateful to Steve Shiffrin, for his note, and also to Rob Vischer for his response.  I'd offer just three, minor thoughts about their exchange.

Steve writes to Rob:  "You seem to suggest that Catholic legal theory can help to lead American Catholics away from their disagreements with the Vatican.  What I like about the Mirror of Justice site is that it brings together people who bring quite different Catholic perspectives to the site.  Your comment seems to suggest that Catholic legal theory is committed to the view that American Catholics are wrong."  To which Rob replies:  "I think it's important that we help elucidate connections between the Gospel and our real-world environment, particularly connections that run along our legal and political cultures, challenging each other to reflect more deeply on what it means to follow Christ in the modern world.  More often than not, this effort will be directed toward encouraging Catholics to recognize the wisdom of Church teaching on a range of issues that are given short shrift in the current climate (notably war, materialism, and poverty, not just sexuality).  At other times, though, Catholic legal theorists may challenge the Church to recognize overlooked or potentially misconstrued implications of the Gospel."

I think it is worth remembering -- because, in the last few weeks, the press covering the death of Pope John Paul II and the election of Pope Benedict XVI rairly has -- that not all "American Catholics" disagree with "the Vatican."  (I'm putting aside the additional point that many American Catholics who profess disagreement with "the Vatican" -- I'm certainly not talking about Professor Shiffrin or any of my MOJ colleagues here -- have, I think, been misinformed by the press about what "the Vatican" claims and teaches.  The coverage of Pope Benedict's pre-election theological work -- on, for example, "Truth and Tolerance" -- has, in my judgment, been egregiously bad in this respect). 

Maybe I'm being pollyannish, trying to paper over differences, but -- as one would hope, I suppose -- most Catholics believe and assent to most of what the Magisterium holds out as the crucial content of the Catholic faith:  We have been redeemed through the saving work of Jesus Christ, who is Lord, who has gifted us with the Church and its sacraments.  And, in many cases, I imagine that American Catholics' failure to embrace that content has more to do with lax instruction than specific rejection.  (For example, I cannot help thinking that polls revealing that a non-trivial number of Catholics do not accept the divinity of Christ probably means that 10% didn't understand the question, or has never been given even rudimentary catechesis -- not that there is a big schism between the United States and Rome on the matter).  The press loves to talk about -- and, not surprisingly, we MOJ-types often talk about -- the hot-button areas of serious, often conscientious and principled, disagreement, but I like to think that, again, the vast majority of us agree about the vast majority of the Church's teachings.

Also, it seems worth emphasizing that there is nothing uniquely "American" about contemporary rejection of -- or failure to embrace -- certain teachings regarding the Usual Suspects issues.  That is, do American Catholics tend not to embrace the Magisterium's teaching regarding contraception because they are "American," or for some other reason?  I'm not sure.

Finally, I think that there are a number of questions where (a) Catholic teaching, properly understood, poses a real challenge to "American" premises and practices; but (b) most of us would agree, despite our various differences, that part of our job here at MOJ might well be -- in Steve's words -- to "help to lead American Catholics away from their disagreements with the [Magisterium]."  To the extent that American Catholics, qua Americans, believe that (say) utilitarian reasoning can and should supply the answers to moral questions about human life and the common good, then these Americans -- however well-meaning -- are mistaken, and in need of "Catholic legal theory's" help.