Second dilemma: retrospective and prospective responsibility of role

The play Ubu  and the Truth Commission by Jane Taylor and Wiliam Kentridge, in coproduction with the Handsping Puppet Company,⁶⁹ discusses the ills of the judiciary in the public sphere. The protagonist is Ubu – the greedy king from Alfred Jarrry’s play (Ubu Roi ou les Polonais) – transferred to the reality of the Republic of South Africa of the transformation period. Ubu King (functioning in literature as a symbol of abuse of power) is, in the mentioned play, a representative of Afrikaners, who have just lost power. Ubu, as a police officer, appears before Truth and Reconciliation Commission. To avoid punishment, he first considers destroying documents and photos that convict him, then of claiming post-traumatic stress disorder or burdening someone else with his guilt. Eventually, Ubu, justifies his actions before the Commission by the necessity to fulfil duties, saying in his defence: “These things, they were done by those above me, those below me, those beside me. I too have been betrayed!

I knew nothing.”⁷⁰ In the last scene of the play, Ubu (with the other characters in the play) swims away towards the sunset. Ubu symbolizes both South African police officers seeking amnesty and representatives of the machinery of the regime. Various strata of the receding apparatus and the attitude to them by the Truth and Reconciliation Commission are illustrated in the play by the figure of a three-headed hound called Brutus:

68 Opałek, Wróblewski, “Niemiecka szkoła historyczna,” p. 289.

69 Ewa Dynarowicz, “Komisja Prawdy i Pojednania w kulturowym repertuarze nowej RPA:

Południowoafrykański dramat po apartheidzie (1996–2002),” in Kalejdoskop Afrykański. Problematyka tożsamości w literaturach Afryki przełomu XX-XXI wieku, ed. Renata Diaz-Szmidt, Małgorzata Szupejko, (Warszawa: Oficyna Wydawnicza ASPRA-JR, 2012), pp. 210 et seq.

70 Quote from Dynarowicz, Komisja Prawdy i Pojednania, p. 211, Eng. version from Helen Gilbert, Postcolonial Plays: An Anthology (New York: Routledge, 2013), p. 45.

JUDGE: in the matter of the state versus Brutus, Brutus, and Brutus: it has been determined that there is unequal culpability, and we thus hand down, separately, three distinct sentences.

With regard to the first case: a head of political affairs cannot always foresee how his vision will be implemented. We thus exonerate you, and retire you with full pension.

With regard to the head of the military:

there is no evidence to link you directly to these barbarous acts. Nonetheless, an example must be made of you, or who knows where we’ll end up.

You are thus sentences to thirty years in the leadership of the new state army.

Finally, to the dog who allowed himself to become the agent of these ghastly deeds:

you have been identified by the families of victims; you have left traces of your activities everywhere. We thus sentence you to two hundred and twelve years imprisonment.⁷¹

The play is an example of criticism of Truth and Reconciliation Commission activities. The fundamental charge concerns the manner of meting out justice to those responsible for apartheid. Within legal discourse, a strong critical voice about the Commission’s activity is heard from Scott Veitch.⁷² According to him, the image of law as a  system that creates responsibility is false. The Scottish philosopher of law says that what contributes to this, among other things, is the legal discourse forming a mode of action within an institution that blurs the responsibility for a decision.⁷³ In a similar vein, though more balanced, is the

71 Quote from Ewa Dynarowicz, Komisja Prawdy i Pojednania, p. 211, Eng. version from Helen Gilbert, Postcolonial Plays: An Anthology, p. 44.

72 Scott Veitch, Law and Irresponsibility: On the Legitimation of Human Suffering (Routledge:

Cavendish, 2007).

73 Ibidem, pp. 29–34.

view of Peter Cane, according to whom the causes of the above mechanism may be traced in legal discourse which concentrates on retrospectively understood role responsibility.⁷⁴ To bring the problem into sharper focus, I will discuss how role responsibility is problematised in legal discourse.

One of the first authors to introduce the construct of role responsibility to legal discourse was Herbert Hart.⁷⁵ His book Punishment and Responsibility gives five types of responsibility: role responsibility, causal responsibility, liability responsibility, moral responsibility, and capacity responsibility. It is worth remarking that, at the turn of the 1960s and 70s, many works were devoted to responsibility in law, among others by Lon Luvois Fuller and Alfa Ross. Yet it is in Hart’s work that the most interesting construct of role responsibility is presented. The theses established by the Oxford philosopher of law are used by Mark Bovens in The Quest for Responsibility. Accountability and Citizenship in Complex Organisations. Bovens slightly modifies Hart’s proposal, by distinguishing five kinds of responsibility.⁷⁶

The first kind is responsibility as cause, thus it is based on the cause-effect relation and its important element is guilt. The second perspective shows normative responsibility, which assumes accountability for a  certain action of lack of it. The third view correlates with the second. Holding someone responsible in a legal, moral or political sense assumes the causative power of an individual. This view shows responsibility as capacity. The fourth view presents responsibility as a task. This proposal suits Hart’s construct of role responsibility.

