First dilemma: professional duty vs. professional dutyduty

The first type of dilemma follows from a  collision of duties created by professional roles. It is most characteristic because it is duties that primarily

45 David Luban, W. Bradley Wendel, “Philosophical Legal Ethics: An Affectionate History,” The Georgetown Journal of Legal Ethics 2017, No. 30, pp. 337 et seq.

46 David Luban, Lawyers and Justice. An Ethical Study (Princeton: Princeton University Press, 1988), pp. 117–118. Cf. Przemysław Kaczmarek, “Etyka prawnicza Davida J. Lubana: moralna ocena czynów, podmiotowość, odpowiedzialność,” Archiwum Filozofii Prawa i Filozofii Społecznej 2018, No. 1, p. 24.

determine the normative structure of a professional role. As mentioned above, including in theory of moral dilemmas, a  symmetrical reason for exclusive options is mainly determined by duties of equal status. This makes situations occurring in professional contexts easily comparable with classic examples of moral dilemmas. P. Foot does this when discussing the driver’s example:

Suppose that a judge or magistrate is faced with rioters demanding that a culprit be found for a certain crime and threatening otherwise to take their own bloody revenge on a particular section of the community. The real culprit being unknown, the judge sees himself as able to prevent the bloodshed only by framing some innocent person and having him executed.⁴⁷

She clearly points out that:

The question is why we should say, without hesitation, that the driver should steer for the less occupied track, while most of us would be appalled at the idea that the innocent man could be framed. It may be suggested that the special feature of the latter case is that it involves the corruption of justice, and this is, of course, very important indeed.⁴⁸

In both cases, as regards the number of victims in any of the options the situation is very similar, hence one could argue that a  judge faces a  choice similar to that of the driver, i.e. the sacrifice of one life to save more others.

Every reasonable person can easily conclude that, in both situations, the choice should be different. In the driver’s case we would admit a kind of calculation of the number of victims, while the judge we would view this as inadmissible. This statement should be treated as obvious, but it allows a more serious problem to be raised: namely why it is so? The author asks, “Why can we not argue from the case of the steering driver to that of the judge?”⁴⁹

In her opinion, the distinction between positive and negative duties is crucial for the different assessment of both situations:

The steering driver faces a conflict of negative duties, since it is his duty to avoid injuring five men and also his duty to avoid injuring one. In the circumstances he is not able to avoid both, and it seems clear that he should do the least injury he can. The judge, however, is weighing the duty of not inflicting injury against the duty of bringing aid. He wants to rescue the innocent people threatened with death but can do so only by inflicting injury himself.⁵⁰

47 Foot, The Problem of Abortion, p. 2.

48 Ibidem.

49 Ibidem, p. 3.

50 Ibidem, p. 4.

The positive obligation to provide help to those who are in danger of being lynched could be realised only at the cost of breaching the negative duty of not doing harm to the accused. If the judge did that, they would become the perpetrator themselves. However, in this context a  crucial question may be posed, namely whether this claim may be generalised for all cases involving the consideration or non-consideration of the extra-legal consequences of their ruling by the judge.

For it can be reasonably argued that judges and lawyers in general always have a negative obligation, following from their professional role, not to allow the breach of legal rules or to use the law as an instrument of harm. Hence, they may consider only such results of their rulings which are directly foreseen by the law – legal effects – which belong to the normative sphere. Any consideration of extra-legal effects existing in reality could be assessed as breaching legal norms at least, or even perhaps as lack of impartiality. Hence, in the discussed situation there is no moral dilemma because there is no symmetry of options – there are clear institutional reasons for one of them. Generalising, such a conclusion could be applied to all similar situations, although it is based on some previous decisions which should be explained.

First, it can be seen that the view according to which a lawyer may consider only legal effects, that only these effects can generate reasons for a decision, and that all extra-legal effects are beyond their interest, may be identified as formalist.

