3.4.1. Axiological objectivism (absolutism)
The first dilemma faced by a lawyer or a judge is the question of whether values are objective (absolute) or subjective (relative).27 According to the objectivist view, values appertain to some form that is primary to evaluations, norms and things. For example, T. Ślipko, on the grounds of the Christian paradigm, claims that values (truth, beauty) are “idealities of objects” that have a “form of being higher than others,” and simultaneously are extra- and trans-subjective, making “unattained ideals of human conduct.”28 In antiquity, a similar view was proposed by Plato’s objective idealism,29 was later reflected in the concept of Unity by Plotinus,30 and then in Christian thought combined the concept of the “idea” with God’s substantiation.31 Absolutist ideas were also held, with some reservations, by I. Kant.32 In another perspective, the objectivist view was adopted by utilitarianism, which correlated the problem of good and evil with empirical verification of the basic value, namely human happiness.33
27 It is worth recalling W. Tatarkiewicz’s view, who divided theories of values into maximalist and minimalist. The former claim objectivity an absolutism of values, whereas the latter: subjectivism, relativism, sociologism, historicism, conventionalism, scepticism and nominalism. After: Bohdan Dziemidok, “Aksjologia Władysława Tatarkiewicza,” in Teoretyczne i praktyczne kłopoty z wartościami i wartościowaniem. Szkice z aksjologii stosowanej, ed. Bohdan Dziemidok (Gdańsk: Wydawnictwo Słowo/obraz terytoria, 2013), p. 251.
28 Tadeusz Ślipko, Zarys etyki ogólnej (Kraków: Wydawnictwo WAM, 2004), p. 201.
29 Frederick Compleston, History of Philosophy Volume 1: Greece and Rome (London–New York:
Continuum, 2003), pp. 164–166.
30 Ibidem, pp. 465–466.
31 Augustin’s views, who claimed that “eternal truths” are God’s ideas, are the bridge between Platonism and Christianity. St Thomas, on the ground of Aristotelianism, stated that there are three kinds of non-substantive “universals” one of which is “independent from objects” (universale ante rem) that is an idea within God’s mind, a pattern according to which God created the real world. Cf.
Władysław Tatarkiewicz, Historia filozofii, vol. I (Warszawa: PWN, 2001), pp. 196 and 274.
32 Ślipko, Zarys etyki ogólnej, p. 205. W. Tatarkiewicz points out that I. Kant, in his critique of traditional proofs of metaphysics, simultaneously held that God’s existence is one of the postulates of practical reason. After: Władysław Tatarkiewicz, Historia filozofii, vol. II (Warszawa: PWN, 2001), pp. 177–178.
33 Władysław Tatarkiewicz, Historia filozofii, vol. II (Warszawa: PWN, 2001), p. 125.
Modern objectivist theories include the intuitionism of G. E. Moore, according to whom good is an objective quality and simultaneously intuitively simple and hence indefinable.34 The absolutist stance also approaches the phenomenological ethics of values (developed by M. Scheler and N. Hartmann), which presupposes that values exist a priori, materially and independently from objects.35
In the wide objectivist current discussed, T. Pietrzykowski distinguishes ethical monism and pluralism. In the light of the former there supposedly exists an absolute hierarchy of values creating together a coherent system of moral evaluations. Within monism there may be distinguished monism “in the strict sense,” expressed in the view that all values are instrumental in relations to a certain head value (God in Christianity, happiness in utilitarianism, etc.) and monism “in the broad sense,” in which there are more objective values but they make a coherent and organised system.36 Pietrzykowski also includes pluralism of values in the sense understood by I. Berlin as the objectivist view. According to Berlin, pluralism is not identical with relativism, and the philosopher claims that “multiple values are objective, are rather an immanent part of the essence of humanity than arbitrary products of subjective personal inclinations.”37 Thus, according to this opinion, values exist independently of individuals’ preferences, with simultaneous recognition that they do not form a coherent system of hierarchy apart from a very narrow set called by Berlin the common minimum.38 Hence, in specific instances, values may be mutually incompatible, collisional or exclusive, which leads to conceptual and empirical conflicts.39 Moreover, in light of Berlin’s key thesis, the objective existence of a comprehensive set of values precludes the settlement of many axiological dilemmas. This follows from the “incommensurability”40 of values, namely the lack of any common
