Responsibility Dilemmas
4.3. Moral responsibility in legal and judical ethics:
4.3.2. First dilemma: responsibility in the positivistic and communicative concept of lawand communicative concept of law
The first of the dilemmas: is the lawyer’s responsibility reduced to abiding by the rule of law, or should extra-textual factors also be taken into consideration, may be presented in reference to ethical-professional and legal-philosophical discourse.
In ethical-professional discourse, the outlined dilemma may be presented as follows: do subjective decision or rules lie at the core of an issue that is the subject of moral evaluation?56 The former resolution is summarised as “the acts over policies” strategy, the latter as “policies over acts.”57 Adopting the first approach, the interpreter tries to take action determined to a great extent by personal morality. However, the choice of this strategy is full of doubts. The concept of the professional role sets certain expectations rationalised by the idea of trust in legal professions. One of the expectations is not relying primarily on one’s own feelings in performing professional activities. The situation is different in the case of “policies over acts.” The choice of this approach assumes that the fundamental value is to abide by the rules of the institution of which one is a member. An argument for accepting the second mentioned approach is widely known as the attitude based on the primacy: “policies over acts” leads to greater predictability of social institutions’ activities. The price for accepting this is the brushing aside (a more radical thesis) or marginalisation (moderate thesis) of the personal dimension, of the moral aspect based on the assessment of the deed. According to Allan C. Hutchinson, the aim of giving a code of ethics a form that will fully disburden the interpreter may lead to marginalisation of the subjective aspect, which exposes the issues of individual ethical and aesthetic evaluative judgments in professional activity.58 The idea of seeking a perspective
56 Allan C. Hutchinson, Legal Ethics and Professional Responsibility (Toronto: Irwin Law Inc., 2006), pp. 49–50.
57 Luban, Lawyers and Justice. An Ethical Study, p. 118.
58 Hutchinson, Legal Ethics and Professional Responsibility, p. 51.
that would include the individual-institutional field is illustrated by Hutchinson in the following statement:
“the challenge is neither to abandon a sense of personal morality and defer all ethical responsibility to the unique role and status of the legal professional nor to adhere to the dictates of one’s personal conscience and ignore the special responsibilities that attach to being a professional. It is a matter of creating a balance between the two so it is possible to bring together the professional and the personal in a legal ethics […]”.59
According to Hutchinson, this dilemma refers at its foundations to the dispute about law between the positivist and communicative visions.60 Marek Zirk-Sadowski locates an interesting problem in this perspective. The author of “Participation of Lawyers in Culture,” when presenting the dispute about the lawyer’s role in culture, states:
“This dispute manifests mainly in various ways of assessing the lawyer’s responsibility for the content of the applied law. In popular feeling, the quality of law that is made is not good, but in social opinion the expectancy of greater activity of courts prevails […].The postulate of changing lawyers’
attitude to law in the process of its application and demands of their clear taking the responsibility for its content ‘collides’ with radical positivism, which orders lawyers to adopt mainly cognitive attitude towards law”.61
From Zirk-Sadowski’s statement one may draw the idea that the source of the discrepancy may be sought in the way of understanding responsibility for law.
Andrzej Bator strikes a similar chord as he derives the grounds of the presented choice between visions of the lawyer’s responsibility in the dispute between the positivist and communicative concepts.62
According to Bator, the positivist concept assumes a monological view of lawyers’ participation in creating the image of law. In this view, responsibility for law is built on a factor from beyond the subject, compliance with which
59 Ibidem, p. 51.
60 Allan C. Hutchinson, “A Loss of Faith: Law, Justice and Legal Ethics, Book Review of Lawyers and Fidelity to Law by W. Bradley Wendel,” International Journal of Legal Profession (2014), p. 5. See also: W. Bradley Wendel, Ethics and Law. An Introduction (Cambridge: Cambridge University Press, 2014), pp. 62 et seq.
61 Marek Zirk-Sadowski, “Uczestniczenie prawników w kulturze,” Państwo i Prawo 2002, No. 9, p. 6, Marek Zirk-Sadowski, “Wykładnia prawa a wspólnoty sędziów,” in W poszukiwaniu dobra wspólnego. Księga jubileuszowa Profesora Macieja Zielińskiego, eds. Agnieszka Choduń, Stanisław Czepita (Szczecin: Wydawnictwo Naukowe Uniwersytetu Szczecińskiego, 2010), p. 78.
62 Andrzej Bator, “Wspólnota kulturowa jako element integracji prawa,” in Z zagadnień teorii i filozofii prawa. W poszukiwaniu podstaw prawa, ed. Adam Sulikowski (Wrocław: Uniwersytet Wrocławski, 2006), p. 14.
gives the interpreter the feeling of confidence in their action. This external authority disburdens the lawyer from settling moral and cognitive dilemmas, for participation in a community is about following and abiding by the existing rules offered by external authority.