At the other extreme, there are instrumentalist views that point to the necessity of considering various extra-institutional aims in legal decisions, because such decisions are never made in a vacuum but in a specific social and economic context. Both positions predicate statements of normative nature, so the latter, for example, cannot be identified with legal realism and its indeterminacy thesis, according to which the content of adjudications is not determined by legal rules, or at least not only, but by many facts. They influence judicial decisions by virtue of causal relations and not by providing normative value. This may also occur in an unconscious way. It has to be stressed that, in this discussion, such a view is not useful because the problem of moral dilemmas is the problem of reasons to act. If a lawyer decides to consider in their reasoning the extra-legal effects of a decision, or does the opposite, they do so on the normative level. Here, the opposition between formalism and instrumentalism is essential.

However, it may be said that, in the above example, and surely in many others, the judge with complete conviction will give primacy to their negative obligations and will not sacrifice the accused to save potential victims of a  lynching. Such a  judge would not in this manner because they were a  supporter of formalism and the opposite decision would be inadmissible instrumentalism. Certainly, there are many examples of instrumentalism being

used in the reasoning that courts, such as in cases related to business activity.

However, making a moral choice seems more important than choosing between formalism and instrumentalism. As has been remarked, only distinguishing positive and negative obligations entails such a choice made at a higher level, namely a deontological one. It loses significance when we look at the problem with a consequentionalist’s eyes. Then, the agent-centered option, namely that which is guided by one’s own preferences provided that no evil is done, must yield before the general calculation of the amount of evil that will follow both options of conduct. In the discussed example, such a meta-decision in favour of deontology seems in line with our intuitions.

But let us take another example, in which symmetry of options is more visible and the dilemma between deontologism and consequentionalism clearer.

On 7 January 2016, the Polish Constitutional Tribunal issued judgment⁵¹ to discontinue proceedings on the consistency with the Constitution and the Act on the Tribunal of five acts of the Sejm of 25 November 2015, citing the lack of legal grounds for the Sejm (the lower house of Polish parliament) of the previous term’s election of a  Tribunal judge, and for the subsequent election of five replacement judges by acts of the Sejm of 2 Dec. 2015. The reason for discontinuation was the inadmissibility of a  decree being issued due to the Tribunal’s lack of competence (which lies primarily in studying the consistency of normative acts and not individual acts with acts of higher order). The Tribunal decided that the above acts did not fall into this category, either formally or substantively, so refused to look into the case. This ruling is interesting because, among other things, it was issued in an early stage of Poland’s “constitutional crisis,” and for that reason is significant for the further course of events. Simultaneously, it upholds the Tribunal’s opinion both on the understanding of a normative act and in reference to the mentioned acts of the Sejm concerning their lack of legal grounds, i.e. that they are neither normative nor creational nature, but are partly statements and partly resolutions.⁵²

In substantiation, the Tribunal stressed the exceptionality of the circumstances in which it adjudicated, and referred to the extra-judicial activities it undertook:

In this situation, the Constitutional Tribunal – in the spirit of responsibility for maintaining the constitutional order in the state, respecting the principle of cooperation of the authorities expressed in the preamble

51 Case No. U 8/15.

52 Piotr Radziewicz, Piotr Tuleja, eds., Konstytucyjny spór o granice zmian organizacji i zasad działania Trybunału Konstytucyjnego czerwiec 2015–marzec 2016 (Warszawa: Wolters Kluwer, 2017), p. 47.

to the Constitution and protecting fundamental constitutional values – attempted to cooperate with the legislative and executive authorities, in particular with the President, becoming a party to the dialogue in seeking a constitutional solution to the disputed issues and striving to overcome as soon as possible the controversy affecting the very essence of the democratic state of rule of law.

In spite of these circumstances and – as one can only presume – being aware of their possible consequences, which it did not stop by its decree, the Tribunal accepted that its scope of freedom:

Was indicated first of all in the Constitution, defining its position in the structure of organs of public authority, its tasks and competences granted to it for that goal. By interpreting legal regulations concerning its activity, the Tribunal refrained from interpreting them extensively (interpretatio extensiva), remaining at the so-called literal interpretation (interpretatio declarativa).

In further argumentation, the Tribunal considered it inappropriate to assess the appealed resolutions, which meant that they remained in practice and de facto influenced the ongoing functioning of the Constitutional Tribunal itself.

