MEMBERS OF LIBERAL SOCIETIES respect conscience. They generally consider it wrong to force another to do something she thinks is morally odious. John Rawls asserts, "the question of equal liberty of conscience is settled. It is one of the fixed points of our considered judgments of justice" (1971: 206). In this paper, we attempt to explain why liberty of conscience is a fixed point, or, why conscience has normative significance. Our answer, which draws on the resources of the contractualist tradition in moral philosophy, is not only of interest in its own right, but also clarifies a number of practical questions concerning the legal protection of conscience. We begin in section 1 by developing a definition of conscience and explaining what it means to violate conscience. In section 2, we criticize three attempts to explain the normative significance of conscience, including Martha Nussbaum's recent defense. In section 3, we develop a contractualist explanation of the normative significance of conscience that we believe can remedy the defects in the accounts assessed in section 2 and ground a norm of respect for conscience. In section 4, we conclude.
What Is Conscience?
Conscience is a faculty of moral reasoning. When John asserts that, say, his conscience requires pacifism, he acknowledges pacifism as a deliverance of this moral faculty. It is often claimed that an intervention, such as conscripting John to fight in a war, violates his conscience. However, if conscience is a faculty of moral reasoning, this standard way of speaking is misleading since it is unclear how a faculty can be violated. We would do better to say that violating John's conscience means to force him to act contrary to his judgments. Therefore, we should rather say that John's freedom of action is restricted when he is forced to do something that contravenes some deliverance of his conscience. The claim that "conscripting John for military service violates his conscience" is simply shorthand for the idea that conscription would violate John because his faculty of moral reasoning delivered the judgment that it is wrong for him to kill people. Shorthands like this are useful and we may use them in the discussion that follows. When we do use them, however, keep in mind that violations of conscience are violations of a person, rather than a faculty or a judgment.
Many understand conscience as a faculty of perception, but we want to avoid the implication that conscience is a faculty that perceives an external moral reality. Such a view has figured prominently in the history of philosophy, and we will discuss it in section 2, but here we propose a definition of conscience that is neutral between views that understand conscience as a basic perceptual faculty that directly or immediately receives information about moral reality and views that understand conscience subjectively, as a faculty of reasoning where moral judgments are mediated through other beliefs and attitudes of the agent. To define conscience as a basic perceptual faculty would be to endorse a substantive characterization against subjective interpretations in our definition and preclude an assessment of more recent understandings of conscience.
Conscience is not implicated in all moral judgments. Rather, it is the human faculty that delivers judgments that lie at the core of one's moral judgments. To understand the idea of a core moral judgment, consider a moral judgment that is clearly not a dictate of conscience. Brody judges that he should not go into the office this particular Sunday. His family has been complaining that he spends too much time working, so he feels guilty and concludes that he ought to stay home. This conclusion is a moral judgment, but were his boss to require that he come to the office on Sunday, we should not say that Brody's boss violated his conscience. Suppose, however, that John is a practicing Christian who believes that God has set apart Sundays for worship and rest. Then suppose John's boss forces him to come to the office on Sunday, causing him to violate this duty to God. Here, the requirement violates John's conscience by contravening a core moral judgment: his judgment that he has a duty to God not to work on Sundays. But what distinguishes the latter "core" judgment from the former more peripheral one? In our view, moral judgments are judgments about what moral reasons agents have. We shall understand some of these moral reasons in deontological terms as making categorical demands of individuals. Conscience is the faculty of moral judgment that generates categorical reasons for action grounded in a core of a network of moral reasons. Core moral reasons are moral reasons that have significant importance in an individual's practical deliberations and, consequently, order and structure the agent's entire network of moral reasons. (1) They are reasons on which peripheral reasons rely in order to acquire their normative force. John may judge that he has reason to organize his workweek in such a way that all his responsibilities at work are met before Sunday. John's reason to do so is not "core" but depends on a core moral judgment that he has a duty to God not to work on Sundays. His reason not to work on Sundays orders and structures his reason to work longer hours during the week or not to procrastinate on projects.
Core moral reasons are often tied to deeply held principles and important personal life projects. These principles and projects often derive from what P. F. Strawson calls "individual ideals," those principles and evaluations that "govern choices and decisions which are of the greatest importance to men" (1974: 31). Individual ideals are descriptions of highly valued forms of life. Examples include the ideals of the major world religions. If Reba is a Muslim and has an individual ideal of obedience to Allah, then she will adopt a set of core principles and pursue a series of projects, such as fasting during Ramadan and avoiding pork and alcohol. These core-derived projects determine many of her other reasons, affecting whom she marries, where she lives and which restaurants she patronizes.
We may now say that conscience is a faculty that delivers core moraljudgments, judgments that concern the reasons entailed by individual ideals. It is now easier to explain what a violation of conscience consists in. Recall that consciences themselves are not violated; rather, when we say that someone's conscience is violated, we just mean that a person has been forced to contravene the judgments of her conscience. Therefore, if Reba merely fails to live up to her core moral judgments or her individual ideal, she has not violated her conscience. For instance, suppose that Reba grows lax in her Islamic practice or starts to visit restaurants that are not certified Halal. Reba has not thereby violated her conscience. To violate Reba's conscience, someone must compel her to contravene her core moral judgments. Thus, we shall define a conscience violation as follows:
A violates B's conscience iff:
(1) A coercively interferes with B;
(2) A's coercive interference compels B to contravene B's core moral duties.
The first condition employs the admittedly complex concepts of coercion and interference. To avoid well-known theoretical controversies, we shall simply define interference as an act that reduces the option set of another. Interference is coercive, we will say, when it reduces the option set by way of a perceived threat. Accordingly, a coercive interference need not be intentional, though it must be perceived to be such. (2) All that is required is an action that reduces someone's option set by way of some perceived intentional threat. (3) The first condition holds that A brings this about in B. The second condition requires that for A to violate B's conscience, A must compel B to contravene B's core moral duties. A reduces B's option set in such a way that B will contravene her duty or, if she performs it, A will introduce some other significant cost. For instance, suppose that John employs Reba and that jobs are scarce. If John threatens to fire Reba unless she converts from Islam to Christianity, then he compels her to violate a number of core duties or lose her job. John's interference thereby produces a significant loss in her well-being. (4)
The second condition also employs the concept of a core moral duty. Suppose that Reba has a list of Muslim-friendly restaurants, but that the restaurants are ranked. Lower-ranked restaurants have a number of Halal options, but they are not Halal certified. That is, their menus contain some items that are forbidden to Muslims. If John threatens to fire Reba unless she joins colleagues for a working lunch at a lower-ranked restaurant, he has not violated her conscience. She could simply order the veggie plate. John's threat here reduces her option set and may reduce her well-being by some amount, but he does not compel her to contravene any moral duty. If such lunches are common practice in John's office, and if he in other ways cultivates an environment where Muslims do not feel welcome or part of the "team," he may be guilty of some kind of workplace discrimination, but not a violation of conscience. It is only if John's interference forces Reba to contravene one of her core moral duties, like the duty to avoid pork, that he violates her conscience.
Finally, the second condition connects the relevant moral duties to individual ideals, since these duties are rooted in her core moral reasons. To illustrate, consider a moral duty not rooted in one's individual ideal. Suppose that Reba's Islamic faith does not commit her concerning whether she is permitted to exploit a loophole in accounting procedures to improve the appearance of her company's balance sheet. Nonetheless, she regards herself as having a professional moral duty not to deviate from standard industry practices. If John threatens...