Devon, PA. Stanley Fish has taken up a lot of public space during his career, but never has he darkened the depths in such monstrous fashion as he does in his most recent little post for The New York Times, “Conscience vs. Conscience.” There, he offers a welcome provocation to consider the nature of the freedom of conscience in liberal society even as-as always-he offers a clear sighted vision of absolute untruth. What kind of untruth? That particular sort at which most persons thinking would dead-end if they actually pursued their ideas to their logical conclusions. We owe Fish thanks for doing this thinking for our confreres, the patriots of advanced liberal society, even as we realize that they, in good conscience, would recoil from the conclusions Fish implies they must accept, while Fish seems perfectly content with them.
The occasion of Fish’s essay is the removal of the so-called “Conscience Clause,” which protects doctors and other health care professionals from criminal or professional penalty if they refuse to participate in procedures such as abortion, infanticide, or in the distribution of contraceptive devices, for “moral or religious reasons.” As Fish writes,
It is called the “conscience clause” because it affirms the claims of conscience – one’s inner sense of what is right – against the competing claims of professional obligations.
In order to set the matter straight, Fish takes a historical look at the idea of conscience in hopes that a re-description of some past authority’s brilliant perceptions might recommend themselves as a prescription for our present debate. He deploys that unobjectionable modern academic form of argument that at once illuminates past and present. Most contemporary arguments outside the newspapers proceed in such a fashion; that is, most modern debates are largely hermeneutic, and seek to establish an interpretation of a key text or intellectual authority as a means of persuading us of the force of one idea or another. We here at FPR, for instance, tend to refer back to Aristotle, Aquinas, Burke, Tocqueville, Belloc, or Chesterton as those authorities who best contemplated the human condition and whose observations, therefore, possess a kind of compelling force when we apply those past authorities to present questions.
Hermeneutically grounded arguments as we see them in our time came into fashion for a variety of good and bad reasons: we are suspicious of claims from experience and so prefer claims from the archive, for instance; we are suspicious of pure logical arguments, preferring those which are grounded in precedent (a taste we inherit, perhaps, from the Anglo-American law tradition, as Tocqueville speculated!); we are doubtful of dilettantism and amateurishness, whereas we remain enamored of the expert-especially the expert who can present himself in the tweedy, Germanic, and specialized garment of the trained researcher. The same tendencies that gave us brilliant studies by Joseph Ratzinger and Hans Urs von Balthasar also foisted upon us Michel Foucault and, well, his sundry minions.
If the causes of modern hermeneutical argumentation are many, they certainly converge on one principle: the “ancient” authority should invariably be either a well respected but difficult, prolific, and misunderstood personage (e.g., Aquinas) or a significant but generally overlooked one (Origen or George Santayana come to mind). Whom does Fish drag forth from the archive to put our lands in order?
Yes, that’s right: Thomas Hobbes. Muses Fish,
Were he alive, the English philosopher Thomas Hobbes would dissent, 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.
And further down, he feeds us:
Hobbes’s larger point – the point he is always making – is that if one gets to prefer one’s own internal judgments to the judgments of authorized external bodies (legislatures, courts, professional associations), the result will be the undermining of public order and the substitution of personal whim for general decorums
One would expect Hobbes to have much to tell us about the prohibition of conscience as any kind of “private” or “individual” judgment, since it was his life’s work to foreclose all appeal to natural law, to God, to any law or sovereignty besides that of the monarch. He stands out in our history as the great, foundational thinker of the absolute state, the absolutist king-of the proscription of any concept of law that might challenge the State as not simply the legitimate executor of law but as the solitary one who decides what is permitted and what is forbidden, what is good and what is evil. Hobbes is thus the most radical philosopher of the modern state-the first man to conceive that such a state, temporal and immanent though it was, could claim a transcendent and unquestionable authority. Whatever is beyond its clutches is God’s business-if he exists. Whatever we can see and know is ruled by the absolute, sovereign force of the state. Eric Voegelin’s searing, critical account of Hobbes observes how he first severed and set aside the classical appeal to what is good, to the Good itself, from political thought, and then put the temporal monarch in its place:
Hobbes knows that human action can be considered rational only if it is oriented beyond all intermediate stages of ends and means to a last end, [the] summum bomum. Hobbes further knows that the summum bonum was the primary condition of rational ethics in the classical as well as the scholastic thinkers. Therefore, in the introduction to the Leviathan he states explicitly that he proposes to leave the summum bonum of the “old thinkers” out of his construct of society. If there is no summum bonum, however, there is no point of orientation that can endow human action with rationality. Action, then, can only be represented as motivated by passions, above all, by the passion of aggression, the overcoming of one’s fellow man. The “natural” state of society must be understood as the war of all against all, if men do not in free love orient their actions to the highest good. The only way out of the warfare of this passion-conditioned state of nature is to submit to a passion stronger than all others, which will subdue their aggressiveness and drive them to live in a peaceful order.