34 Vardy, Grosch, The Puzzle of Ethics, p. 89.
35 Cf. Max Scheler, Der Formalismus in der Ethik und die materiale Wertethik: Neuer Versuch der Grundlegung eines ethischen Personalismus (Leipzig: Meiner Verlag, 2014); Nicolai Hartmann, Ethik (Berlin: Walter de Gruyter, 1962). Cf. Marcin Pieniążek, Etyka sytuacyjna prawnika (Warszawa:
LexisNexis, 2008), pp. 115 et seq.
36 Tomasz Pietrzykowski, Etyczne problemy prawa (Katowice: Naukowa Oficyna Wydawnicza, 2005), p. 31. Cf. Leszek Kołakowski, Czy diabeł może być zbawiony (London: Wydawnictwo Aneks, 1984), p. 93.
37 Beata Polanowska-Sygulska, Pluralizm wartości i jego implikacje w filozofii prawa (Kraków:
Księgarnia Akademicka, 2008), p. 60.
38 B. Polanowska-Sygulska writes that Berlin purports the existence of the common minimum of values, and simultaneously refrains from delivering their catalogue or characterisation. Cf.
Polanowska-Sygulska, Pluralizm wartości, p. 62.
39 Cf. ibidem, pp. 64–66.
40 Dilemmas also concern the meaning of the concept of “incommensurability.” S. Wojtczak indicates a number of possible understandings of the concept of incommensurability, including incomparability, the lack of common measure, the impossibility of ordering, the lack of transitive
scale of comparison.41 It has to be noted that a different view was expressed by representatives of phenomenological ethics of values, such as Scheler and Hartmann, according to whom a priori values may always be compared and ordered in the act of preference, thanks to axiological intuition.42
3.4.2. Axiological subjectivism (relativism)
The subjectivist current in turn comprises ideas rejecting the thesis of the real existence of values and an objective axiological order. In this light, man not only learns but also creates values by deriving them from evaluations, norms, observed facts, etc.43 According to its proponents, subjectivism is confirmed by the diversity of opinions about values and their hierarchy in “various human groups.” In this context, M. Szyszkowska notes the formation and coexistence of dual axiological systems: verbally recognised, “usually made of pompous norms and based on noble ideals,” and practically applied systems.44 Therefore, according to Szyszkowska, there are no such values, “including good,” whose importance would be independent of human reason, feelings and will. Thence, values depend on the subject that cognises and the subject of cognition.45 Szyszkowska indicates that axiological subjectivism may take individualistic or universalistic form. In the former case, the subject creating the value is an individual, in the latter – a set of individuals.46 Universal subjectivism may manifest in the opinion that it is a defined majority of people that decide about
relation in some ordering relation, indeterminacy, tragicality and the lack of a consistent pattern of decision making. Cf. Wojtczak, O niewspółmierności, pp. 39–65.
41 Pietrzykowski, Etyczne problemy prawa, p. 32.
42 Cf. Nicolai Hartmann, “Specyfika intuicyjnego poznania wartości,” in Wypisy z „Etyki,” ed.
Nicolai Hartmann (Toruń: Wydawnictwo Uniwersytetu Mikołaja Kopernika, 1999), pp. 90–100.
43 In this perspective, the problems of changes in the axiological basis of law in the time of transition from a centrally planned state to a democratic state are covered by the joint publication entitled Dynamika wartości w prawie, ed., Krzysztof Pałecki (Kraków: Księgarnia Akademicka, 1997).
44 M. Szyszkowska, Etyka (Białystok: Kresowa Agencja Wydawnicza, 2010), p. 12.
45 Ibidem, p. 13.
46 In Polish sociology of law the subjectivist view which goes beyond the purely individualist perspective is postulated, i.a., by K. Pałecki. According to him, on one hand values should not be described idealistically (e.g. as Platonic ideas) and metaphysically (e.g. as objects and states of affairs transcendently determined), on the other hand they are not to be understood only as subjective experiences (e.g. in the psychological reductionism perspective).