The last distinguished view is responsibility as a  virtue, a  character trait. In this sense, we speak of responsibility as a disposition for a certain action. This view expresses a positive judgment of a person who acts. According to Bovens, perceiving responsibility as a virtue is completed by task responsibility. Since task responsibility (close in meaning to role responsibility) focuses on the function performed in the public sphere, responsibility as virtue stresses the significance of a personal disposition for a course of action within a performed role.

Also vital for presenting the importance of role responsibility are the findings of Peter Cane, laid out in Responsibility in Law and Morality.⁷⁷ This Australian philosopher of law, who problematised role responsibility, draws attention to

74 Peter Cane, Responsibility in Law and Morality (Oxford-Portland Oregon: Hart Publishing, 2002), p. 30.

75 Herbert L.A. Hart, Punishment and Responsibility. Essays in the Philosophy of Law (Oxford:

Clarendon Press, 1968).

76 Mark Bovens, The Quest for Responsibility. Accountability and Citizenship in Complex Organisations (Cambridge: Cambridge University Press, 1998), pp. 24–25.

77 Cane, Responsibility in Law and Morality, p. 30.

its two assigned meanings. In order to do that, he distinguished retrospective and prospective responsibility. The former, past-oriented, is connected with sanction, the latter emphasises moral duty that is related to being responsible for somebody or something.⁷⁸ Retrospective responsibility is negative by nature, whereas the prospective form is positive and future-oriented. Prospective stems from imposing duties, and retrospective from breaching them.⁷⁹ Prospective responsibility anticipates action, thus it establishes taking responsibility for performing a certain task in the future. Retrospective responsibility above all concerns past actions and is based on a sense of guilt. It may be attributed by division into equity-based responsibility, for a bad deed, and tort responsibility, for a deed breaching a norm. Cane uses also the term “historic” as a synonym for “retrospective,” whereas the prospective view of responsibility is associated with duty based on a role. The obligation may follow from duties imposed by a legislator or result from one’s social role. Cane, showing the difference between retrospective and prospective role responsibility, indicates the possibility of evaluating the behaviour of a judge who justifies a sentence negligently. Role responsibility in the retrospective view operates with such concepts as fault, ascribing responsibility, and norm that authorises calling someone to account.

Role responsibility in the prospective view gives us conceptual categories that concern value judgments, for instance ethical and aesthetic judgments. It is by applying such concepts as taste, tact we may qualify a judge’s behaviour in categories that elude retrospective responsibility, which is deeply rooted in the grammar of analytical philosophy.

According to Cane, legal discourse is dominated by retrospective responsibility. This researcher holds it as a mistake,⁸⁰ and claims there should be a place for both retrospective and prospective responsibility. On one hand, legal liability looks backwards and assumes (potentially) holding someone responsible for a deed, while on the other hand we may understand responsibility as an idea which sets obligations and duties for the future. Arguing for such a solution, Cane thinks that linking responsibility with sanction only: “tends to conceal the importance, both within the law and elsewhere, of what I shall call ‘prospective responsibility’”.⁸¹

78 Filek, Ontologizacja.

79 Christopher Kutz, Complicity. Ethics and Law for a Collective Age (Cambridge: Cambridge University Press, 2000), pp. 49–53.

80 Cane, Responsibility in Law and Morality, p. 31. A similar diagnosis in Polish literature is given by Michał Peno, see: “Prawna odpowiedzialność z tytułu pełnionej roli społecznej,” Acta Universitatis Lodziensis. Folia Iuridica 2015, 74, p. 42.

81 Cane, Responsibility in Law and Morality, p. 30.

Cane, when drawing these conclusions, shows role responsibility in three aspects. The first is protective responsibility, founded on the retrospective view.

The following two, productive and preventive responsibilities, are covered by the prospective view.⁸² Productive responsibility aims at producing good outcomes, whereas the goal of preventive responsibility is to avoid bad outcomes. Cane explains the difference between protective and preventive responsibilities by indicating that harming someone and being responsible for that differs from not taking action to prevent their harm.⁸³

According to Cane, responsibility that requires from those taking it to undertake positive actions lays the foundations of the responsibility for nonfeasance.⁸⁴ In the presented viewpoint, role responsibility is oriented to delivering good outcomes (the productive aspect) as well as avoiding bad outcomes (the preventive aspect) and also being held responsible for harm done (the protective aspect).⁸⁵ Such a concept of role responsibility assumes the formation of the role holder’s identity based on recognizing that, by acting, they are accountable for this obligation.

