Epistemic dilemma

The final, eighth group of practical problems may be described as epistemic dilemmas. This term is not universally used, hence to distinguish epistemic dilemmas from moral ones, the following starting point should be adopted:

moral dilemmas may be regarded as cognitive problems since the subject is unable to discern reasons which would allow resolution. The cause of this inability is not the lack of proper cognitive skills or a mistake made in specific circumstances, but objective qualities of a  certain situation and the moral conflict related to them. Therefore, moral dilemmas are not only epistemic but

also ontological, which means the dispute about their existence is part of the debate on moral realism. The definition of dilemma presented in this chapter assumes the existence of moral facts and the possibility of their recognition, thanks to which the subject is always able to identify a  given situation as a dilemma, albeit one incapable of being solved. It could certainly be said that, thanks to recognising the impossibility of resolution, they are able to define a  given situation as a  dilemma. Therefore, the order of cognition is opposite to the theoretical order in which the existence of a  dilemma leads to the impossibility of recognising reasons.

The term moral dilemma always refers to situations of cognitive uncertainty about how to act, whereas in cognitive dilemmas the subject is not so much unable to resolve the problem when circumstances are fully recognised, as unable to completely recognise these circumstances. Thus, a different type of uncertainty is involved. In this view, the inability to recognise would mainly concern the possible effects of every option of action, which, due to objective reasons, are unforeseeable. Hence, this uncertainty concerns simple facts and not moral facts. Naturally, this type of uncertainty may also breed great difficulties with making choices and tension within the subject. Therefore, it should not be ignored and it deserves distinction as a separate practical problem (although its nature is not wholly practical as its resolution relies mainly on extra-practical cognition of reality). Despite that, decision-making in uncertainty is clearly a  practical problem. Summing up, an epistemic dilemma is a  situation of inability to make a decision, or difficulty in doing so, due to lack of sufficient knowledge, for example the assessment of effects or unknown circumstances that may become apparent in the future.

1.4. Conclusions

In conclusion to this introduction, it has to be stressed that the notion of dilemma may be treated as central in contemporary meta-ethical debate.

However, much controversy it raises, its meaning is precise. It means such situations of conflict of duties or obligations in which the choice of one of the courses of action necessarily entails the impossibility of some other action, hence bringing about a concrete evil, and simultaneously the choice of one of these courses is necessary. These are not simply situations of subjective difficulties with making a choice, or ethical controversies about legal regulations of certain institutions. The dilemma situation is always related to the problem of necessity of evil done and moral responsibility for it, namely the problem of dirty hands.

The symmetry of courses of action, their equivalence basically precluding any rational choice between them, is also characteristic of dilemmas thus understood. Therefore, moral dilemmas are often called dead end situations.

They are truly dramatic, and encountering them in life usually means real misfortune to a subject. As a rule, one cannot envisage nor avoid them. They are always contextual – depending on external factors one cannot influence. Hence, it can be argued that facing moral dilemmas is a matter of a certain moral luck, which means exemption from moral responsibility for one’s choice.

Discussing moral dilemma thus defined requires, from a  situation to which we refer, a  number of specific conditions to be met. It has significant consequences which will be the subject of further reflection in this book. First, it makes sense to ask whether dilemmas thus understood really exist, that is, whether we really encounter deadlock situations in life, or whether it is always possible to find arguments for a  certain choice. This can be the acceptance of a lesser evil, motivation by special duty in relation to some other subject, or by the requirements of a social role. These reasons may converge, and it seems they very often do in professional ethics, including legal and judicial ethics. Here, the requirements of a professional role or the obligations to client are usually decisive.

The idea that, due to specific professional obligations in legal and judicial ethics, we do not deal with moral dilemmas in the above sense, is the thesis of this book. It derives from combining meta-ethical discussions concerning moral dilemma with the fact that lawyers act in a  specific institutional context and play defined professional roles. Yet this thesis must not be taken as eliminating or simplifying all moral issues arising from institutions. This would mean that a subject entering an institution by, for example, becoming a judge or lawyer, would lose some element of their subjectivity, namely moral authorship and responsibility. But the thesis pertains only to moral dilemmas in a  specific theoretical sense. However, it also reveals that quite a number of other deep and serious moral problems exist in the legal profession. As already mentioned these fall into two categories.

First, there is a group of problems that can be termed meta-dilemmas of legal ethics. They concern matters that are fundamental to reaching decisions on more detailed issues that may arise in the course of a lawyer’s day to day professional life. Meta-dilemmas do not in this way become less real than the latter problems.

Certainly, they are less frequently resolved in a  reflective and deliberative manner, but the choices they present must be made at least implicitly. For they are indispensable for making daily decisions with respect to at least a minimum level of coherence. The kinds of meta-dilemmas in legal ethics will be discussed in further chapters of part one of this book. Second, there are situations which at first glance seem moral dilemmas or are regarded as such, but that do not meet the

criteria of moral dilemmas in the sense derived from meta-ethics. They constitute another type of ethical problem. The book applies the term prima facie dilemmas to the former, and moral dilemmas in the strict sense to the latter. This distinction will be used mainly in the second part of the book.

It should be noticed, that the review of a  number of different situations contained in a second part of this book assumes not merely a cognitive value.

Given situations are not only examples for issues discussed in a first part of the book. They can easily be used in legal education. It applies both to legal ethics courses, as well as particular branches of law lecturing. There are presented in the book in context of specific laws and legal professions. Though, they operate on Polish law, yet it seems, that they can easily be applied to many other jurisdictions belonging to the culture of civil law and analogous institutions as described in this examples can be found in this jurisdictions. Moreover, Many examples seem to have universal character and be employed in common law context. Using those examples for educational purpose is easier, or rather at all possible, due to the distinction between prima facie moral and meta-dilemmas. For presenting such an unsolvable moral dilemma to the students, and then living them without any answer would reduce the purpose of this sort of education. However, this purpose can only gain validity, if it is proven that in many cases, even though at the first glimpse it seems to be implausible, the unresolved situations can be shifted to practical problems other than dilemmas.

It addition, it is possible to describe the meta-choice of a judge or lawyer, which in fact constitutes the resolvability. For student it means to achieve a  certain capability or intellectual sensitivity which will allow them to identify and understand particular choices. The question of how does it look in concrete cases, as well as how more or less could the class’ scenario look like will be answered i.a. in next chapter.