Three dissenting opinions were put forward. The most interesting was formulated by M. Zubik, who did not share the position excluding the possibility of the Tribunal reviewing the constitutionality of the Sejm’s resolutions of November 25, 2015. The author − like the Tribunal − emphasised the uniqueness of the circumstances of adjudication, stating that:

For the first time in its history, the Constitutional Tribunal faced the problem of assessing the resolutions of the Sejm which explicitly enter into the sphere of regulation forming constitutional matter and demanding the regulation of given social relations in the form of a normative act. This requires adapting the Tribunal’s statements to the specificity of the situation being assessed. Simple reference to the previous jurisprudence regarding the law-making resolutions of the Sejm to resolutions of a different nature had to raise the question about the usefulness of this acquis to the resolution of a case pending before the Tribunal. In my opinion, this case is a precedent.

Then, arguing for a  functional and, consequently, broader interpretation of the Tribunal’s powers, he stated that “in a  democratic state of law it is unacceptable to assume that a  certain sphere of law-making activity of the Sejm, as the central state body, would be completely out of control as regards constitutionality.” He also emphasised that “A  different interpretation means accepting the practice of circumventing constitutional norms defining the forms

of taking actions by the state authorities. It also results in narrowing the scope of the Tribunal’s implementation of the hierarchical control of norms, and thus leads to the weakening of the principle of the supremacy of the Constitution.”

This decision met with comments from legal academia, which pointed out the advantages and disadvantages of the position adopted both in the ruling of the majority and in the dissenting opinion. As P. Radziewicz emphasises, in this way the Tribunal “did not violate its subject-matter jurisdiction and did not enter the scope of other constitutional state organs, but – to maintain its verdict under the law system – had to disregard the actual effects of resolutions, remaining in a certain isolation in relation to current political and legal events.” An alternative outlined in a separate opinion would require “a creative reinterpretation of the means of action or the competence basis of the Tribunal, in order to include – on the border of political position or, unfortunately, outside it – the valid meaning of the Sejm’s resolutions in the adjudication.”⁵³ According to the author, the problem of the Tribunal can be understood primarily as the tension between a formalistic and realistic approach.

In turn, T. Pietrzykowski, clearly approving the position of the Tribunal, referred to the above dissenting opinion, seeing in it “concern about practical consequences of admitting the possibility of lawmaking resolutions of the Sejm which, however − due to lack of features of a  normative act – are not to be evaluated” by the Tribunal. He notes that the arguments it raised “refer mainly to the assessments indicating that the legal order in which certain acts are not subject to effective control of their constitutionality, is clearly worse than the one in which each such act may be examined by the Constitutional Tribunal.”

Consequently, he claims that “mere disapproval of the way the powers of different authorities are established is not enough to recognise that it can be interpretively modified to achieve all desired effects.”⁵⁴ The author points out that such an approach is completely consequentionalist in nature. Although he does not say so, one might wonder, therefore, whether the position of the majority could not be described as principled or deontological, and as such opposed to the approach represented in the dissenting opinion.

On the other hand, K.J. Kaleta states in this book that the position of the Tribunal, although consistent with the current constitutional acquis is, however,

53 Piotr Radziewicz, “Kontrola konstytucyjności uchwał Sejmu (uwagi na marginesie postanowienia TK w sprawie U 8/15),” Państwo i Prawo 2016, No. 7, pp. 63–64.

54 Tomasz Pietrzykowski, “Czy TK powinien był umorzyć postępowanie w sprawie uchwał Sejmu?

Krótki komentarz do postanowienia TK z 7 stycznia 2016 r.,” Obserwator Konstytucyjny, available at http://niezniknelo.pl/OK2/artykul/czy-tk-powinien-byl-umorzyc-postepowanie-w-sprawie-uchwal-sejmu-krotki-komentarz-do-postanowienia-tk-z-7-stycznia-2016-r/index.html, accessed on 13th August 2018.

