The Promise and Perils of Conscience

I. INTRODUCTION My assignment is to comment on a paper by Professor Rodney Smith1 about conscience, and also to try to tie this specific subject into the conference's overall theme: LDS Perspectives on Law. At first glance, this seems not to be an easy assignment. Oliver Cowdery and section 134 of the Doctrine & Covenants2 made some important statements about conscience, but those statements also seem to be quite general-almost platitudinous, we might think-so they do not in any explicit way address the more specific questions about conscience that lawyers and courts confront today.3 In addition, I understand Professor Smith's conclusion to be that, except in some details, Oliver Cowdery's views on conscience were approximately the same as those that James Madison had expressed half a century earlier,4 and, we might add, that were common in Protestant America. Indeed, a quotation from Joseph Fielding Smith that Professor Smith repeats suggests that this may have been the whole point of section 134, that is, to assure fellow citizens that members of the Church of Jesus Christ of Latter-day Saints were not idiosyncratic, or at least not subversive, but rather held essentially the same views on conscience, religious freedom, and church-state separation that most other Americans held.5 How then can these early Latter-day Saints' views on conscience provide a distinctive LDS perspective on law? I want to offer, in summary form, two responses to that question. First, a commitment to conscience imports a conception of the person that is crucial but sorely missing in today's legal discourse. Second, LDS experience gives Latter-day Saints a distinctive perspective from which to appreciate the dangers of conscience. The first point, discussed in Part II of this Comment, suggests the contribution of an appreciation of conscience in the unbelieving neighborhoods of the world.6 The second point, discussed in Part III of this Comment, suggests the possibility of an overappreciation of conscience that has sometimes been a hazard in what we might call the believing world. Oliver Cowdery might serve, in part tragically, as a sort of living illustration of both points. II. CONSCIENCE AND THE BELIEVING PERSON To introduce the first point that a commitment to conscience imports a crucial conception of the person that is missing in legal discourse, let me start with an observation that Lon Fuller made several decades ago. Though we may often fail to notice the fact, Fuller explained that legal discourse implicitly contains some conception of the person, some image of what a person is.7 Accepting Fuller's insight, I would say that legal discourse today is pervaded by two principal images of the person: first, the person as interest seeker and second, the person as autonomous agent (or perhaps the person as chooser). We might say that the first kind of person-the person whose essence and purpose is to maximize his interests-is a latter-day descendant of the Tribe of Bentham. The second person, whose essential, defining feature is autonomy, descends from the lineage of the Tribe of Kant. The first image has solid contemporary support in the sciences and social sciences-in evolutionary psychology and economics, for instance-while the second image is entirely orthodox in the liberal political and moral tradition represented today by prominent thinkers such as Raz, Dworkin, and Rawls. In short, both conceptions of the person have impressive credentials, and I readily concede that both conceptions capture important aspects of what it means to be a person: we do have interests and we do make choices. However, both images also have severe limitations. In the area of religious freedom, for instance, the interest-seeking person and the autonomous person seem a bit awkward or out of place. We quickly recognize something incongruous, almost grotesque, in the occasional attempt to understand religion or religious freedom primarily in economic or interest-seeking terms. …