Institutionalised ought as exclusionary reasons

The view on the priority of institutional duties is usually associated with the concept of exclusionary reasons by J. Raz. In order to understand it well, and to understand how it affects moral dilemmas, it is necessary to start with the fact

11 Ibidem, p. 157.

that, for Raz as regards sphere of practical reasoning, reasons are of fundamental significance. At the most general level, he defines them as relations between facts and persons. Reasons are therefore always “to someone” and find application in specific situations. Their defining trait is that they have a dimension of strength, or weight, thanks to which, it is possible for the subject to balance them and resolve which are overriding and which are weaker and must yield. However, it should be noted immediately that being overridden by reasons of greater weight is not the only reason why a  given reason will not be applicable. Situations in which a  given reason depends on meeting certain conditions, including cancelling conditions, are possible and frequent. If the latter are met, the reason is not applicable, even if it has not been overridden by other reasons. Another important aspect of reasons is that they are the source of “critical attitude towards behaviour which conforms to or conflicts with the statement,” which

“manifests itself in action and in other beliefs, attitudes and emotions,” and also

“in addition to the first critical attitude an additional critical attitude directed towards aspects of the world other than the beliefs people have.”¹²

Among reasons understood this way, the author distinguishes the first-order and second-order reasons for action. This distinction makes sense because of the way in which collisions between particular types of arguments are resolved.

As mentioned, as a rule, this is done by balancing based on the relative weight of reasons. However, in the case of first-order and second-order reasons, this is not the case. In such conflicts, the latter always prevail. This is because “a second-order reason is any reason to act for a  reason or to refrain from acting for a reason.” As a consequence, these reasons relate primarily to other reasons and thus indirectly affect the decisions. Among the second-order reasons, the most common are exclusionary reasons, which are “a second-order reason to refrain from acting for some reason.” It is a general principle of practical reasoning that exclusionary reasons always prevail over first-order reasons. The latter can thus be out-weighted both by other first-order reasons and by exclusionary reasons. It is also important that exclusionary reasons cannot be overridden by first-order reasons, but can give way to other second-order reasons.¹³ The concept of exclusionary reason is crucial for J. Raz to clarify the concept of rule, including legal rules and their role in practical reasoning.

Before this is discussed, it should be noted that what has been said so far allows us to reconstruct the argument about the priority of institutional obligations before moral obligations. Exclusionary reasons, regardless of

12 Joseph Raz, Practical Reason and Norms (Oxford-New York: Oxford University Press, 2002), pp. 19, 25–27, 32.

13 Ibidem, pp. 36, 39–40.

whether they are rules, promises or orders, disable balancing at the first-order reasons level. Acting on command is the most obvious example here. It is also used by J. Raz himself. If a soldier receives an order, e.g. to requisition a truck, it is his or her duty to do what is required of him or her, without judging whether the order is correct, whether the truck will be really useful or whether it might deprive the people who own it means of support, etc. Even if he or she is aware of these various reasons that might endorse different options of behaviour, he or she should not take them into account. It is by virtue of the order itself, being an exclusionary reason in a soldier’s practical reasoning. Taking into account the various first-order reasons would be permissible only if the order itself allowed it, e.g. due to the lack of orientation in the situation on the side of the issuing party. The author emphasises that the soldier may of course have contradictory feelings about seeing some first-order reasons for the option of behaviour other than the order, but the latter prevails here under the logic of practical reasoning.¹⁴ The author says that:

When the application of an exclusionary reason leads to the result that one should not act on the balance of reasons, that one should act for the weaker rather than the stronger reason which is excluded, we are faced with two incompatible assessments of what ought to be done.

