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General Theory of Norms$

Hans Kelsen

Print publication date: 1991

Print ISBN-13: 9780198252177

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198252177.001.0001

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The Principle of Autonomy—Conscience as Moral Authority

The Principle of Autonomy—Conscience as Moral Authority

Chapter:
(p.83) 19 The Principle of Autonomy—Conscience as Moral Authority
Source:
General Theory of Norms
Author(s):

Hans Kelsen

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198252177.003.0019

Abstract and Keywords

The theory that conscience is the moral legislator fails for the basic reason that conscience — either as feeling or as knowledge — is unable to posit norms, since norms prescribing how we ought to behave can only be the meaning of acts of will. But even if conscience is interpreted as a phenomenon of the will, it follows from the fact that the moral legislator for each subject is simply his own conscience that no one could judge the behaviour of others as morally good or bad. The moral evaluation of other people's behaviour presupposes that the members of a given social community react morally in generally the same way to human behaviour — their own or that of others.

Keywords:   principle of autonomy, conscience, moral authority, acts of will, social community, human behaviour

Since the moral or legal order valid within a community is never created by the individual subject for whom this order is valid but arises by way of custom or—in the case of a moral order—is posited by leading personalities such as Moses, Jesus, or Muhammad or—in the case of law—is posited by way of legislation, we can speak of autonomy—as was indicated previously (cf. above, ch. 12, last paragraph)—only to the extent that a subject must recognize a moral or legal norm addressed to him from outside and not posited by himself, in order for it to be valid for him. The moral or legal order to be recognized must already have been created in the way indicated and be valid for other people, and consequently be heteronomous relative to the subject recognizing the order. It is only the norm of a heteronomous order which can be recognized, for a norm does not have to be recognized by a subject who has just created it. Recognition is an act of will addressed to the behaviour of the subject recognizing the norm, not in the sense that he wills to behave as prescribed by the norm which is already created and valid for others—i.e. he wills to comply with the norm—but in the sense that he is to behave as prescribed by the norm. If the norm ‘Love your enemies’ posited by Jesus is valid, then I recognize this norm, not by resolving to love my enemies (i.e. to comply with the norm), but by an act of will whose meaning is ‘You, my alter ego, are to love your enemies.’ We should recall the difference mentioned earlier (cf. above, ch. 9. I) between willing to behave in a certain way and willing that a person—oneself or another person—is to behave in a certain way, in other words, positing a norm prescribing how another person is to behave or how he himself is to behave. The meaning of the act of will recognizing the (already existing) norm is a norm posited by the recognizing subject and addressed to himself. By recognizing the norm of a heteronomous moral or legal order, a subject posits a norm prescribing to himself the same behaviour as the norm he recognizes. This is what is usually called ‘self-obligation’. If we assume that the norm of a heteronomous normative order is valid for a norm-addressee only if he recognizes it, then the condition for the validity of the norm is a double act of norm-positing: the positing of the norm by the external authority and the positing of the norm recognizing the first norm by the norm-addressee. Autonomy exists only with respect to the positing by (p.84) the norm-addressee; but the positing by the norm-addressee presupposes the positing by the external authority. Autonomy is only a secondary element within the context of a heteronomous moral or legal order ( NOTE 68). Inasmuch as a moral or legal norm can be applied to an individual—i.e. the individual is praised or criticized, or judgment is executed against him or punishment is directed against him—even if he does not recognize the norm being applied, the moral or legal order can be said to be—relative to this individual—not only heteronomous, but also objectively valid (cf. above, ch. 13).

Even though the tendency is not completely worked out in his ethics, Kant's doctrine of practical reason as moral legislator tends to abolish the professed duality of Ought and Is (the logical transcendence of Ought relative to Is) because of the immanence of Ought in Is (the immanence in human reason of the norms prescribing human behaviour). Thus the answer to the question ‘What ought I to do?’ is to be found within oneself. In this respect, the doctrine of practical reason is similar to the doctrine that conscience is the source of morality. Kant himself says that conscience is to be found in man's practical reason.1

The word ‘conscience’ can refer to quite different mental phenomena. In the first place, to certain emotional reactions to one's own behaviour; these reactions are called a ‘bad’ conscience or a ‘good’ conscience. A ‘bad’ conscience expresses itself in the feelings of shame or repentance experienced when a person is aware of morally bad behaviour, that is, of having actually performed or having intended to perform behaviour which he ought not to have performed or even intended. We then speak of ‘pangs of conscience’. A ‘good’ conscience expresses itself in the feeling of satisfaction experienced when a person is aware of having actually performed morally good behaviour, that is, behaviour he ought to have performed.

