Integrity and Conscience

Nomos XL

Ian Shapiro, Robert Adams

• Publisher: NYU Press
• Year: 1998
• ISBN:
  9780814788837
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Can individuals believe that they are acting with integrity, yet in disobedience to the dictates of their conscience? Can they retain fidelity to their conscience while ignoring a sense of what integrity requires? Integrity and conscience are often thought to be closely related, perhaps even different aspects of a single impulse. This timely book supports a different and more complicated view. Acting with integrity and obeying one's conscience might be mutually reinforcing in some settings, but in others they can live in varying degrees of mutual tension. Bringing together prominent scholars of legal theory and political philosophy, the volume addresses both classic ruminations on integrity and conscience by Plato, Hume, and Kant as well as more contemporary examinations of professional ethics and the complex relations among politics, law and personal morality.

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INTRODUCTION

IAN SHAPIRO AND ROBERT ADAMS

It is difficult to think of someone believing that he is acting with integrity yet disobeying the dictates of his conscience. By the same token, one is hard-pressed to imagine a person feeling compelled to ignore her sense of what integrity requires to remain faithful to her conscience. Even though these observations might appear to suggest that integrity and conscience are closely related ideas, perhaps even different aspects of a single idea, the chapters in this book support a rather different and more complicated generalization. Acting with integrity and obeying one’s conscience might be mutually reinforcing in some settings, but in others they can manifest varying degrees of mutual tension.

Conscience is intensely, perhaps inherently, personal, and in some contexts, so is what we mean by “integrity.” But integrity also has a more public meaning when it is identified with professional, political, and legal codes. Professional integrity, public integrity, and integrity in the law are at least partly interpersonal standards that can coexist more or less felicitously with a person’s sense of what conscience requires. This is not to deny that conscience often, perhaps typically, exhibits an other-regarding dimension. When we describe someone who lacks a conscience as a sociopath, we invoke this dimension implicitly. But the conscience seems necessarily linked to a person’s experienced sense of right and wrong in ways that do not always accompany public integrity. This difference, among others, creates the possibility of conflict between integrity and conscience. It prompts the sustained examination of these two ideas, and of the relations between them, that is undertaken here.

We have divided the chapters in this book into three parts. The first is principally concerned with conceptual issues. In it, Thomas Hill, Nomi Stolzenberg, Elizabeth Kiss, and George Kateb explore various understandings of integrity and conscience in light of different readings of ruminations about them advanced by Plato, Hume, Kant, and others. In part II, John Kane, Karen Jones, and Kenneth Winston look at integrity and conscience in the realms of professionalism and professional ethics, with particular attention to the conduct of science and proprietary access to public officials. The focus in part III is on integrity and conscience in the law, in which David Dyzenhaus, Rogers Smith, Kent Greenawalt, Catherine Wells, Michael McConnell, and Mark Graber consider different dimensions of the complex relationship between the law and personal morality. Some see the tensions between the two as both profound and inescapable; others examine ways in which they may be mutually constraining. All are ultimately concerned with how the law’s legitimacy is linked to conscientious appraisals of the system’s operation by litigants, lawyers, judges, and legal commentators.

I. CONCEPTUAL ISSUES

In chapter 2, Hill explores four different understandings of the general idea of conscience: a popular religious conception, a deflationary social relativist idea, Joseph Butler’s teleological account, and Immanuel Kant’s metaphorical view of conscience as an “inner judge.” Hill examines and compares these different accounts of the importance of conscience in ethics and of the circumstances in which conscience should be respected. He looks at the Kantian conception in greater depth, with particular attention to the ways in which this conception differs from the others and why Kant gave conscience so limited a role in his ethics.

In chapter 3, Stolzenberg takes issue with Hill’s delineation of four differing conceptions of conscience. She disagrees with his contention that each represents a different view of conscience, arguing instead that each of the four conceptions offers a different perspective on the same subject. In her account, it is the perspective that differs from conception to conception, not the object of understanding—the faculty of the conscience—itself. Features that Hill attributes to the so-called relativist conception of conscience—such as awareness of the subjectivity, cultural variability, and potential fallibility of conscientious judgment—are also present in the other three conceptions, not least the Kantian one that he favors.