In turn, to the communicative concept of law the metaphor of law as conversation is closer. In this light, the lawyer’s moral responsibility is founded on the concept of the ideal communication community, within which there is rationality in legal discourse. In the presumed picture, we leave the monologic function of language, whose role is to indicate the way of action within an institution for the sake of the dialogic perspective, for the notion of the ideal communication community reveals the image of law as a space in which a discourse is held. Therefore, the communicative image of the lawyer’s participation in culture assumes a departure from monological thinking for the sake of the dialogical, in which participation means dialogue, conversation.
In this view, legal culture takes on both the regulative and symbolic functions.
For, on one hand, it sets via the existing institutional structure the mode of participation in the institutionalised practice. It does it by defining discourse rules, and on the other it stresses the moment law is made with the use of discourse rules. A jurist has a double role in this view, as both recipient of and kind of creator of law. When making law, the jurist is equipped with a kind of safety net providing a sense of confidence of action. This role is served by the concept of communication community, built on the universalist statements, which illustrate the concept of discourse rules creating criteria of action correctness within legal discourse.
The difference between positivist and non-positivist (communicative) visions may also be presented in the light of other three questions:63
1) What is the source of law? In the positivist interpretation, the answer is legal rules in legal texts; in the non-positivist, it encompasses both textual and extra-textual rules,
2) How can legal norms lose their binding power? In the positivist interpretation, this occurs by being excluded by other legal norms or by the use of conflic-tual rules; from the non-positivist perspective, a legal norm may also lose its binding character as a result of conflict with extra-textual rules,
3) What are the limits of duty of submission to law? From the positivist per-spective, the form of submission is absolute and unconditioned, while in the non-positivist view dissent is possible by creating room for defiance, which may be social, institutional or individual.
63 Lech Morawski, Podstawy filozofii prawa (Toruń: Dom Organizatora, 2014), pp. 311 et seq.
It is also worth remarking here that treating law as a homogenous normative system was undermined as early as by Roman lawyers.64 One of the legal maxims of that time, which highlighted the complexity of the concept of law, and is still cited, was summum ius summa iniuria.65 The idea that law may turn into lawlessness assumes a discrepancy between the strict right of law (stricti iuris) and the sense of justice (ius aequitas). Acknowledging stricti iuris as summa iniuria is possible only if we assume that law is not a homogeneous normative system.
The division within the concept of law for positive law and equity law resulted in the dynamic development of praetorian law. The return to the discussion of the concept of law occurred at the beginning of the 20th century, and may be connected with the discrepancy, increasing in 19th century codifications, between stricti iuris and ius aequitas. This inconsistency was a plank in representatives of the German Historical School’s construct of the “stratification of law,” whose goal was to terminate this distinction and in consequence the conflict between positive and equity law.
According to this stratification, the concept law comprises three layers:
a) social law (custom law), b) state law (political law), and c) lawyers’ law (now called legal culture).66
Custom law, as the original layer of law, is society-made. In this sense, when speaking of law, we mean the moral norms preserved in a given society, for example respect for human dignity. The consequence of accepting public morality as a factor influencing legal decisions is the recognisability of law understood from the perspective of a citizen.67 It is changed in the second lawyer of law, described as state law (political law). In this sense, law is a product of a legislating activity. Here, law is understood as a legal text. This factor is an important point of reference in a lawyer’s interpretational activity. The third and final stratum is lawyers’ law. Its origin is a derivative of the formation of the legal profession as a professional group. Within lawyers’ law there are two spheres of activity. The first directly concerns the interpretation of textual law, and the second is related to working out a way of operation within the community
64 Franciszek Longschamps de Bẻrier, Nadużycie prawa w świetle rzymskiego prawa prywatnego (Wrocław: Wydawnictwo Uniwersytetu Wrocławskiego, 2004), pp. 8–9.
65 See: Marcin Matczak, Summa iniuria. O błędzie formalizmu w stosowaniu prawa (Warszawa:
Scholar, 2007).
66 Eugen Ehrlich, Grundlegung der Sozologie des Rechts, Vierte Auflage, (Berlin: Duncker Humbold, 1989), pp. 8 et seq. In Polish literature see: Kazimierz Opałek, Jerzy Wróblewski, “Niemiecka szkoła historyczna w teorii prawa,” Przegląd Nauk Historycznych i Społecznych 1954, vol. V, pp. 279 et seq.;
Artur Kozak, “Kryzys podstawności prawa,” in System prawny a porządek prawny, eds. Olgierd Bogucki, Stanisław Czepita (Szczecin: Wydawnictwo Naukowe Uniwersytetu Szczecińskiego, 2008).
67 This is pointed out by Artur Kozak, “Kryzys podstawności prawa,” p. 37.
of lawyers.68 In the above sense, the scope of legal culture determines the harmonisation of a legal text’s interpretational techniques, but also the conviction about the necessity to work out institutional morality or provide a fundamental axiological framework.
On one hand, legal culture in the above sense sets the way of operation within an institution. Thanks to this, even if it does not eliminate incorrect practices, then by acknowledging and describing them it may cause them to be regarded as deviations from accepted models. On the other hand, legal culture cognitively and axiologically disburdens the interpreter by providing them with prompts and examples of correct action.