Constitution and justice, reforms and scandals, dignity and culture – plenty of strong words and weak thoughts have recently echoed in the Croatian media, as expected at the height of the pre-election campaign. But it is all the more unexpected that what is missing among all these mantras and mirages is conscience. What can politics devoid of conscience lead to? Or, more importantly, to what kind of politics does a conscience devoid of faith lead? We sought the answers to these questions from a prominent American legal expert, Steven D. Smith, who, in his latest book, attributes the downfall of the modern West exactly to the disintegration of conscience. In addition to interpreting contemporary religio-political polarizations, the Warren Distinguished Professor of Law at the University of San Diego also outlined the worrisome horizons of the future of the appeal of conscience for Glas Koncila.
Although I hold sympathy for that assertion, it is not mine. It was first made by the eminent historian Jacques Barzun, who chronicled the development of many fundamental commitments of our civilization: emancipation, secularism, individualism… Barzun put forward a pretty good argument that these values have exhausted themselves after a glorious run and are now undermining themselves and our whole civilization as well. There is a strong case for such a conclusion, but I do not endorse it; I try to remain somewhat agnostic about whether it is true.
Because history is not determinate. We should not accept the historical trajectory of things as the inevitable destiny. The future still has to be made, and we ought to contribute to it.
It is hard to answer such questions with certainty, but conscience seems to be both a cause and a reflection of historical developments. Commitment to conscience is central to our culture, therefore it has also been a key component of many processes, especially in law. And the different meanings conscience has come to have still contribute to changes in the contemporary world.
Even within a particular time, the term conscience is used in different senses – let alone across different times. These senses are related and in some ways continuous, but they can nevertheless be opposite, as is the case today. I do not doubt that Thomas More – if he could have visited our time – would tell us the same thing that he would have told his contemporary, Martin Luther: »When you use the word ‘conscience’, you are not really talking about conscience!«
The primary modern meaning of listening to your conscience as being true to yourself and being authentic is traceable to the notion of conscience that even people like Thomas More used. Yet in a sense, this meaning is the complete opposite of what More thought conscience was. For example, the transcendent basis of conscience—the duty to do as God wills– was crucial to both of the two historical opponents, Thomas More and Martin Luther, but today this basis is not part of the standard meaning of conscience at all. Since the 20th century, society has come to tolerate that a person’s religious beliefs may shape their conscience, but it does not find these beliefs essential for conscience anymore.
It is impossible to pinpoint the moment when it all went wrong, partially because there is something in the very notion of conscience used even by someone like Thomas More that precipitated this development. More disagreed with Luther’s subjective individualistic notion of conscience. For him, conscience was a matter of communion, an instrument of living in accordance with the consensus of Christians over the centuries, by contrast to Luther, who closed his famous speech at the Diet of Worms by defying institutional Christian authority with the words: »Here I stand! I can do no other!« Yet even More could not avoid the individualistic aspect of conscience – private judgment.
It was conscience that led Luther to unravel the Christian consensus More relied on, thus treading the path of religious pluralism. And it was religious pluralism that enabled the development of the modern notion of conscience, a degeneration of the intrinsic characteristics of conscience More strove to resist. Thus it could be said that the disintegration of conscience was implicit in the very commitment to conscience.
The most obvious way that it was troublesome was that the insistence on following his conscience put him at odds with just about everybody who mattered in England at the time: the king, the government, and even his own family. What he regarded as conscience led to his death; but there is also a less obvious sense in which it was troublesome. It contained the seeds of what would grow to undermine the Christendom he was trying to defend. The authenticity and expressive individualism embedded in conscience proved to be corrosive to the whole of our civilization.
Yes, devout Christians are still persecuted like More was – hopefully, without suffering executions (at least in the Western world). People who today find themselves at odds with the government for adhering to their conscience are probably closer to More in their understanding of conscience than to the prevailing authenticity-based idea of conscience. Those would certainly include the Christians who hold fairly traditional views that have become culturally unpopular. And if we remember Christ’s words that his followers would be reviled by the powers that be, it is hard to find their persecution surprising.
That has especially been true in the United States, where a majority of people have described themselves as Christians all along. That number may now be declining, but it is still a majority. Yet this simple statement can conceal two important phenomena. One is that there are a lot of people who describe themselves as Christians but show a fairly nominal, inherited commitment. A high percentage of people who self-identify as Christians in the USA do not go to church nor do they follow Church’s teachings. But I am not the first to notice that there is another group of people that also go under the name of Christians while being even more hostile to traditional, orthodox Christianity than non-Christians typically are. That is why I think persecution can happen even in a place that is mostly Christian – but in reality sort-of-Christian, or not Christian at all. In other words, if it is pagan.
We followed a similar path in California in 2008. We voted for a proposition that aimed to defend marriage, but it was declared unconstitutional immediately after it was passed. But I feel the predominant sentiment would be the opposite today. A person who defends traditional marriage as the union of a man and a woman is depicted as intolerant, even anachronistic.
I was reacting to a phenomenon common in our legal system, where someone challenges a long-standing institution in court, purporting to have an empirical study or two that shows this long-standing tradition to be without any rational basis. This is how centuries of tradition can be dismissed as unconstitutional just because a shallow legal view supported by some dubious studies does not find any support for it. Plainly speaking, I think that is complete madness.