But the term ‘conscience’—understood as ‘con-science’—is also used to refer to a kind of knowledge: the knowledge of the being-good or the being-bad, of the being-obligatory or not-being-obligatory, of one's own behaviour, which is expressed in a value-judgment about this behaviour and which arouses the feeling called a ‘good’ conscience or a ‘bad’ conscience. But the theory that conscience is the source of morality assumes that it is feeling which is primary, that is, that behaviour is morally bad because we react to it (when it is our own behaviour) with feelings of shame or repentance, and that our behaviour is morally good because we react to it with the feeling of satisfaction, and not vice versa. It is this feeling, our conscience in the sense of a moral feeling, the ‘voice of conscience’ in us, which tells us, i.e. which prescribes, how we ought (p.85) to behave; it is in this conscience that moral norms originate. Consequently there is no need for norms impinging on us from without, posited by some authority other than ourselves, since moral norms come from within us. We find them by examining our own conscience. The theory that conscience is the moral legislator tries to provide a basis for the autonomy of morality, just as Kant's theory of practical reason does.

The theory that conscience is the moral legislator fails for the basic reason that conscience—either as feeling or as knowledge—is unable to posit norms, since norms prescribing how we ought to behave can only be the meaning of acts of will. But even if we interpret conscience as a phenomenon of the will, it follows from the fact that the moral legislator for each subject is simply his own conscience that no one could judge the behaviour of others as morally good or bad. For from the fact that my conscience prescribes a certain behaviour to me, it does not follow that another person's conscience prescribes the same behaviour to him. But the moral evaluation of other people's behaviour is an essential—if not the most essential—function empowered by a moral order, and the most important condition of its effectiveness. The moral evaluation of other people's behaviour presupposes that the members of a given social community react morally in generally the same way to human behaviour—their own or that of others. But from the point of view of a consistent autonomous morality of conscience, there is no reason to assume that the consciences of all people—or even of all members of one given social community—react in the same way. If that is in fact what happens, if the members of a social community do agree on the whole in their (moral) evaluation of human behaviour—not only their own, but also that of others—then this can only be because they live under the same moral order and as a result of education and imitation this moral order penetrates their feeling and thinking and therefore expresses itself as their conscience. How this moral order comes to exist, whether through custom—as in the case of customary law—or by the acts of the founder of a religion—such as Moses, Jesus, or Muhammad—is irrelevant here. Consequently the theory that conscience is the moral legislator cannot dispense with norms impinging on men from without, and the autonomy of morality in the sense of an immanence of norms in the mental reality of human beings—the denial of the transcendence of norms and so the denial of the duality of Ought and Is—is untenable. In fact it is given up by all those defenders of the theory of the morality of conscience who interpret the voice of conscience as the voice of God in us.2

Notes:

(Note 68) The recognition of a norm must be distinguished from the cognition of a norm. The cognition of a norm is an act of thought whose meaning is a descriptive statement. The recognition of a norm is an act of will whose meaning is a norm. A characteristic (p.316) example of the confusion of the two concepts is to be found in Sigwart's account of the task of logic (1895: i. 4 ff.). He says that the goal of our thought is not merely ‘knowledge of what is’:

The purposes towards which thought is directed are far from being exhausted by this one interest—the desire for knowledge. It is found to be just as active in a direction which cannot be included in the idea of knowledge of that which is. We find ourselves as a matter of fact under the dominion of certain laws according to which we estimate the worth of human deeds, and to which we are willing to submit our wills and actions.

These laws are clearly the norms of morality and of law, or as Sigwart says, ‘the rules of propriety, of morality [Sitte], of justice and of duty’. ‘It matters not for our present investigations whence these laws have their origin, nor by what motive we are led to recognise them as valid for us. Enough that we are constantly endeavouring to observe the rules of propriety, of morality, of justice and of duty, and are incessantly called upon to decide what we ought to do and how we ought to act.’ Thus the ‘thinking’ which is directed to norms, the cognition which gives us the answer to the question as to how we ought to act, consists in our recognizing norms as valid for us.

No material result informs us whether or not our Thought has attained its end, by proving that our calculations accorded with the nature of things. Even the result at which we aim consists solely in thoughts, and the actual results also are the thoughts which accuse or absolve us, the recognition or non-recognition by others and by ourselves of the conformity of the particular action with the general rule.

If the purpose of thinking directed to norms consists in the ‘thoughts’ which accuse or absolve, in the recognition or non-recognition of the conformity of the particular action with norms, then thinking directed to these norms—the cognition of these norms—consists in our recognizing them as valid for us. Since Sigwart fails to distinguish between the cognition and the recognition of norms, he assumes there is a ‘Thought which guides our action’. This thought which guides our action and which is both cognition and recognition (and therefore will) is clearly the self-contradictory concept of practical reason we find in Kant, whose philosophy had a decisive influence on Sigwart.

(1) Metaphysics of Morals (vi. 400): ‘Conscience is practical reason holding man's duty before him, wherever a law is applicable, with a view to either his acquittal or his condemnation.’ On this point, a typical example is Messer (1925: 81 ff.), who calls conscience the ‘decisive tribunal’ for norms of morality.

(2) Russell (1960: 224): ‘One of the ways in which the need of appealing to external rules of conduct has been avoided has been the belief in “conscience”, which has been especially important in Protestant ethics. It has been supposed that God reveals to each human heart what is right and what is wrong, so that in order to avoid sin, we have only to listen to the inner voice. There are, however, two difficulties in this theory: first, that conscience says different things to different people; secondly, that the study of the unconscious has given us an understanding of the mundane causes of conscientious feelings.’