This leads normally to a peculiar feeling of unease, which will show itself when we wish to censure a person who acted on the balance of reasons for disregarding the exclusionary reason and when we have to justify someone’s acting on an exclusionary reason against claims that the person concerned should have acted on the balance of reasons.¹⁵

Thus, one can speak in such situations about subjective feelings of the subject which perhaps correspond to the subjective elements of the dilemma discussed earlier. It is therefore about a difficult choice, sense of guilt and dirty hands. Nevertheless, the subject is eventually able to recognise their duty, despite seeing an alternative way to assess a given situation based only on balancing of first-order reasons. There is no uncertainty as to how to proceed, but only awareness of the existence of an alternative assessment, discarded on the basis of exclusionary reason.¹⁶

Subjective feelings, however, do not exhaust all problems that may arise in connection with exclusionary reasons in practical reasoning. There may also be at least two other types of situations. First of all, it is possible to encounter the already mentioned problem of cancellation conditions for exclusionary

14 Ibidem, pp. 41–43.

15 Ibidem, p. 41.

16 Ibidem, p. 43.

reasons. The subject facing the contradiction between behaviour resulting from an exclusionary reason and the balancing of first-order reasons may evade the former if they determine that certain conditions are met. They can be varied and, for example, refer to the extraordinariness of the situation. They may also be unclear and cause interpretation problems, which will further complicate the situation. These conditions, however, must result from the same basis as the exclusionary reason, e.g. to be part of an order, rule etc.

Conflict of second-order reasons, including exclusionary reasons, is also possible. This could be, for example, a conflict between an order and a rule or between two promises or between two rules, as well as many other cases. Of course, there may also be situations where such collisions can be solved with cancellation conditions, e.g. an illegal order cannot be executed. Undoubtedly, there will also be situations in which, for example, valid and justified rules can generate dilemmas as a result of a collision between them. The author writes about such situations that:

We do not surrender our judgement altogether. But our deliberations are not about what is right on the balance of reasons. They concern the second-order question of whose judgment regarding the balance of reasons to trust. Our problem becomes a problem of justifying an exclusionary reason.¹⁷

This problem can be seen more clearly when we turn our attention to J. Raz’s discussion of various types of rules as exclusionary reasons, including first of all mandatory norms. He emphasises that in the majority of cases they are “both a first-order reason to perform the norm act and an exclusionary reason not to act for certain conflicting reasons.” As such they are “justified as time-saving devices and as devices to reduce the risk of error in deciding what ought to be done,” as well as “labour-saving devices.”¹⁸ They can perform all these functions because they disable balancing of first-order reasons, and at the same time – with a few exceptions – contain a specific obligation. Sources of rules, however, may be different, as may the reasons that endorse them. As the author emphasises:

Rules are not ultimate reasons. They have always to be justified on the basis of fundamental values. This is a result of the fact that norms are exclusionary reasons. A reason not to act for reasons cannot be ultimate.

It must be justified by more basic considerations.¹⁹

17 Ibidem, p. 64.

18 Ibidem, pp. 58–59.

19 Ibidem, p. 76.

A  consequence of this statement is the necessity to supplement practical philosophy with a plane including a theory of values, and – as J. Raz adds – the plane concerning a theory of responsibility. This assumption is also accepted in this book. However, it has to be remembered that one can speak of “relative independence of norms from their justifying reasons” which “explains why they are regarded as complete reasons in their own right and why we hypostatize them and treat them as objects.”²⁰ This means that only when there is a need to resolve a conflict between exclusionary reasons should the subject weigh the justification of the rules. Otherwise they will be excused if they are guided by a rule (or, for example, a promise, an order, etc.). It would confirm that, in the discussed perspective, dilemmas are in principle resolvable, but it is possible to distinguish the meta-dilemma level, on which this solvability depends.

An additional element of reflections to be considered is that, in the case of judges and lawyers, there is a particular type of institutionalised system of norms. For Raz, most generally speaking “lnstitutionalised systems are sets of norms which either set up certain norm-applying institutions or which are internally related in a  certain way to these.”²¹ These institutions can be described as the primary organs, and therefore in approximation simply public institutions, and in the case of the law, of course in the first place, the courts.

