Role-duties and relation-obligations as institutionalised ought institutionalised ought

Let’s start with J. Lemon’s views. In his classic work that initiated contemporary interest in moral dilemmas, he distinguished five types³ of moral dilemmas, though clearly indicated that other typologies may also be correct. The first type is conflict between principle and obligation, while the second is when duty conflicts principle. First of all, these two types will be useful in later considerations. Other types of dilemmas, as the author emphasises, are more complex. As the third, he indicates the situations in which “there is some, but not conclusive, evidence that one ought to do something, and there is some, but not conclusive, evidence, that one ought not to do.”⁴ The fourth involves situations where “either decision in effect marks the adoption on the part of the agent of a  changed moral outlook.”⁵ The fifth is “the kind of situation in which an agent has to make a decision of a  recognizably moral character though he is completely unprepared for the situation by his present moral outlook.”⁶ It seems that the last three types of moral dilemma do not concern institutionalised duties, but values, beliefs and attitudes. Therefore, in further considerations, they will be omitted, and they are mentioned only for the sake of completeness.

Therefore, the question arises as to how duties and obligations should be understood, and how they differ. With reference to the first concept, the author stated that:

Man’s duties are closely related to his special status or position. It nearly always makes sense to ask of a duty “duty as what?” The most straightforward case is that of duties incurred in virtue of a job: thus one has duties as a policeman, duties as headmaster, duties as prime minister or garbage-collector. In many societies, family relationships are recognized as determining duties: thus there are duties as a father, mother, son, or daughter (…) I do not think there are such things as one’s duties as a human being.⁷

3 Lemmon, Moral Dilemmas, pp. 150 et seq.

4 Ibidem, pp. 152–153.

5 Ibidem, p. 155.

6 Ibidem, p. 156.

7 Ibidem, p. 140.

On the other hand, with regard to the term obligation, he noted that:

If duties are related to a special position or status, which distinguishes the man holding the position or status from others, obligations on the other hand are typically incurred by previous committing action.⁸

In the greatest simplification, it can be said that duties are connected with performing certain social roles, while obligations exist within the framework of specifically shaped relations. This is why it is often very difficult to separate and identify them in a  given situation. For example, if we analyse children’s obligation to parents to help them in old age, then we can reach two conclusions.

First of all, we can treat it as children’s duty resulting from their role that could be described as being a child. Secondly, however, we can also claim that it is an obligation arising from the need to reciprocate the care that specific parents had given their children for many years. Both interpretations seem to be correct, although they have different consequences.

As mentioned, the first two types of moral dilemma highlighted by the author are about the inability to meet an obligation, or duty, and a general moral principle simultaneously. The first group of J. Lemmon’s cases was illustrated by the following example:

friend leaves me with his gun, saying that he will be back for it in the evening, and I promise to return it when he calls. He arrives in a distraught condition, demands his gun, and announces that he is going to shoot his wife because she has been unfaithful. I ought to return the gun, since I promised to do so-a case of obligation. And yet I ought not to do so, since to do so would be to be indirectly responsible for a murder, and my moral principles are such that I regard this as wrong. I am in an extremely straightforward moral dilemma, evidently resolved by not returning the gun.⁹

However, in relation to the second group of cases, he indicates that “duty conflicts with principle every time that we are called on in our jobs to do things which we find morally repugnant.” The essence of both types of dilemmas is therefore the conflict between institutionalised ought and moral principle.

For the author there are two basic ways to solve such dilemmas. First, we can take a kind “higher-order principle” like “Always prefer duty to obligation” or

“Always follow moral principles before duty or obligation.” Second, “we may have in advance a complex ordering of our various duties, obligations, and the

8 Ibidem, p. 141.

9 Ibidem, p. 148.

like-putting, for example, our duties as a citizen before our duties as a friend.”¹⁰ Legal and judicial ethics literature has many proposal to resolve this tension between institutionalised and “pure” ought. It is impossible in this book to discuss the whole debate around the issue, hence further discussion presented in this section develops both views indicated by J. Lemon, with reference to the most characteristic concepts.

It should be noted that, on the basis of legal and judicial ethics, the starting point of many disputes in this respect is usually the view that in moral conflicts institutionalised ought take precedence over pure or general moral oughts. According to this view, if the ought resulting from a professional role or professional relations cannot be carried out simultaneously with the moral ought, the first one takes precedence. So, even if it happens that the subject faces a choice between the oughts of both types, it will not be a moral dilemma in the strict sense. An institutional ought creating such a conflict at the same time solves it by having priority. Of course, a few questions arise in connection with such a view, for example, what are the reasons for the priority of institutional oughts? In addition, one can also ask whether adopting such a  view indeed removes moral dilemmas from a professional perspective. Both questions will be present in further considerations in this section. However, when it comes to the first of them, it should be said that – in reference to the views of J. Lemon – the reasons can be two-fold.

First of all, they can refer to the universal perspective of practical reasoning, which gives institutional reasons the indicated rank. In this approach, the priority of these reasons would, in principle, apply to all professional roles in the social division of labour. It would thus not be anything specific to judges’ ethics or legal ethics. Secondly, they can also be justified from a particular perspective of specific institutions. In particular, they may arise from the specificity of legal professional roles and their exceptional position within the legal framework.

It seems that these perspectives are not always clearly separated. The first one is answered by J. Raz’s considerations regarding the notion of the exclusionary reason, which show how institutionalised duties have priority over other practical reasons. The second way of thinking can be found in B. Wendel’s thesis that the professional role of a lawyer is special and associated with fidelity to law, and therefore also the priority of duties and obligations arising from it.

Interestingly, in both cases we can refer to supportive arguments from conceptual necessity, which would eliminate the existence of moral dilemmas, for we could only speak of prima facie dilemmas, namely situations that would be dilemmas if there were no reasons for the priority of institutional ought in

10 Ibidem, pp. 150–151.

the case of conflicts of ought’s. However, this priority is not obvious and results from certain reasons that are formulated at a  different level than the other reasons for each of the options. By isolating this level, one can speak of prima facie as well as meta-dilemmas, whose relation is that thanks to resolutions at the level of meta-dilemma one cannot speak in a  professional sphere about moral dilemmas in the strict sense, but only prima facie dilemmas. Thanks to resolutions at the level of meta-dilemmas, prima facie moral dilemmas turn out to be decidable and, as a consequence, they can be included in one of the other groups of practical problems. This will become more apparent in discussion of the above-mentioned authors’ concepts.

Before getting at that discussion, it is worth noting that J. Lemmon concludes his arguments by emphasising the significance of dilemmas for moral life. At the same time, he ascribes them a specific significance by regarding them as less of a tragedy or a no-way-out situation, and more of an opportunity. He points out that, since a subject is able to cope with the choice they face – and in principle, dilemmas are in the author’s opinion, resolvable problems, although extremely difficult ones – they will also progress morally. Dilemmas compel us to a kind of moral activism, to reflect, and often to change our beliefs. In this respect, he uses a metaphor:

There may come a point in the development of a painter, say, or a composer, where he is no longer able to go on producing work that conforms to the canons of composition which he has hitherto accepted.¹¹

It could be added that a dilemma is such a situation in which by participating in a  specific practice, one is confronted with the question about validity of institutional duties guiding one’s actions. They entail not only the necessity to choose, but also to look at the functioning of institutions themselves. Although they always require an individual choice, they attract attention to the system in which they appear. So even if they turn out to be just prima facie dilemmas, thinking about many situations as dilemmas has a deep moral sense. That is maybe another argument for considering using moral dilemmas in legal education.