Responsibility Dilemmas
4.3. Moral responsibility in legal and judical ethics:
4.3.5. The problem of escaping responsibility in the three moral dilemmas in the three moral dilemmas
What is common to the discussion of the three above moral dilemmas is the exposition of costs connected with the choice of responsibility in the 1) positivist, 2) retrospective, and 3) organisational perspectives. When presenting these costs, it is pointed out that a lawyer is morally responsible for action taken, and that the choice of responsibility in the respective views gives that lawyer refuge, disburdening them of responsibility. To justify this stance, one may refer to findings of Scott Veitch, according to whom the reason why responsibility vanishes is among other things its location in complex organisational structures.
This results in transferring responsibility from an individual to a legal provision.
In this way, the image that the legal system purportedly bears responsibility for a decision is created.101 Veitch warns that this practice leads to law contributing to “organised irresponsibility,” i.e. a situation resulting in dispersion of responsibility, ascribing responsibility too much impersonality.102 According
99 Ibidem, pp. 2370 et seq.
100 Ibidem, pp. 2383 et seq.
101 Veitch, Law and Irresponsibility: On the Legitimation of Human Suffering, pp. 85–95.
102 Ibidem, p. 143.
to the Scottish philosopher, this mechanism is an “institutional excuse,” by which responsibility for decisions taken rests with impersonal organisational structures or a group of people. In the same vein, Zenon Bańkowski sees in the choice of legal positivism the causes of the neutralisation of moral responsibility.
To Bańkowski, there is an example of “escape from responsibility” when one gives primacy to the rule of conduct according to which “if you observe the rules, then at least you do not bear responsibility and have nothing to worry about.”103 The price for this way of building the certainty of action is the loss of: “oneself and the subject matter of the ruling on behalf of the law […] rules are self-realising.”104 As a result of this process: “the judge turns into a machine executing general law, programmed to apply law in every case in which there are conditions to apply it.”105
A more balanced opinion in the discussion of a lawyer’s responsibility in the perspective of choice between positivism and communicative legal views is formed by Zirk-Sadowski: “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.”106 This way of action rationalisation at least theoretically disburdens the jurist from settling moral (or cognitive) dilemmas. Nevertheless, as Zirk-Sadowski aptly remarks on the example of a judge’s role: “Only the rejection of positivist textualism and taking side of judicial activism changes the cognitive situation of a judge and provides them with a possibility of bearing ethical responsibility for the content of law.”107 Thence, refuge from responsibility is presented via two mechanisms. The first is retreat into the collective, the second into impersonal responsibility. To examine these two mechanisms in greater detail, let us refer to Hannah Arendt’s diagnoses.108
The first on is characterised by the escape into collective responsibility in which the individual dimension disperses. The second mechanism is to
103 Zenon Bańkowski, “W przestrzeni sądzenia: sędzia i niepokój spotkania,” trans. M. Pichlak, in Z zagadnień teorii i filozofii prawa. Lokalny a uniwersalny charakter interpretacji prawniczej, ed.
Przemysław Kaczmarek (Wrocław: Wydawnictwo Uniwersytetu Wrocławskiego, 2009), p. 171.
104 Bańkowski, “W przestrzeni sądzenia: sędzia i niepokój spotkania,” p. 173.
105 Ibidem, p. 173.
106 Zirk-Sadowski, Uczestniczenie prawników w kulturze, p. 6.
107 Marek Zirk-Sadowski in Paweł Skuczyński, Marek Zirk-Sadowski, “Dwa wymiary etyki zawodowej sędziów,” Krajowa Rada Sądownictwa 2012, No. 1, p. 15.
108 Both mechanisms are presented by Hannah Arendt in: Korzenie totalitaryzmu, trans. part I and III D. Grinberg, part II M. Szawiel (Warszawa: Wydawnictwa Akademickie i Profesjonalne, 2008), pp. 561–565 and 568–569. In legal discourse see: David Luban, “Arendt on the Crime of Crimes,”
Ratio Juris 2015, vol. 28, No. 3, pp. 307 et seq; Luban, Lawyers and Justice. An Ethical Study, p. 121.
transfer responsibility to an impersonal institutional structure. H. Arendt, when showing the mechanism of responsibility dispersion, refers to the way in which the administrative apparatus of the Third Reich was formed. It was designed so that the competences of particular officials overlapped. This was to create a self-propelling mechanism of constant competition between individuals to solicit supervisor’s recognition, while in the social aspect it was intended to create a situation in which a person from outside would not know who was responsible for certain actions. A classic example of this mechanism, according to Arendt, was the way of organising academic antisemitism. In 1933, Institute for Research of the Jewish Question opened in Munich, which subsequently transformed into the Institute for the History of the New Germany, although this scope, i.e. modern history of Germany, was covered by traditional academic centres.
Moreover, in 1940, another institute for the study of the Jewish Question was opened in Frankfurt, and a couple of months later yet another in Berlin under Eichmann. To Arendt, the aim of this mechanism was to escape into collective responsibility in which the individual dimension becomes dispersed. This effect is attained by the marginalisation or exclusion of the sense of prospective responsibility.
The second mechanism of shunning responsibility is based on creating a system in which decisions are made by impersonal structures. This mechanism assumes that individual responsibility is superseded by the organisational form, which exempts a person from settling any dilemmas. The goal of socialisation thus understood is to escape into a world where one is responsible for nothing.
For if there is no room for discretion in the action one takes, then the task of the person “acting” in the role of expert is only to fall into line with the binding rule.109 “I am not accountable for my actions, my actions are not mine but of the institution within which I act.” This reasoning presupposes that moral responsibility rests on impersonal institution.
Bauman’s findings also correspond with the diagnosis outlined above.
According to the Polish sociologist, the above mechanisms of escape from responsibility lead to a situation in which:
Floated responsibility belongs to no one in particular, as everybody’s contributions to the final effect is too minute or partial to be sensibly ascribed a causal function, let alone the role of the decisive cause. Dissection of responsibility and dispersion of what is left results on the structural plane in what Hannah Arendt poignantly described as “rule by Nobody;” on the individual plane it leaves the actor, as moral subject, speechless and
109 Arendt, Korzenie totalitaryzmu, chapter VIII, especially pp. 304–309.
defenseless when faced with the twin powers of the assigned task and the procedural rules.110