Monday, May 30, 2022

The Tribunal of Conscience

 It has been common to talk about conscience in judicial terms for many centuries now. It is spoken of as a court; it summons us to the bar; it judges our case and convicts or absolves us as guilty or innocent. Such is the way we commonly speak of it, and people will go well out of their way to talk about it in these terms. Clearly, something about this way of talking seems to fit very well with our actual experience of conscience.

A natural idea would be that all this tribunal talk is a loose metaphor. Conscience has certain internal features, and, looking around, we happen to find courts in the external world, and our experience with such courts, formed for entirely different reasons, reminds us vaguely of our experience of conscientious struggle, thus giving warrant to the metaphor. But I think this is wrong. In fact, the reverse is true. The reason why we talk about conscience in judicial terms is that judicial terms get their meaning from conscience. In calling conscience a tribunal, we are not applying court terms to conscience in a metaphor; we are recognizing that what is done in a court is an extension of, and an imitation of, conscience. We think of courts as considering guilt and innocence because this is what conscience does; because acts of conscience are judgments, we think of courts as judging. We have a judiciary because human life is conscientious, and conscience is judicial.

This is much less paradoxical than it might seem, because in fact courts in history have often been seen as expressing conscience. This is obscured in modern times because when we think of tribunals, we tend to think of courts of law. Modern courts of law have many obvious affinities with conscience, but for a strict court of law they are often rather abstract. However, there are kinds of courts, and some of them are such that the analogy is not only very strong, but they themselves were explicitly conceived of in terms of conscience. This is very obviously the case with courts of equity, like Chancery. One of the old names for an equity court is 'court of conscience', and judges in equity courts were charged with deciding cases in a manner appropriate to conscience. This conscience was not supposed to be the private conscience of the judge but a sort of public conscience, that is to say, the shared conscience of reasonable men, or else the conscience of the King qua the one who is supposed to care for all of his subjects (the two ways of looking at it were not generally distinguished very precisely). Chancery existed in part because there were cases in which direct application of the law without anything else would give results that would violate public conscience, so remedy was needed for this defect, but also in part because there were many cases that were important, and indeed, important for law, where conscientious action was not negotiable. The obvious case, always associated with Chancery, was the cases of trusts. If I entrust you with something, all honorable people of conscience would act in certain ways with regard to it, and if you failed to act in this way, even if you did not break the letter of the law, you would still have violated trust. So Chancery, as an expression of public conscience would serve as a guideline for your own action and would supply any defects arising from your lack of honorable conscience.* 

Nor was this conception of the acts of courts as acts of public conscience confined to Chancery; Chancery was simply the highest of court of conscience. And while the English development of this idea was very explicit, you find hints of at least broadly similar conceptions in other contexts. Courts arise because people appeal to the consciences of Kings to judge cases, and as this becomes too complicated for a single person to handle, the same structure, the structure of conscience, becomes formalized in external procedures of various kinds so that people who are not the King can serve the same function of being the determinative conscience for society.

This has not gone completely unnoticed; Kant has some discussions of conscience as a tribunal, and it is clear that he takes this to be more than a metaphor. Kant's argument is that in the experience of conscience we find ourselves being in a sense two people -- obviously not two natural people, but two moral persons. Conscience is an experience of multiple perspectives: we are accuser and advocate and judge, all simultaneously -- but distinctly. In conscience, we think of ourselves socially, splitting our point of view, in order to judge our own maxims, and our experience of conscience is of an inner court.** And I think Kant is right, as far as this goes.

We see this further in the fact that all of the problems that can arise with conscience, and that can be pinpointed without expressing them in judicial problems, are nonetheless also problems that you can find in a judiciary. There are several kinds of erroneous conscience: the scrupulous conscience (overinclined to think things are wrong or bad), the perplexed conscience (finding sin in both omission and performance of an action), the lax conscience (overinclined to think things are innocent, or else that bad things are not very bad), the trivial conscience (treating little matters as if they were great matters). All of these are ways courts can go wrong, as well, and in fact, you can identify features in our court systems that clearly are attempts to reduce the chance that our court will be scrupulous, or perplexed, or lax, or trivial in its judgments. We can all recognize that the hanging judge in some way violates the purpose of a court; and we can recognize it as such because the scrupulous conscience in much the same way violates the ends of conscience. But we also have the same deontic paradox with courts that we have with conscience, namely that they have authority even when wrong and in need of correction, which can create situations of conflicting obligations.


* There is a fascinating discussion of these things in Dennis R. Klinck's Conscience, Equity and the Court of Chancery in Early Modern England, Routledge (New York: 2010).

** Allen Wood has a nice discussion of this in his article, "Kant on Conscience".

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