In chapter 4, Kiss focuses on what Hill concedes are troubling aspects of Kant’s austere view of the conscience. Taking issue with the moral psychology that she discerns behind the Kantian view, Kiss advances in its stead the claim that conscience is first and foremost the emotional capacity to empathize with others. Alluding to the arguments of Hume, Adam Smith, and such contemporary philosophers as Annette Baier and Lawrence Blum, Kiss argues that when we detect a failure of conscience, the problem is not a lack of self-scrutiny in Kant’s sense. Rather, it is a cramped or shattered capacity for emotional identification with others. Although this alternative understanding of the voice of conscience need not contradict the claims of a Kantian ethics, it does suggest a distinct understanding of the moral life in which affect plays a comparatively larger role. According to Kiss, Hill’s critique of “deflationary” understandings of the conscience discounts too much the resources they can offer for moral self-scrutiny.

In chapter 5, Kateb shifts from conscience to integrity, drawing inspiration from readings of Plato’s Apology and Crito. For Kateb, Socrates personified integrity in both public and personal realms. Socratic moral integrity involves an attitude of self-sacrifice, among whose constituent parts are relentless questioning, unwillingness to be an instrument of injustice, and what might be described as a nonretaliatory stance toward the world. Kateb makes the case that Socratic integrity involves shunning positive conclusions or ideals and instead consists of negatives such as abstention, dissent, noncompliance, and dissatisfaction. There is one positive, however: a compound of affection and compassion for others. Without devotion to this, Kateb argues, Socratic integrity could not exist. For Kateb, supporting integrity involves promoting fidelity to this outlook.

II. INTEGRITY, CONSCIENCE, AND PROFESSIONALISM

Kane takes a more minimal view of integrity in chapter 6 when describing its place in science. The integrity demanded of practitioners by science’s professional ethic is an instrumental matter tied to the conditions required to generate reliable knowledge claims. By contrast, Kane argues, the most important matters of conscience that arise in science concern its products: the knowledge it produces and the uses, good and bad, to which this knowledge may be put. The two issues can be related, however, via the question of trust. Scientific integrity concerns scientists’ trust in one another and the public’s trust in apparently authoritative scientific opinion, as well as the mistrust of lay interference and a faltering of public trust in science’s freedom to pursue whatever knowledge it chooses. Kane looks at both what the public might learn from a greater understanding of scientific practice and what science as an enterprise might gain from inviting increased public appraisal of its processes and products. With respect to the public, Kane argues that it is beneficial for the pronouncements of scientific experts to be met with less deference and a better-informed public skepticism. With respect to science, a better-informed appraisal by outsiders should enhance the wide public trust on which the scientific project depends.

Jones takes issue with this argument in chapter 7. Given the need for a cognitive division of labor, she contends that we must often trust experts and defer to their cognitive authority. The real question, in her view, is how to be responsible in our deference to experts. Drawing on a discussion of the concept of autonomy in moral and political contexts, she maintains that when properly understood, cognitive autonomy is compatible with such deference, provided that the experts meet certain burdens of persuasion. In most instances, Jones believes, we should approach expert opinion from a default position of distrust. This consists of a rebuttable presumption against accepting expert opinion, about which it is wise to be especially vigilant in four circumstances: when the stakes are high, when we have a past history of too ready a trust, when science as an institution fails to create a confluence of motives for trustworthiness, and when the subject matter of the testimony invites ideological distortion. In such circumstances, defeating the presumption against acceptance should follow a thorough investigation into the trustworthiness of the alleged expert. Deference to experts, whether arrived at following the rebuttal of default distrust or from a default position of trust or neutrality (when the burden-shifting circumstances are absent) can be compatible with cognitive autonomy, provided that we refrain from seeing autonomy as requiring independence. Jones encourages us thus to refrain and instead to understand autonomy as involving a reflective endorsement of our cognitive dependencies.

