Similar properties that reveal the ambivalent character of institutions in moral dilemmas can also be seen in the next situation. It involves the conflict of professional obligation and professional ideal, but it seems that instead of this first obligation, professional duties can also be involved. It is characteristic of the dilemmas identified here that the reasons for one of the options of conduct arise from a moral ideal, and thus a much less specific and individualised obligation.
In the previous chapter, an example of such a dilemma was the choice of Sartre’s student who hesitated between staying with an elderly mother in order to take care of her and leaving her to join the resistance movement and defend his homeland. A concrete obligation to the mother is in conflict here with the general ideal of a citizen or patriot engaged in the affairs of their country, ready for sacrifice in its defence. Therefore, the question should be asked whether
75 Ibidem.
76 Aneta Łazarska, Rzetelny proces cywilny (Warszawa: Wolters Kluwer, 2012), pp. 518 et seq.
a lawyer, and in particular a judge, can find themselves in a situation such as Sartre’s student, and what arguments are provided by the institutional context and the professional role for each of the options.
It should be emphasised that judges and lawyers are used to opposing strict duty contained in legal rules to other types of it similar to the moral ideal in the sense used here. So, for example, the distinction between morality of duty and morality of aspirations, which was used by L.L. Fuller in his legal philosophy, is quite firmly rooted here, including in legal and judicial ethics.
Both types of obligations differ in that the morality of duty formulates rules (the observance of which is a certain minimum requirement for an orderly society) and the morality of aspirations, which sets the pattern for the fullest realisation of human abilities. Quoting A. Smith, the author explains this difference as follows:
The morality of duty “may be compared to the rules of grammar.” the morality of aspiration “to the rules which critics lay down for the attainment of what is sublime and elegant in composition.” The rules of grammar prescribe what is requisite to preserve language as an instrument of communication, just as the rules of a morality of duty prescribe what is necessary for social living. Like the principles of a morality of aspiration, the principles of good writing, “are loose, vague, and indeterminate, and present us rather with a general idea of the perfection we ought to aim at, than afford us any certain and infallible directions of acquiring it.”77
Therefore, one cannot equate morality of aspirations with principles as an ought which cannot be qualified as a strict duty because it dictates the realisation of certain values. As already mentioned, such principles always require balancing to determine whether and to what extent in a given situation they will apply. However, principles refer, like rules, to the realisation of a specific state of affairs, while morality of aspirations concerns certain skills, in particular related to a specific activity. Hence, morality of aspirations is closer to the notion of virtue than the rules of conduct. Fuller writes about this in the following way:
The morality of aspiration is most plainly exemplified in Greek philosophy.
It is the morality of the Good Life, of excellence, of the fullest realization of human powers. In a morality of aspiration there may be overtones of a notion approaching that of duty. But these overtones are usually muted, as they are in Plato and Aristotle. Those thinkers recognized, of course, that a man might fail to realize his fullest capabilities. As a citizen or as an official, he might be found wanting. But in such a case he was
77 Lon L. Fuller, The Morality of Law (New Haven and London: Yale University Press, 1969), p. 6.
condemned for failure, hot for being recreant to duty; for shortcoming, not for wrongdoing. Generally with the Greeks instead of ideas of right and wrong, of moral claim and moral duty, we have rather the conception of proper and fitting conduct, conduct such as beseems a human being functioning at his best.78
Failure to realise morality of aspirations is therefore not a moral evil in the same sense as non-compliance with duties. However, it causes the improper performance of one’s professional role and, ultimately, failure in this field. For this reason, Fuller, for example, is ready to define this type of morality in the field of legislation as the internal morality of law. Therefore, professional ethics cannot be reduced to obedience to duties, and always requires striving for the fullest implementation of the professional ideal, namely the best development and use of one’s professional skills.
Treating moral ideals as the morality of aspiration has several advantages.
First, it goes beyond the perspective outlined by the Sartre student’s dilemma.
The latter seems to be based on a fairly characteristic conflict between the generally understood involvement in public affairs − the role of the citizen and democratic values – and private life, including professional life. With some intuitive assumptions, we can assume that in both spheres we have ought that in certain circumstances can provide conflicting reasons. Acting in the public interest may be at the expense of private life or vice versa – while complete fulfillment of obligations in the private sphere may not leave room for the realisation of civic ideals. Usually, however, we would be inclined to consider that the reasons are not fully symmetrical here. First, because in the private sphere we usually deal with obligations towards specific persons, and being a citizen means an ought of an abstract nature − depending on the approach, towards the nation, society, etc. Therefore, duties and obligations seem to have more weight than moral ideals. We are ready to accept abandoning civic engagement in order to fulfill private duty as justified, and evaluate the opposite action as a sacrifice.