Cut off from the Good (summum bonum), and even from the desire for it, men may still be driven by their fears to submission to a worldly power that claims absolute power to order society by domination and force. The state becomes the sole judge of good and evil, the permissible and the forbidden, not because it claims to be the Good Itself, but because it is the only entity that remains once we cease to orient ourselves to the Good, or at least confess our invincible ignorance of it. The Good is the end of reason; no Good, no reason; no reason, only wills; since multiple irrational wills running free in nature terrify us, we submit to one will alone, that of the sovereign state who may make and remake society by sheer power.
And so, yes, of course Hobbes would not defend the person’s conscience from submission to the will of the state. He did what he could to suggest that such a question was absurd: what have any individual’s intuition or rational conclusions about what is good to do with reality? Nature is power, and the State is the one sovereign power. What sort of argument from archive, authority, and hermeneutics is this, exactly? One that begs the question, it would seem, for Fish has effectively argued that conscience cannot violate the will of the state precisely because the philosopher of the absolute state claimed that conscience could not violate its will.
Fish’s claim is, initially, even more confusing as a rhetorical gesture than it is as a rational argument. Hobbes is unquestionably an important thinker. Precisely because he theorized the pretenses of the modern state in its most radical form even as it was coming into being, anyone who would understand modern political thought and indeed the problems that arise in a post-Westphalia, post-Christian, Statist West must face up to Hobbes much as Christ faced Satan during his forty days in the desert. But being the whipping boy and convenient antagonist for political theorists everywhere hardly comes to the same thing as being a reputable, if neglected, authority whose forgotten wisdom properly interpreted might offer us a hermeneutic suitable for our present concerns. A more sound authority, T.S. Eliot, saw fit to dismiss him in a few sentences:
Thomas Hobbes was one of those extraordinary little upstarts whom the chaotic motions of the Renaissance tossed into an eminence which they hardly deserved and have never lost. When I say the Renaissance I mean for this purpose the period between the decay of scholastic philosophy and the rise of modern science. The thirteenth century had the gift of philosophy, or reason; the later seventeenth century had the gift of mathematics, or science; but the period between had ceased to be rational without having learned to be scientific.
An age Eliot did not admire produced a thinker whom he admired even less. As Eliot’s comments further on in the same essay indicate, Hobbes did not discover some new truth, but merely distorted old ones. His distortions gained considerable influence, facilitating the development among modern political thinkers in the Whig tradition of a series of concepts, including the “state of nature,” the “social contract,” and civil or artificial society. And, again, one cannot dispute that nearly every important political thinker from his age to our own has engaged Hobbes’ radical claims about sovereignty. But even the work of the German juridical theorist, Carl Schmitt,-a man whose work has at times elicited comparisons to Hobbes-strikes one as engaging with his predecessor rather than accepting his claims. Fish presents his case as if the poor, long-lost and unjustly neglected Hobbes could clarify the conscience butter, whereas in fact he has been the cause of so much intellectual churning one grows fairly ill at the endless motion.
If Hobbes can only offer familiar, bad answers, and if his reputation inoculates us against finding any rhetoric citing him convincing or even illuminating, why did Fish indulge in this little hermeneutical argument? For reasons, I suspect, quite typical of Fish and, in their own crooked way, quite insightful. Fish knows only one mode of argument-one which I described a few months ago in a short essay called “Stanley Fish and the Lasting Professoriate”:
After the fashion of a modern pop star, he has, with ever-shifting mental dexterity, fashioned and refashioned himself; he has shifted from argument to argument over the decades, always crafting his positions so that they provoke everyone in order to claim a kind of neutral authority. He would be heard as the clear-sighted truth-teller who stands outside the interests of party (political or academic) in order to tell us “how it is.” In truth, the consistent plank in the otherwise fresh lumber of his platforms is the rhetorical strategy of shocking self-described conservatives with his apparent defense of their position, only to show that his defense is merely an attack on this or that putative liberal camp. In the end, neither conservative nor liberal gets away, and only Fish remains, right as rain, the staunch champion of a debate in which no one but he is right-and what he believes in, he is always careful to ensure, is nothing anyone else would ever accept.
If Hobbes somehow were to “best” the opposition, he would still not convince us; Fish does not need him to do so.
As always, Fish’s unsuspecting targets may be multiple. Conservatives who believe in law-and-order and the importance of obedience to proper legal authority are, not incidentally, the very persons who put in place or who supported the Conscience Clause, and who do so out of conviction that abortion is a great moral evil. The opportunity to show such persons that their support of legal authority conflicts with supporting a provision for the legal protection of people who would violate that authority (as, apparently, would be the case if a doctor refused to perform a “legal” state-protected abortion) must have been very tantalizing indeed. Typical of Fish’s usual practice though such a target might be, it seems just as likely Fish is looking to catch American liberals in an uncomfortable position as well.