In chapter 8, Winston takes up the issue of whether violations of professional integrity might in certain circumstances be justifiable. He does this by using an actual instance of moral opportunism, which leads to an exploration of principled reasons that might be adduced in its defense. Winston’s case concerns a lawyer in the solicitor general’s office who was able to exploit his access to a Supreme Court justice so as to have a decisive influence on the decision in Brown v. Board of Education. Following a description of the solicitor general’s office and its operative norms, Winston examines the decisive interactions between the lawyer and the justice, and the lawyer’s willful violation of the norm known as the ex parte rule. By investigating the considerations that should figure in any moral assessment of the violation, Winston reveals the issue to be considerably more complex than our unexamined intuitions might lead us to suppose.

III. INTEGRITY AND CONSCIENCE IN THE LAW

At least since Ronald Dworkin singled out integrity as the sine qua non of a principled jurisprudence in Law’s Empire,¹ integrity’s role in legitimating a legal order has been extensively debated. Attended to less is the role of conscience. Dyzenhaus argues in chapter 9 that in a secular and pluralistic age, the scope for exercising conscience in legal interpretation is essential to the law’s legitimacy. Dyzenhaus distinguishes liberal perspectives on this matter—which tend to focus on the conscience of judges—from a democratic one that he advocates, in which the emphasis is on the conscience of the citizen. Drawing on Jürgen Habermas’s arguments against positivism and in support of democracy, Dyzenhaus makes the case that the Habermasian institutional account can be detached from its contentious philosophical moorings and usefully modified in the service of a democratic account of law’s legitimacy.

Whereas Dyzenhaus is skeptical of trusting the law’s indeterminacies to the moralities of individual judges, Rogers Smith goes further and indicts U.S. lawyers and especially legal commentators for their propensity to attempt forced marriages between the U.S. Constitution’s meaning and the results they seek to achieve through its application. In chapter 10, Smith contends that this promotes a state of affairs in which constitutional arguments become unnecessarily deceptive and confusing. Too often, interpreters feel impelled to argue simultaneously that their preferred outcomes reflect the original intent of the Constitution’s framers and that they constitute the best overall outcome. Almost inevitably, he argues, this interpretation creates pressure to conflate what is constitutional with what is good. Smith identifies the sources and costs of sitting judges’ failure to distinguish constitutionality from beneficiality, and he illustrates how contemporary scholars themselves have evaded the distinction between the good and the constitutional. Smith also puts forward the majority opinion in Brown v. Board of Education—specifically, the claim that racially “separate but equal” schools are inherently unconstitutional—as an example of a ruling that produced good results despite resting on what is at best an exceedingly shaky constitutional foundation. In Smith’s view, because constitutionalism is an instrument of, rather than a synonym for, good government, he contends that decisions that conflict with the original intent behind the Constitution (and so undermine some of the goods that constitutionalism promotes) may nonetheless produce the best result. Given this fact and the overwhelming public support for the substance of the Brown decision, Smith concludes that scholars will not be able to describe accurately the function of the judiciary until they acknowledge that jurists serve not merely as arbiters of original intent but also as executors of Locke’s “prerogative power.”

In chapter 11, in response to this argument, Greenawalt contends that although Smith’s basic distinction between constitutionality and goodness is sound, his reduction of the criteria for constitutional rulings to a single dichotomy is misleading. Greenawalt supplements Smith’s account with observations concerning the relationship between truth and scholarship, the stages at which constitutionality may conflict with goodness, the diminished value of constitutionality under consequentialist (as distinct from deontological) value systems, and the pervasiveness of problems of self-consciousness and candor in the American legal system. He observes that Smith adopts, without defense, a narrow standard for original intent that excludes the framers’ own view of the principles underlying the constitutional provisions. Greenawalt also chastises Smith for his misstatement of the role of accumulated case law in constitutional discourse. Smith, he notes, appears to suggest that when judges adhere to precedent, they are basing their ruling on a consideration of the best outcome rather than the constitutional soundness of a given position. But since Smith believes that continuity is one of the chief virtues of constitutionality, then adherence to precedent must be an indispensable component of any inquiry into the constitutionality of a measure (if constitutionalism is to produce the benefits that Smith associates with it). Greenawalt concludes that although valuable, the dichotomy between goodness and constitutionality is an insufficient guide to the broad range of factors that influence judges and scholars.