The indicated difference between retrospective and prospective responsibilities reveals a  different image of the role of the lawyer. The retrospective view of role responsibility is connected with the concept of fault.

Evaluation of a jurist’s work is done post factum, and is based on compliance with binding legal regulations. Such a  view in the interesting way shows the prospective view of role responsibility. The view connecting responsibility with obligation resting on role focuses on society’s expectations. Hence, we can understand role responsibility as a form of answering an obligation, formulated in the public sphere for lawyers. The prospective view of responsibility not only allows jurists’ actions to be shown as ethically and politically engaged conduct, but also reveals the significance of the personal responsibility of the role’s performer for an action which influences the image of the institution in public sphere.

The importance of the above dilemma may be measured by how a person’s responsibility in a role is understood. The more the scope of responsibility is determined by an external factors, the closer it is to the retrospective view.

Responsibility is measured by adaptation to binding law. But if we understand responsibility as a task to be fulfilled by a role performer, moral responsibility is no longer something illusory. In this light, the actor is no longer an impersonal

82 Ibidem, pp. 31 et seq.

83 Ibidem, pp. 31–32.

84 Ibidem, p. 32.

85 Classification according to Peter Cane, see: Responsibility in Law and Morality, pp. 31–32.

performer in a  given institution. Instead, they become responsible for the institution’s image, explaining how law works and their own decisions to external observers. Hence, the player’s responsibility increases since they cannot hide behind a  safe point of reference but becomes a  user of the institutional structure, a person from whom decision-making is expected.

4.3.4. Third dilemma: organisational and personal responsibility

The third dilemma of choice can be formulated in a following way: when speaking of moral responsibility, shall we put the stress on the person who makes a decision or on the institution within which the lawyer acts? The choice of organisational responsibility assumes that responsibility for a  decision lies with institution of which one is a  member, whereas acceptance of personal responsibility is reduced to acknowledging that the role player is, by making a decision, responsible for it.

The first solution – recommended by supporters of the standard view – opts for organisational responsibility. Bradley Wendel, a proponent of this view, presents an inclusionary solution assuming the adaptation of personal morality to the requirements of the role and its calls.⁸⁶ Thus, one may diminish (weaker thesis) or preclude (more radical thesis) the conflict between personal and professional morality.

Theoretical grounds for the application of this inclusionary mechanism are provided by the concept of “exclusionary reasons” by Joseph Raz. In Practical Reason and Norms⁸⁷ he distinguishes between first-order and second-order reasons for action. The former are reasons to carry out some act, while the latter are to act for a reason. They may take the form of a positive argument (reason to act on the most important first-order reason) or negative (reason not to act for some reason). The latter is called by Raz the exclusionary.

Exclusionary reason is therefore a reason not to act on a certain reason. The consequence of using the analysed concept is the elevation of some reasons over others. According to Raz, the application of exclusionary reasons is

86 Alice Wolley, W. Bradley Wendel, “Legal Ethics and Moral Character,” The Georgetown Journal of Legal Ethics 20/2010, No. 38, pp. 2, 36–37. More on this subject see: Kaczmarek, Tożsamość prawnika, chapter 2.

87 Joseph Raz, Practical Reason and Norms (Princeton: Princeton University Press, 1990), Joseph Raz, Autorytet prawa, trans. P. Maciejko, intro. J. Kochanowski, N.E. Simmonds (Warszawa: Dom Wydawniczy ABC, 2000), pp. 32–36.

typical for professional roles.⁸⁸ Therefore, in the proposed view performing a  role is an exclusionary reason for acting on the grounds of institutional morality.

The undeniable advantage of the standard stance is that it disburdens the lawyer when undertaking cases. The lawyer, when performing a role, must often carry out actions with which they may not agree as a citizen. In this situation, the argument of the “performed role” allows the lawyer to distance themselves from the action. The strength of this argument rises in a situation when a lawyer engages in actions which they personally either do not support or regard as worthy. The claim “this is not my action but that of the role which I play”

allows the lawyer to abrogate responsibility for their professional activities.

Maintaining distance to the accused or the victim may be treated as a means allowing for better confrontation with a reality concealing stories full of pain, suffering and evil done.

