40 Pages Posted: 10 Nov 2007
Date Written: 2007
The law has tended to deal with conscience at points of direct conflict between the individual and the state, but rights of conscience have also been invoked in a recent series of high-profile disputes between the individual and non-state associations. This trend is driven by a generally laudable commitment to minimize external interference with an individual's moral autonomy, but we must remember that the vibrancy of conscience depends in part on the vitality of the associations against which the right of conscience is currently being invoked.
Missing from our conversation about conscience is a robust articulation of its relational dimension - i.e., the notion that the dictates of conscience are defined, articulated, and lived out in relationship with others. Conscience is shaped externally; our moral convictions have sources, and our sense of self comes into relief through interaction with others. Conscience, by its very nature, directs our gaze outward, to sources of formation, to communities of discernment, and to venues for expression. When the state closes down avenues by which persons live out their core beliefs - and admittedly, some avenues must be closed if peaceful co-existence is to be possible - there is a cost to the continued vitality of conscience. It is not just a vague allegiance to moral pluralism that should underlie our legal system's reluctance to restrict the independence of the myriad associations that make up the vast space between person and state; it is a commitment to freedom of conscience. Put simply, if our society is to facilitate an authentic and robust liberty of conscience, we cannot reflexively favor individual autonomy against group authority; we must also work to cultivate the spaces in which individuals come together to live out the shared dictates of conscience.
This article is part of a bigger project outlining how the law can better support this relational dimension of conscience in a variety of areas. Here I explore the broad implications that conscience's relational dimension has for our understanding of corporations and their role in society. The exploration has three components: first, connecting liberty of conscience with the common good, explaining why institutional autonomy is an essential component of both; second, examining whether for-profit corporations may properly be considered venues for the communal expression and implementation of conscience, looking specifically at the capacity of corporations such as Wal-Mart to carve out moral identities as marketplace actors that diverge from the norms embraced by the broader society; and third, analyzing the tension between a corporation's moral identity and the exercise of conscience by dissenting community members, particularly employees.
Keywords: corporations, corporate law, conscience and law, morality and law, associations, intermediary associations, corporations and morality
Suggested Citation: Suggested Citation
Vischer, Robert K., The Morally Distinct Corporation: Reclaiming the Relational Dimension of Conscience (2007). U of St. Thomas Legal Studies Research Paper No. 07-37. Available at SSRN: https://ssrn.com/abstract=1028881 or http://dx.doi.org/10.2139/ssrn.1028881