In chapter 12, Wells offers a different critique of Smith’s emphasis on a sharp distinction between goodness and constitutionality, by advancing three related claims. First, she points out that an insistence on a strict distinction between goodness and constitutionality is subject to many of the same objections that can be advanced against the version of originalism that Smith endorses. Second, she argues that Smith’s distinction is overly simple in that it obscures an important aspect of constitutional decision making. Third, she contends that Smith’s argument about integrity is circular. That is, on one hand, Smith argues that we should distinguish goodness from constitutionality on the grounds it promotes judicial integrity. On the other hand, he employs a notion of judicial integrity that takes for granted a particular theory about what judges should do when deciding constitutional cases. As a consequence, Wells concludes that Smith’s notion of judicial integrity presupposes a particular jurisprudence and that it cannot be used as a separate endorsement of this same conclusion.

In chapter 13, Michael McConnell argues that Smith is mistaken in attempting to trace deceptiveness in constitutional discourse to the mixture of positive and normative arguments. In McConnell’s view, the problem is, instead, the enduring lack of agreement across ideological lines concerning the norms of legitimacy for constitutional interpretation. The result is an asymmetrical, and therefore unstable, system in which one side is constrained by what Smith describes as “constitutionality” and the other is not. This state of affairs is fueled, in McConnell’s view, by the myth that Smith perpetuates: that Brown v. Board of Education is historically insupportable. McConnell thinks that it is time to reconsider this myth and that even in this instance, goodness can be reconciled with constitutionality.

In the last chapter, from a different perspective, Graber takes up the significance—for constitutional interpretation—of pervasive disagreements about good and evil. He argues that recent explorations of the gap between constitutionality and the requirements of morality often fail to appreciate the profundity of moral disagreements. Through either the examples they choose (slavery or Jim Crow segregation) or their reference to “stupidities,” modern constitutional critics too often assume that intelligent people agree on just what these contemporary constitutional imperfections are. In practice, however, alleged constitutional stupidities or evils exist only when a substantial part of the population regards these practices as wise or good. Given the disagreements that exist in any heterogeneous society on what policies are deemed desirable, Graber contends that a constitutional union can be maintained only if most citizens are sometimes willing to sacrifice both integrity and conscience to accommodate persons whose vision of the best society is different from theirs. Constitutional commentators and citizens would do better to recognize this state of affairs more often than they now do. One way to advance toward this goal would be to conceptualize and respond to possible gaps between constitutional law and political morality by exploring examples that highlight the mediating role of constitutions and constitutional adjudication in societies that lack consensus on broad political principles. Although to some people this “institutional” solution may seem like an unsatisfying abdication of jurisprudential aspiration, Graber is surely persuasive that more ambitious ventures have not been, to date, fully successful.

NOTES

1. Ronald Dworkin. Law’s Empire (Cambridge, Mass.: Harvard University Press, 1986).

PART I

CONCEPTUAL ISSUES

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FOUR CONCEPTIONS OF CONSCIENCE

THOMAS E. HILL JR.

Controversies about the nature, reliability, and importance of conscience have a long history. Diverse opinions reflect not only differences in theological beliefs and political context but also deep divisions in moral theory. Some scholars hold that relying on conscience is a sure path to morally correct, or at least blameless, conduct and that the imperative to follow one’s conscience is unconditional, taking precedence over all other authorities. Making moral decisions conscientiously and sticking by them are widely thought to be essential ingredients of in...