Therefore, Pałecki declines the existence of values that are “objective,” independent from feelings, judgments, determining, etc. of concrete people, but he accepts that it is empirically possible to state whether a certain object is a value within a given culture, society, group, place, time, etc. He refers to the so-called relational ontology of social life proposed by P. Bourdieu and L. Wacquant. Cf. Krzysztof Pałecki, entry: “Aksjologia prawa,” in Leksykon socjologii prawa, eds. Anna Kociołek-Pęksa, Mateusz Stępień (Warszawa: Wydawnictwo C.H. Beck, 2013), pp. 2–3.
values. For example, according to E. Durkheim morality is formed by society as “collective representations.” A particular variant of universal subjectivism is conventionalism, according to which values are determined by social contract.
The most advanced subjectivist view states that values are dependent on a certain culture and are subject to constant modifications over time.47 Within this stance, the aforementioned emotivism developed, which assumes that statements about values are pointless and are only a sign of a subject having had some experiences.48
Ślipko names, among others, the following modern subjectivist theories of values: pragmatism (Dewey), sociologism (Durkheim, Levy-Bruhl), philosophical neo-positivism, and existentialism (Schlick, Sartre). Notably, existentialism accepts that man creates moral values in each act of choice as the realisation of fundamental and authentic human value, i.e. freedom.49
3.4.3. “Cross trends”
The above enumeration is not exhaustive and serves only to signal the richness of possible absolutist and relativist pro-axiological views. To complement this picture, it is worth remarking on the cross trends that break the boundaries of the classifications indicated. Some of them, as for example the Christian version of the phenomenological ethics of values (represented by, among others, D. von Hildebrand and E. Stein), adopt an accommodating stance between different objectivist views, while other trends, such as Christian existentialism, refer to subjectivist currents but finally opt for the absolute existence of values. A contrary case is the phenomenological ethics of R. Ingarden,50 stemming from the absolutising and a priori theory of values, and yet resulting in conclusions of a, to some extent, relativist nature. Ingarden believed that a value is dependent on and relative to the object, and is not, in itself “an independent object.” More precisely, according to the philosopher, values are built on a certain object and in some special way adhere to it, despite the value itself being “an entity (entitas) of quite special structure.” Eventually, according to Ingarden, a “value stems from the very essence of an object,” which causes the whole object to manifest dignity proportional to the value, namely the dignitas of existence.51
47 Szyszkowska, Etyka, p. 14.
48 Pietrzykowski, Etyczne problemy prawa, p. 34.
49 Ślipko, Zarys etyki ogólnej, p. 205.
50 Cf. Roman Ingarden, Wykłady z etyki (Warszawa: PWN, 1989), pp. 123–126.
51 Cf. Andrzej Półtawski, “Wartości a ontologia Ingardena,” in Roman Ingarden a filozofia naszego czasu (Kraków: Polskie Towarzystwo Filozoficzne, 1995), p. 114.
3.4.4. The lawyer or the judge and the modus existendi of values
It is also worth posing the question of whether a lawyer or a judge accepting some mode of existence of values can remain “professionally unaffected” by them. One may reflect that a lawyer’s ambivalence to values will be regarded differently depending on whether the realisation (especially application) of law will be defined as a reproductive (legal positivism) or creative (legal hermeneutics) process. The difference indicated comes from the role ascribed to the subject in the process of the application of law, which, in the light of quasi-logical concepts of subsumptive reasoning, does not involve the axiology of the subject, which is “the mouth of a statute,” whereas in the light of phenomenologically oriented legal hermeneutics, this fully involves the interpreter’s ontology and axiology.52 Therefore, on the grounds of positivist orientation, a lawyer’s or judge’s axiological ambivalence is admissible, perhaps desirable, especially when we rigorously support the thesis of the separation of law and morality.
Meanwhile, in the light of phenomenology and the assumptions of legal hermeneutics, the lawyer’s or judge’s taking of sides regarding certain values will affect the final shape of the realisation of the law. Hence, it needs to be reiterated that the choice of a specific theoretical-legal orientation, both on the macroscale of the preferred paradigm of law and on the microscale of each lawyer’s or judge’s convictions, is reflected directly in the settlement of axiological quandaries.