Many liberals, especially that species whose capacity for abstract thought reaches its limits in the editorial columns of the New York Times, routinely issue such mindless platitudes as “Religion should be kept out of politics,” “Why are those Christians always trying to force their rules down our throats?!”, and “What we need is to get all the moral-making, absolutism, and ‘certainty’ out of law and politics.” Their presuppositions are easy enough to discern. Such persons believe that government and law exist as a kind of housekeeper intended to manage a system of morally neutral procedures that can provide for social order without requiring any consensus on questions of good and evil or requiring any kind of shared beliefs whatever. All such a state and society require is a shared, population-wide fear of the consequences of misbehavior. In other words, so long as everyone obeys the law and keeps to themselves about everything else, society will hum along quite nicely.
Such persons are, of course, the first to spout out words like “rights,” “social justice,” and “fairness,” at the first signs of some law they do not like. Let us refine that: it is not that they register complaints against a violation of their or another’s rights, or against this or that apparent injustice, merely because they “don’t like” the violation or the injustice. They perceive, according to their limited, inadequate, but real lights-their consciences, if you will-that positive law (the law of the state) is violating some permanent, higher law. When they hear Christians or others protesting one positive law or disobeying another because it violates divine or natural law, they bristle that anyone should dare to appeal to a good-to the Good Itself-outside the immanent horizon of what the state has dictated. But these same persons have their own sense of Good and Evil, their own sense of an Absolute that cannot be contradicted, and which everyone with a mind calls “God.” Their God may be a petty one, and their vision of heaven may sometimes consist of little more than a dime bag, a condom, and someone with which to use both, but it is an approach to God and to the summum bonum nonetheless. They cannot set aside or surrender the convictions of their conscience any more than can a Christian-anymore than can anyone. And so, rather charitably, I suggest that Fish is trying to point out to such bien pensant secular liberals that if they really believe what they say against Christians and conservatives of almost any stripe, they must accuse themselves as well. They must either surrender their position or get on board with old Hobbes and subordinate each and every individual will to the State’s sovereign command. Which command? There is no “which.”
If I am right, Fish’s is a subtle gesture indeed. And a superfluous one, given that James Kalb and others have clearly set forth the contradictions intrinsic to liberalism. One needs to have in place a real if imperfect consensus on the summum bonum, if one hopes to convince others that procedural democracy and the tolerance it affords is to be viewed as a good rather than an evil. One cannot claim the state provides for the common good of its citizens, nor can its agents determine how to do so, if it is a matter of indifference for state and citizens alike what the nature of the Good is. In a word, belief in the goodness of any kind of procedural institution (such as participatory democracy) hinges upon an understanding of the Good and the ability to reason from the latter to the former.
One may, of course, follow Hobbes and say that fear, rather than love of the Good, drives obedience to the state’s legal order-and therefore nothing outside the state, the fears it contains, and the weak it protects, matters. I am simply not sure that one who makes such a claim knows what he is about, for it would seem to be an appeal to an absolute standard-a rather dismal but possible vision of the Good-in order to justify one’s claim that there is no absolute standard. These are only the primary contradictions in liberal and Hobbesian thought; it would take many articles more to explore the others.
So much for Fish, but not for the Conscience Clause. It is a curious legal protection indeed-and was intended to be. The Bush administration did not put it in place because it wanted to excuse healthcare professionals from living up to their normal professional obligations. Rather, it recognized that abortion was an intrinsic evil-as murder always is-and wanted to protect those who did good and refused to do evil even when human, positive law instructed them to do otherwise. It was a stop-gap measure intended to remind us all that we live in a country whose laws violate those of nature; those who refuse to participate in our juridically sanctioned culture of death and bear witness against it are thus protected from penalty for service to the Good rather than evil.
What will the apparently inevitable removal of “conscience clause” protections do? It will not change the behavior of those doctors and nurses who refuse to murder children in the womb on principle rather than out of convenience or velleity. It will rather change the kind of witness they bear. At present, such persons are signs of contradiction in a culture that believes the question of technocratic possibility-can one do it?-alone matters, and that questions of moral necessity-should one do something?-are private affairs, pleasant to entertain when watching a murder mystery on television but irrelevant to questions of public policy. But if Obama and his Catholic Democratic sycophants have their way, such persons will be something more than signs of contradiction; in losing their careers or at least their positions, they will be martyrs. The testimony of their loss, one hopes, will convince many more people than an executive Conscience Clause of the grave evil in which our society routinely cooperates, that our laws ratify at the expense of their own legitimacy, and of which Thomas Hobbes, wherever he is, would surely be proud.