“. . . the law is the public conscience . . .”
— Thomas Hobbes, Leviathan
We know too much about the sausage factory – the lobbying, the money, the special interests, and the compromises – to equate law with the public conscience. We may, in fact, believe that there is no such thing as a public conscience. If so, we may hold to what seventeenth century English philosopher Thomas Hobbes calls a “seditious doctrine”:
Another doctrine repugnant to civil society, is, that whatsoever a man does against his conscience, is sin; and it dependeth on the presumption of making himself judge of good and evil. For a man’s conscience, and his judgment is the same thing; and as the judgment, so also the conscience may be erroneous. Therefore, though he that is subject to no civil law, sinneth in all he does against his conscience, because he has no other rule to follow but his own reason; yet it is not so with him that lives in a commonwealth; because the law is the public conscience, by which he hath already undertaken to be guided. Otherwise in such diversity, as there is of private consciences, which are but private opinions, the commonwealth must needs be distracted, and no man dare to obey the sovereign power, further than it shall seem good in his own eyes. (Kindle loc. 5022-5027)
You would think from this passage alone that Hobbes has great faith in legislation. But Hobbes doesn’t care much for legislatures. He prefers a strong executive, to put it mildly: he believes that the judges and any legislature should be in the service of the executive. And he admits that, no matter what the form of government, all laws may not be just. Hobbes asserts, however, that we are bound to obey even unjust laws because we made our public conscience forever superior to our private ones when we entered into compact to create a government.
Hobbes’ description of this “seditious doctrine” of individual morality anticipates Immanuel Kant, the eighteenth century German philosopher whose famous “categorical imperative” asserts that “one chooses to act or not act solely on the basis of principle and never on the basis of the calculation of results.” Kant believes that, “in order to be a moral principle, a precept needs to be chosen for oneself, not imposed by someone else or by ‘nature’” (Koterski 80). The king’s or the legislature’s law, then, cannot be a moral principle, cannot be or substitute for a private man’s conscience. So Kant champions private morality, and Hobbes champions public morality.
Neither leaves much room for the other. Hobbes would find that Kant’s categorical imperative leads to weak government and eventually anarchy. Kant would find that Hobbes’s notion of conscience would lead to a loss of individual conscience and freedom. (Here’s a link to a great article in rough draft form by Gerald Gaus entitled, “Private and Public Conscience (Or, Is the Sanctity of Conscience a Liberal Commitment or an Anarchical Fallacy?)” that addresses these competing ideas much better than I can.)
Middle ground is suggested by the reference to “nature” in Joseph Koterski’s characterization of Kant’s position above. While my individual conscience may not be enough to justify my disobedience to law, the relation between my conscience and natural law may be enough to justify disobedience.
Natural law – not a king’s or a legislature’s law – is the public conscience. This public conscience doesn’t displace my private conscience in governmental matters, as public conscience as expressed in positive law does for Hobbes. Instead, my private conscience bears witness to the public conscience through reason. Indeed, if natural law weren’t universally available to all people through their God-given conscience and capacity to reason, natural law could not exist. But because natural law is available to all people through reason, one’s private conscience can find some of its expression in the public conscience, and one has legal grounds to revolt from King George III, to prosecute Nazi war criminals (who obeyed German positive law to the letter), and to sit in the front of the bus – all forms of civil disobedience justified by one’s conscience as well as by natural law.
Natural law’s theory and use from the ancients forward as well its partial delineation makes it objective. Its appeal to conscience, its unwritten status, and its incomplete delineation make it flexible. We can argue about whether natural law’s notion of equality applies to homosexual rights, for instance. But when we do, from the perspective of the philosophy of our nation’s founding, we’re asking the right questions.
Each of these three positions with respect to the public conscience reflects one of my three interlocking circles of moderation. Each of these circles from my June 28, 2014 post, therefore, now receives its patron philosopher.
“Of the people” – active government – tends to emphasize the public conscience as expressed by law. While the New Englanders who most championed active government in the United States and Thomas Hobbes have very different theories of governmental structure, they both believe in a strong government whose laws express society’s conscience. Hobbes is, therefore, active government’s patron philosopher. (I know the idea of associating Hobbes with those who seek more government activism today would offend many of Hobbes’s admirers and many activists, too, but I’m limiting their association to the role of the public conscience and the relationship between government and the individual.)
“By the people” – responsive government – emphasizes individual rights and conscience over government. I anoint Immanuel Kant as its patron philosopher.
“For the people” – responsible government – emphasizes public morality and minority rights over majority rule. Seventeenth century British philosopher John Locke, whose writings formed part of the basis of our Declaration of Independence, is hereby installed as its patron philosopher.
Moderation starts when we assert one patron’s views with due respect to the views of the other two.
|Public conscience is . . .||Positive law||Natural law||An invalid construct|
|Patron philosopher of . . .||“Of the people” – active government||“For the people” – responsible government||“By the people” – responsive government|
Gaus, Gerald. “Private and Public Conscience (Or, Is the Sanctity of Conscience a Liberal Commitment or an Anarchical Fallacy?).” (2014): n. pag. 2014. Web. 22 July 2014.
Hobbes, Thomas; J. C. A. Gaskin (1996-07-04). Leviathan (Oxford World’s Classics) Oxford University Press. Kindle Edition.
Koterski, Joseph. Natural Law and Human Nature: Course Guidebook. Chantilly, VA: Teaching, 2002. Print.