Because tradition is not simply a conveyor of received wisdom, but a valuable form of life. And we can see the effects of its subversion all around. Social and personal dislocations reflected in the growing rates of depression and suicide warn us that people are not embedded in a viable form of life that provides them with a purpose anymore; the »enlightenment« has left them unmoored.
I find Augustine’s parable of the two cities quite instructive in this sense. The City of God and the Earthly City are constituted by different loves: different fundamental commitments stemming from different fundamental beliefs. They may sometimes be mutually supportive – and that is what Christians presumably strive for – but they are inevitably going to be at war with each other. These culture wars are at the heart of my book »Pagans and Christians in the City«, and many other thinkers have raised similar questions, including religious leaders both Catholic and Evangelical.
Christianity prevailed over paganism in late antiquity officially, but not in any thorough sense. The suppression of paganism was important because Christianity provided the underlying ideal for understanding our world and shaping our culture. Yet paganism persisted all along. With the onset of modernity, this latent paganism came to the surface and has since become the official position.
Speaking in human terms, I dare not be optimistic, but I do not believe the future depends only on our human efforts. When Martin Heidegger was asked in an interview what philosophy can do to correct our modern situation, he said: »I thought about this a lot, and my conclusion is that only a god can save us.« I would only add: through the Church. The Church might not currently be in the healthiest condition, and it has previously faced periods where it looked like it was falling apart. But its ultimate triumph is assured. That does not mean the Church will prevail in a way that will solve our current political or social problems in the way we would like, but it allows for hopefulness.
I wrote about it the most in the third chapter dedicated to William J. Brennan Jr., probably the most influential American justice in the last half-century – especially influential in adopting this division of the private and the public person and in pouring this fragmentation into constitutional law.
In this compartmentalized perspective, the private person and the public person are supposed to operate under different normative scripts: in the private sphere, one can supposedly act on one’s convictions, but they are not supposed to bring them into the public sphere. It is almost as if the public and the private person are two different people. And thus the person becomes like an actor portraying two different characters in two different movies, albeit in the same body. For many people – primarily for those who try to live their faith seriously – this severe tension produces a personal disintegration. And when you import it into constitutional law and impose it on the whole country as a legal matter, it produces societal fragmentation.
It is like a people split in itself. Although »we the people« in the non-public sense may have a full repertoire of beliefs, when »we the people« act in the public role, they express different beliefs. The general outline, however, would depend on the particular history of a particular country. Up until the 1960s, the USA was unapologetically Christian as a public matter. Due to the concern about the »godless communism« of the East, in the 1950s the USA acted to adopt »In God We Trust« as the national motto and to put the words »under God« in the pledge of allegiance. Even if this »piety on the Potomac« was shallow, it at least appeared religious. But in the next decade, all that had shifted to a religiously neutral secularism. Some of those instances of governmental religion were ruled out of the bounds of our constitution; many others were preserved on the pretext that they had lost their religious significance. But the final result is a real historical divide.
If Americans look back to the most profound statements of the country’s character, like the Declaration of Independence or Lincoln’s Second Inaugural Address, they will notice their religious character; in Lincoln’s case, the whole text is a profound theological meditation. However, such statements are unconstitutional under modern constitutional standards, so modern advocates of the secular regime find them awkward and try to explain them away. But such » embarrassing « statements were pervasive in the past. And this is where the divide becomes apparent: either we disavow and ignore the past or declare it unconstitutional, acknowledging we were violating our constitutional decrees for two centuries, until discovering what they really meant only in the 1960s.
There is a serious polarization more severe than at any time in recent memory, and this has paralyzing effects on the government and politics. But I think this disintegration is also reflected in the lack of integrity of our political parties. The conflict is framed in terms of progressives versus conservatives, and conservatives may claim to value religion; but there are plenty of reasons to suspect cynicism rather than sincere devotion on the part of their leaders. As for safety threats, I find the civil war scenario quite unlikely because the contrasting beliefs are not regionally distributed, as was the case with the attitude towards slavery before the Civil War. But if all of the conservatives lived in the western states and all of the progressives in the eastern states, there would not be much to stop the country from splitting apart.
Hanna Arendt wrote that not only did authority disappear from the modern world, but with it disappeared the very understanding of what authority was. The cult of authenticity and expressive individualism – the foremost modern product of conscience – is almost the antithesis of vanished authority: there cannot be any authority for me except myself. This is evidenced in the precipitous decline of confidence in institutions, in the government, and the corporate world.
I tend to look at the Church as the source of greater hopefulness for addressing these issues. And by the Church, I do not just mean the Catholic Church, but the whole Christian community. This Church may not be the beacon it was in the past, but we can purify it by rediscovering solidarity that can replace our atomistic individualism, by building our local communities in hope that they gain the strength to provide direction to all those who might be looking for it. The option of the »city on the hill« is not radical and it does not solve the problem in the aggregate, but it is achievable, and there is not much else we can do as individuals. It is hard to predict what awaits us, but we can strive to hold onto the things that are good and hope for good things to arise. As Blessed John Henry Newman put it, »I do not ask to see / The distant scene; one step enough for me«.