If, however, we equate moral ideals with the morality of aspirations and transfer considerations to the professional ground, the conflict between them and duties and obligations cannot be understood as a conflict between the two spheres, one of which can ultimately be abandoned. It is impossible in this approach to reduce a profession only to duties and obligations, and in this way to give up ideals. It would have to be based on abandoning the development and use of the skills necessary for a given activity, which in fact would be tantamount to resigning from the activity itself in favour of only amateur involvement characteristic of lay people. Hence, including moral ideals among
78 Ibidem, p. 5.
the requirements of a professional role, and treating them as preconditions of good professional practice, allows them to be treated more convincingly as a source of reasons for action equal to the reasons resulting from professional duties or professional obligations. This is also consistent with the classical understanding of professions, meaning those of which the essence involves not only fulfilling duties and obligations, but also certain moral ideals. Through these ideals, an element of profession is commitment to the realisation of the public interest, as well as the special prestige and satisfaction associated with their performance.
Since moral ideals as a part of professional ethics can be a source of symmetrical reasons in relation to reasons arising from duties and obligations, it is possible to consider what type of moral dilemmas it may cause. It seems that there are two basic possibilities resulting from the fact that these ideals include the obligation to develop and use the skills necessary in a given field as much as possible. The first conflict would consist in the inability to simultaneously form or develop one’s own professional abilities and fulfill all professional commitments. In practice, this is usually found in such situations when a given professional, due to the excess of work, has no time to improve their skills or broaden their knowledge. The dilemma of such situations becomes evident when we imagine a doctor who has a choice either to take care of all patients in need of help, but abandon their own professional development, or to improve their skills, but at the expense of leaving some patients without proper care.
It can be argued that, like in other situations considered in this chapter, such choices are usually the result of malfunctioning systems of distribution of services of a given type. This is a form of conflict between quantity and quality of provision. However, the systemic nature of the problem does not eliminate the need to make an individual and extremely difficult choice.
The second type of conflict would consist in the inability to reconcile the full use of professional skills without violating one’s professional obligations. These are specific but seemingly not uncommon situations in which, along with their professional development, more complex and more responsible tasks appear before professionals. For, just as abandoning professional ideals usually means professional failure, their implementation is conducive to success. It is assumed that this success is not only a matter of preferences, but it also has a moral dimension. Namely, professional ideals mean not only the obligation to develop one’s abilities, but to use them in such matters and activities for which they are adequate. Therefore, it is not morally neutral when we undertake tasks that overwhelm us if we do not fully develop our professional abilities. Nevertheless, it is not neutral either if we already have fully developed capabilities, but we do not undertake more ambitious tasks. This is a waste of what we have achieved
in a given profession. This is intuitive, for the fact that certain functions or positions are held by people with insufficient competence means we are ready to blame those who would be fully fit to perform them, but did not want to take them, for example because of their own convenience or fear of responsibility. To be understood well, this is not about the moral obligation to make a career or get promoted. It is about the moral obligation of development, certainly associated with some professions, which implies career and promotions, the refusal of which seems to hinder this development. However, there are certain situations in which arguments based on moral obligations may speak for refusal. In some situations, this can be seen as a moral dilemma.
Let us use a specific example, again concerning a judge. On February 15, 1989, in the final phase of the decline of the Polish People’s Republic (PPR), the Sejm adopted a bill establishing the Foreign Debt Servicing Fund (FDSF).
It was supposed to be one of the state’s special purpose funds, the aim of which was to repay Polish foreign debt and to collect and manage financial resources allocated for this purpose. The real task of the fund was to buy foreign debts of the PPR on the secondary market at significantly reduced prices resulting from low rating of the debt. The operations of the Fund, due to inconsistency with international law, were carried out informally, often through “substitute”
people or companies. As a consequence, the operations of the Fund were often undocumented. This led to the fact that its managers in 1989–1991 appropriated public funds and caused losses of PLN 334 million. These events were called one of the biggest scandals in Poland.
The indictment against the people managing the Fund was sent to the court on February 19, 1993. However, it was returned to the prosecutor’s office for refiling. It was not re-entered until January 16, 1998. The material gathered by the prosecutor’s office was extensive and complicated. As a consequence, the first hearing did not take place until December 2000.
The presiding judge, B. Piwnik, conducted the proceedings in a very efficient manner. However, it turned out that the case could not be examined as it could be subject to the statute of limitations. If the statute of limitations taken to mean from the time the offence was committed, i.e. more than ten years earlier, criminal proceedings would have to be discontinued in August 2001.
It was not discontinued as a result of the interpretation that the provisions introducing the new Penal Code of 1997 set new rules for the statute of limitations, extending them for acts of indictment up to 15 years. According to the new rules, the statute of limitations would take effect in August 2006 in that particular case. When it seemed that the proceedings could be completed before that time, Judge Piwnik was appointed (on October 19, 2001) by the President of the Republic of Poland, at the request of the Prime Minister, to
the position of the Minister of Justice. She held this function until July 6, 2002.