attributing to “the resolutions a  meaning different from both their exact wording and the intention of the draft’s proponents revealed in the justification of the draft. More significantly, such interpretation would ignore the real impact which these resolutions (…).” It means that it abstracts from the actual effect that these resolutions had in the legal order, and, therefore, their influence on the correctness of judges’ positions, which will directly affect the ability to adjudicate in the future. On the other hand, the standpoint from the dissenting opinion, although “aiming to counteract the resolutions’ real effects in the legal system – would require acknowledging the constitutive nature of parliamentary resolutions, and in consequence redefining the universally accepted criteria of the normativity of a legal act for the sake of analysed individual case. This would mean breaking with previous acquis constitutionnel and the dominant opinion of legal scholars. Such proceedings expose judges to accusations of acting contra legem and of the instrumental treatment of jurisprudence and legal doctrine’s acquis.”⁵⁵ The author states that this choice has “traits of dilemma in the strict sense,” and the tension visible in it primarily concerns the passive and active attitudes of judges.

It should be noted that the quoted comments can be grouped in a diagram in which the standpoint of the Tribunal appears as formalistic, deontological and passivism, and the proposition contained in the dissenting opinion as realistic, consequentialist and activism. So, these are two different attitudes to the fundamental judicial problem faced by the Tribunal, and they can be conceptualised differently. However, there are no good arguments for choosing one of them or, rather, each one has as many pros as cons. Therefore, I intend to defend the claim that the choice between these attitudes is moral and, due to specific circumstances of the case, takes on the form of a meta-dilemma. These circumstances are predominantly the anticipated effects of the ruling that will occur in the sphere of systemic practice. Both the Tribunal and the authors of the dissenting opinion were aware of them, but only in the latter case can a clear demand for their inclusion be found. While the former stated that it took up its moral responsibility in this area, it tried to pursue it in the extra-judicial sphere, for example in cooperation with the President of the Republic of Poland. In the dissenting opinion, these effects were to have a clear impact on the legal view presented in it – or, more broadly, the theoretical choice.

In the discussed example, one can also see the stack structure of choice.

The Tribunal had first to decide whether to settle the matter, and only if the answer to that question was positive, to start examination of its substance. From

55 See Krzysztof J. Kaleta, Chapter 9: Lawyers’ and Judges’ Dilemmas in Constitutional Law, case No. 11 in this book.

a legal point of view, such a structure is, of course, determined by the priority of formal issues before the merits, and more specifically by the need for each public authority that begins to hear the case to examine its own jurisdiction.

In the discussed perspective, the matter is no longer so obvious, because it was possible to reasonably assume or even anticipate that the refusal to subject the Sejm’s resolutions to legal control also means they will not be subjected to such control by any other body, will cause them to remain legally binding (but not valid), and will have negative political consequences. Therefore, the lack of a substantive choice turned out to be a definite choice, and thus one can speak about the existence of alternative and disjointed options of conduct.

In the situation of the Tribunal, the options can be considered as symmetrical in the sense of both theories concerning its sources. On the one hand, one can argue that the lack of a good solution resulted from the “perfect equality” of the options. Each of them would lead to equally negative consequences that would be detrimental to equivalent values. If, for example, the stability of institutions and the Tribunal’s ability to exercise its competences were regarded as such values, it can be argued that both options (as accepted by most judges and proposed in dissenting voices) carry the same detriment, which generates the same strong reasons for each of them. Leaving the Sejm’s resolutions in force by refusing to control them was one of the elements of the later destabilisation of the Tribunal. However, it can be reasonably assumed that the adoption of an activist attitude would result in the exacerbation of the existing systemic dispute

In the situation of the Tribunal, the options can be considered as symmetrical in the sense of both theories concerning its sources. On the one hand, one can argue that the lack of a good solution resulted from the “perfect equality” of the options. Each of them would lead to equally negative consequences that would be detrimental to equivalent values. If, for example, the stability of institutions and the Tribunal’s ability to exercise its competences were regarded as such values, it can be argued that both options (as accepted by most judges and proposed in dissenting voices) carry the same detriment, which generates the same strong reasons for each of them. Leaving the Sejm’s resolutions in force by refusing to control them was one of the elements of the later destabilisation of the Tribunal. However, it can be reasonably assumed that the adoption of an activist attitude would result in the exacerbation of the existing systemic dispute