The latter of the mentioned solutions is supported by proponents of the moralist view, including among others Allan C. Hutchinson and David Luban.⁸⁹ Hutchinson, in Legal Ethics and Professional Responsibility draws attention to the costs of choosing the standard solution from the perspective of the private life of the role player. According to the Canadian researcher, the profession of lawyer is one that has a strong impact on daily life, among other things because of the great amount of time that this profession requires. Hutchinson claims that if we accept that the role player in their professional role perpetrated acts that they by no means accept as citizens, this may poison the lawyer’s private life.⁹⁰

According to Luban, however, the inclusionary solution offers an institutional excuse for shunning responsibility, for it assumes that moral responsibility for actions taken lies with the role and not the person who acts.⁹¹ Luban is also critical of the construct of exclusionary reasons, the grounds for this criticism being that they leave no room for correction, since the conflict between first-order and second-first-order reasons is excluded, hence it is impossible to question institutional decisions. There is no room for legal disobedience to law.⁹² Luban claims that, if we agree to the solution in which the role player cannot think in

88 Raz, Practical Reason and Norms, p. 144. See also: Paweł Skuczyński, “Problem zakresu odpowiedzialności moralnej profesjonalistów i jego zastosowania w etyce prawniczej,” Acta Universitatis Lodziensis. Folia Iuridica 74, 2015, pp. 35–37.

89 Luban, Lawyers and Justice. An Ethical Study, passim; Hutchinson, Legal Ethics and Professional Responsibility, pp. 53 et seq.

90 Hutchinson, Legal Ethics and Professional Responsibility, p. 55.

91 Luban, Lawyers and Justice. An Ethical Study, p. 116.

92 J. Zajadło, “Nieposłuszeństwo sędziowskie,” Państwo i Prawo 2016, No. 1, p. 19.

moral categories about the acts they carry out, it is unlikely that they will think in these categories about the rules on the basis of which they act either.⁹³

The described mode of action is particularly dangerous in legal institutions and professional self-governments, since it makes responsibility hard to localise.

The problem was analysed in an interesting work by Luban, Alan Strudler and David Wasserman, entitled Moral Responsibility in the Age of Bureaucracy.⁹⁴ According to the authors, there are four attitudes to the dilemma of the organisational vs personal responsibility of the role player.⁹⁵ The first assumes that moral responsibility can hardly be ascribed to the lawyer’s action within an institution, whether in the organisational or personal perspective. The second approach claims that moral responsibility lies with the institution, and the third that it is only a matter for the individual playing a role. The fourth way recommended by the authors of Moral Responsibility in the Age of Bureaucracy assumes an extension of personal responsibility so that moral responsibility relies also on the institution. In that way, opposition to organisational-personal responsibility is resolved by the inclusion of both dimensions.

The starting point for Luban, Strudler and Wasserman is the statement that people acting in organisations and professional groups often lack the conscience in the role they play, with a sense of moral responsibility for their actions and their results being absent.⁹⁶ According to the authors, there are two reasons for that, fragmentation of knowledge and the choice of organisational responsibility.⁹⁷ The text criticises the solution oriented towards organisational responsibility and the approach recommending uniquely personal responsibility. However, the main axis of the criticism concerns the attitude which favours organisational responsibility. The grounds of this critique are the possibility of speaking about an institution as a moral subject, with which moral responsibility lies. Can an institution feel shame or guilt, ask the authors of Moral Responsibility in the Age of Bureaucracy.⁹⁸ According to Luban, Strudler and Wasserman, there is a fallacy in presenting an institution as a moral subject because, when thinking about an institution, one involuntarily directs attention to the people who work there.

To justify this view, the researchers appeal to the analogy of a wall; just as the wall is built of bricks, organisations, or professional groups, are made of people that perform certain activities within them. Hence, it is impossible to speak of

93 Luban, Lawyers and Justice. An Ethical Study, p. 121.

94 David Luban, Alan Strudler, David Wasserman, “Moral Responsibility in the Age of Bureaucracy,”

Michigan Law Review 1992, vol. 90.

95 Ibidem, p. 2365.

96 Ibidem, p. 2355.

97 Ibidem, p. 2356.

98 Ibidem, p. 2369.

organisational responsibility without noticing the individuals. For this reason, according to the authors, it is also necessary to take into account the personal dimension of moral responsibility,⁹⁹ and to this end they arrive at the notion of extending personal responsibility. This includes five duties:¹⁰⁰

1) Investigation. This assumes that an individual is responsible for their gaining knowledge on the potential and real consequences of their decisions, and how they will be used by other members of the practice.

2) Communication. This assumes the possibility to hold morally accountable

2) Communication. This assumes the possibility to hold morally accountable