Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, April 13, 2009

Stanley Fish gets conscience (half-) right

Stanley Fish weighs in on the debate over the Bush Administration's conscience regulations.  As usual, Fish starts out with a valuable insight, then careens wildly beyond the bounds of reason.  Here's the helpful insight:

Were he alive, the English philosopher Thomas Hobbes would dissent [from the individualized view of conscience] for he has another understanding of conscience altogether, one that casts quite a different light on this conflict. Hobbes begins with the etymology of “conscience” — conscire, to know in concert with another — and proceeds to a definition of conscience that turns the one we know upside down. Since conscience, correctly understood, refers to those occasions “when two or more men know of one and the same fact . . . which is as much to know it together,” it is a violation of conscience — of knowing together — to prefer their “secret thoughts” to what has been publicly established.

Fish is absolutely correct: conscience is not a self-contained "black box" -- it is an inherently self-transcendent set of moral claims.  But that does not invariably mean that the exercise of conscience must lead to some "public" establishment of conscience's substance.  Fish seems to assume that the alternative to an individualized conscience is a state-established conscience, and it leads him to this rather sinister rationale for condemning the Bush regulations:

This sequestering of religion in a private space is a cornerstone of enlightenment liberalism which only works as a political system if everyone agrees to comport himself or herself as a citizen and not as a sectarian, at least for the purposes of public transactions.

Conscience as "two or more people knowing?"  Yes!  Conscience as "state-imposed moral claims pushing religion out of the public square?"  Not so much.  For an alternative take, you can read this paper (or if I only get one chance to persuade you of my thesis, then please wait for the book coming this fall).


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