If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it matters? This essay addresses two questions. The first is discussed briefly: what is “conscience”? What do we have in mind when we say that someone acted from “conscience”? A second question receives more extended discussion: granted its importance to the individuals who assert it, still, why should “conscience” deserve special respect or accommodation from society, or from the state? That question forces us to consider the metaethical presuppositions of claims of conscience. The discussion suggests that claims to conscience may be defensible only on certain somewhat rarified moral and metaethical assumptions. The discussion further suggests that shifts in such assumptions have transformed the meaning of claims to “freedom of conscience,” so that such claims typically now mean almost the opposite of what they meant when asserted by early champions of conscience such as Thomas More, Roger Williams, and John Locke.
Constitutional Law | Ethics and Professional Responsibility | Jurisprudence | Law | Law and Society | Legal History, Theory and Process | Legal Profession | Public Law and Legal Theory
Date of this Version
Steven D. Smith, "The Tenuous Case for Conscience" (September 2004). University of San Diego Public Law and Legal Theory Research Paper Series. Working Paper 26.
Constitutional Law Commons, Ethics and Professional Responsibility Commons, Jurisprudence Commons, Law and Society Commons, Legal History, Theory and Process Commons, Legal Profession Commons, Public Law and Legal Theory Commons