Then she returned to the bench. However, the trial regarding the Fund had to be restarted in accordance with the applicable rules, and the first hearing of the new trail took place in September 2002.
This re-ignited the statute of limitations debate, which became the subject of acute political dispute. Some opposition parties formulated the accusation that the appointment of the judge to the position of Minister of Justice was a deliberate act calculated to lead to the activation of the statute of limitations.
As a consequence, after the next election, won by the previous opposition, on June 3, 2005, the law was passed that changed the rules. After the changes, the allegations in the discussed proceedings would be time-barred in August 2011. This solution was criticised in turn as affecting citizens’ trust in the state and as a form of statutory interference in the justice system in a specific case.
In fact, the discussed case was explicitly referred to in the justification of the draft act as an example of pathology, which should be counteracted. As a result of the legal question of the court regarding these doubts, the Constitutional Tribunal expressed its opinion in a judgment of October 15, 200879 which stated:
The reading of the justification for the draft amendment bill reveals that the case of the FDSF has become an important inspiration for the amendment of the Act. This part of the justification for amending the penal code should be very critically assessed from the point of view of the nature of the law-making process. Since legal regulations, and in effect legal norms, are of general and abstract nature, they should not be made for individual cases. However, the challenged provisions are of a normative nature, and the justification indicates that it is about counteracting certain negative phenomena.
In the end, however, the Tribunal did not share the view that extending the period of limitation was unconstitutional. This does not change the basis of criminal responsibility and only extends the time frame for the application of this responsibility. In the Tribunal’s view, the extension of the limitation period eight years on from the previous adjustment of those dates cannot be considered too frequent either, the more so because it was connected with an increase of statutory penalties for certain types of crimes. The Tribunal only observed that:
The reasoning of the Amendment Act reveals a dangerous tendency of criminal policy, manifested in legislative policy, extending periods of
79 Case No. P 32/06.
limitation of crimes, consisting in attempts to replace state failure in the area of administering justice with statutory changes, in particular limitation periods. By signaling this phenomenon, especially in connection with the above-mentioned political motivation for specific offenses specified in the explanatory memorandum of the Amendment Act, the Constitutional Tribunal emphasises that, in a democratic state, in accordance with the principle of division of power, neither executive and legislative power can substitute justice in the implementation of its functions.
Finally, after a long trial, on March 29, 2005, a court of first instance judgment was issued, sentencing the accused to imprisonment and fines. Then the verdict has been partially altered in the court of first instance as a result of cassation judgment by the Supreme Court. The case could be considered terminated after the verdict of the Court of Appeal, which was passed in June 2009, upholding sentences of the lower courts.
The above situation may be an example not only of a legal problem and a political conflict, but also of a moral one. Judge Piwnik at some point faced the choice of whether to accept the offer to take the position of Minister of Justice.
Of course, it is not in itself moral, but at the very least prudential, concerning preferences. The decision to take such a serious and political function is vitally important and probably difficult. However, it can be argued that, in these specific circumstances, it was also a moral choice. This is primarily visible as regards the effects of both options. On one hand, and obviously for every judge, their departure from court always involves the necessity of starting criminal proceedings from scratch, which entails a number of difficulties, including for those who have to wait for justice. This is particularly evident in complicated cases, where it takes many months to prepare the judge for the first hearing.
In this situation, there was also a clear risk that the statute of limitations would become activated. The possibility was significant and predictable, although there was no certainty that it would actually take place. On the other hand, refusal to accept a position and staying in court would have a negative effect of not being able to use one’s professional experience in managing the justice system, designing changes in legislation, etc. It should not be thought that this is a consequence affecting only the one refusing a new position or promotion, although of course this element comes to mind in the first place. It occurs in objective reality as an exclusion of certain actions in the public interest that could be taken by a particular person.
The occurrence of both effects is subject to uncertainty. However, greater uncertainty is visible in the case of the second option, i.e. taking up a new position. It immediately gives rise to the intuition to choose an option more certain in the sense of the predictability of its effects. Such a way of reasoning
would, however, lead to the absurd elimination of any risk arising from actions aimed at improving a given state of affairs. The problematic character of the whole situation is therefore not based on the difference in the predictability of the effects of each option. Rather, one can point to a conflict of values and a contradiction in the arguments for these options. These reasons can be reconstructed as follows. The existence of a kind of relationship between the judge and the case speaks for the refusal to accept the proposal above all. It certainly is the basis of social expectation that the judge will oversee the case
would, however, lead to the absurd elimination of any risk arising from actions aimed at improving a given state of affairs. The problematic character of the whole situation is therefore not based on the difference in the predictability of the effects of each option. Rather, one can point to a conflict of values and a contradiction in the arguments for these options. These reasons can be reconstructed as follows. The existence of a kind of relationship between the judge and the case speaks for the refusal to accept the proposal above all. It certainly is the basis of social expectation that the judge will oversee the case