For the author “They are institutions with power to determine the normative situation of specified individuals, which are required to exercise these powers by applying existing norms, but whose decisions are binding even when wrong.”²² It is particularly important, however, that:

The introduction of primary organs is not a simple addition to a normative system. Their introduction radically transforms the system adding to it a whole new dimension, that of authoritative evaluations of behavior.²³

The difference the existence of the primary organs makes in a given system of norms lies primarily in the fact that they have the authority to resolve disputes, but they can do so only on the basis of norms belonging to this system. Therefore, a general norm is addressed to them to exclude reasons other than the norms institutionalised in this system. In other words, for example, judges cannot take into account reasons other than legal norms because this is ruled out by their professional role. This is not accidental, but results from conceptual necessity. Otherwise, the courts could not be treated as primary organs. They must adopt a legal point of view, which in their case is exclusive.

20 Ibidem, p. 79.

21 Ibidem, p. 132.

22 Ibidem, p. 136.

23 Ibidem, p. 142.

A different description of the role of a judge is therefore not possible without misunderstanding. J. Raz emphasizes that:

the judges who judge a man from the legal point of view do not necessarily deny the validity of other reasons which bear on his action. They may well believe that there are other reasons which, all things considered, justify his action. Yet they may condemn it because theirs is a judgment from the legal point of view only.²⁴

It can be said that taking non-legal reasons would mean a  violation of exclusionary reasons necessarily related to the role of the judge. It would be going beyond the legal point of view, perhaps taking on another role. However, it should also be remembered that it follows from the essence of law as an institutionalised system of norms that the rulings are authoritative. Therefore, they are binding even if they are wrong, and therefore also if the judge got into balancing reasons which should not be taken into account. This makes a meta-dilemma that the judge may face particularly weighty.

Of course, this is the sphere of our interpretations of J. Raz. Thanks to them, the importance of institutions in the ethics of judges and lawyers, as well as the problems of dilemmas on these grounds, becomes visible. Metaphorically speaking, institutions act here as a  kind of lever or gear, which makes the judge’s decision authoritative. In the normative sense it is imperative, and in the social sense objectified. This creates a meta-dilemma in which an alternative can be indicated. On the one hand, for the above reasons, a judge cannot deal with a specific problem that he must solve as if it concerned only them. The institutional context here excludes non-legal reasons, which would be reasons uniquely for the judge. Of course, not only judges may only take the legal point of view and omit all non-legal reasons:

The ideal law-abiding citizen is the man who acts from the legal point of view. He does not merely conform to law. He follows legal norms and legally recognized norms as norms and accepts them also as exclusionary reasons for disregarding those conflicting reasons which they exclude.²⁵

In the case of citizens, it is only an ideal, but for judges it is a necessity. On the other hand, it may happen that the non-inclusion of extra-legal reasons will lead to negative consequences for the party whose case the judge decides, or for other parties. The institutional nature of law will reinforce the negative consequences. For the judge, this may be a  serious reason to accept such an understanding of their role, so as to neutralise such negative consequences.

24 Ibidem, p. 143.

25 Ibidem, p. 171.

However, this would mean abandoning the legal point of view. Then, however, they expose themselves to other types of negative effects. Namely, if they adopt an understanding of their role otherwise than as objectively determined by the institution, then the institution will still work in accordance with its internal logic. This may bring an accusation of going beyond one’s role and using the institution for other, e.g. personal, goals. Some could consider such behaviour as abuse of power.

It should be emphasised that such situations are not simply problems arising from the judge’s failure to accept the law they are obliged to apply. Of course, such issues may also appear and lead to conflicts of conscience. However, the discussed meta-dilemma will more often appear in situations where systemic problems need to be solved. For, if the public authorities are based on the division of tasks and each of them has the appropriate competences, then, according to what has been said, none of them should go beyond them.

However, when one of the institutions fulfills these tasks incorrectly, and other institutions only uphold the wrong state of affairs, the consequence may trigger a serious systemic problem. It can be said that it will be a result of neglect. In such situations, the judge’s meta-dilemma will take the form of the question of whether the court should actively try to fix such complex systemic problems, or act passively according to the rules, not only not to solve the problem, but to join the group of institutions that consolidate it.