The seventh and the last of the dilemmas discussed refers to the hierarchisation of professionally significant values, together with a determination of the scope of a lawyer’s or judge’s axiological universum.
This dilemma is therefore an aspect of the correlated processes of ordering and preferring values within this universe, such processes being both quantitative (scope) as well as qualitative (hierarchy). As an example of the above correlation, we may take the cited opinions of Radbruch, who claimed that fundamental legal values make up a tri-modal set, in which the highest place is taken by justice, followed by, respectively: “legal certainty” and the “purposiveness of the law in serving the public.”163 The noted difference between the universes of values that are typical of legal professions in the spheres of public or private law is also manifest in defining their varied scopes, as well as in the divergent results of preferences for values arrived at in “the field of axiological consciousness” of a judge, prosecutor, advocate, etc.
In the context of previous analyses, the novelty is: are values from a lawyer’s or a judge’s axiological universe mutually comparable, namely can they form a consistent hierarchy? It is, therefore, a question about the practical possibility of solving multiple axiological dilemmas revealed in professional legal life. In this respect, I propose a division between the possible stances into “optimistic”
163 Gustav Radbruch, “Ustawowe bezprawie i ponadustawowe prawo,” in Filozofa prawa (Warszawa:
PWN, 2009), pp. 249–250.
and “pessimistic.” In the light of the former, it is possible to solve the conflict of values, which means that the values professionally relevant to a judge, adviser, etc., can be arranged in hierarchical order.
Presumably, the most representative example of such a theory is the Christian version of the law of nature. In the philosophy of law, optimistic views also include R. Dworkin’s concept, since in “hard cases” the judge-Hercules is always able to make the only just decision.164 This group also comprises the phenomenological concept, in which the hierarchy of a priori existing values is each time determined in the act of their preference.165
In the light of pessimist views, however, axiological dilemmas are insoluble due to the immanent incommensurability of values. This group includes, in particular, the abovementioned concept of pluralism of values presented by I. Berlin. Speaking of pessimism – according to S. Wojtczak, the crucial point of Berlin’s pluralism is the thesis that “we are fated to make choices, and every choice may entail a harm that cannot be repaired.”166 At the same time, according to Berlin: “the world that we encounter in ordinary experience,” in which
“we are faced with choices between ends equally ultimate, and claims equally absolute, the realisation of some of which must inevitably involve the sacrifice of others.”167 Likewise, according to the philosopher there is no common measure, no single standard for a hierarchisation of values that would be universally valid.
B. Polanowska-Sygulska points out that, in situations of axiological dilemma, there is no possibility of referring to some supreme criterion that would allow settlement. Thus, Berlin’s vision of axiological reality is one in which “one cannot have everything.”168
In a similar view, Ziembiński writes about constitutional values: “Naturally, it would be most beautiful if the constitution declared totally unrestricted freedom of economic activity, totally unbound use of property, and the equality of citizens, full social security and a wide range of social allowances – but it has to be acknowledged that realisation of these values is collusive, and simultaneously, a declaration of their unreserved realisation would make
164 Dworkin writes: “I have invented, for this purpose, a lawyer of superhuman skill, learning, patience and acumen, whom I shall call Hercules. I suppose Hercules is a judge in some representative American jurisdiction” after: Dworkin, Taking Rights Seriously, p. 132. Critically about the theory of one right answer, from the perspective of the values incommensurability theory: Wojtczak, O niewspółmierności, pp. 418 et seq.
165 Cf. Adam Węgrzecki, Scheler (Warszawa: Wydawnictwo Wiedza Powszechna, 1975), pp. 161–168.
166 Wojtczak, O niewspółmierności, p. 62.
167 As cited in: https://plato.stanford.edu/entries/berlin/, accessed on 12th June 2017.
168 Polanowska-Sygulska, Pluralizm wartości, p. 64.
a pretty naïve demagogy.”169 Similarly, according to Berlin, full liberty may conflict with total equality, and justice with mercy etc.
3.12. Summary
This short review, leading through seven increasingly detailed dilemmas to the question about a lawyer’s or a judge’s original “anti” or “pro” axiological orientation, by no means extinguishes the abundance of issues that it is possible to discuss. In conclusion, it is worth adding that legal dilemmas concerning values may, in the greatest simplification, have an inner nature (intrapersonal), or external (interpersonal).170 In the former case, they concern values “visible”
in the individual field of a lawyer’s or a judge’s axiological consciousness, in the latter, they encompass values covered by axiological discourse taking place in corporations of advocates, prosecutors, judges, but also society in general. In this vein, Pałecki stresses that “The problem of the occurrence (or non-occurrence) of some common values and their similar hierarchy among various categories of people making, applying, enforcing and/or abiding by the law, namely the problem of the subjective convergence of the axiological basis of law (or the lack of it), causes great inconvenience.”171 It is interesting that a happy resolution of the intrapersonal and interpersonal axiological dilemmas of a judge, advocate or bailiff is of key importance for maintaining their identity as performers of a given professional role.172
Naturally, the multi-faceted nature of the dilemmas outlined goes way beyond the dichotomy indicated, and is subject to original characterisation on the basis of each of the noted pro-axiological stands. For instance, Polanowska-Sygulska, in the context of Berlin’s pluralism, points out that there are three levels on which we may experience conflicts of values. First, they may appear within a given morality between different values. An example can be the collision between an advocate’s obligations (e.g., towards the client and the court) which are impossible to meet simultaneously. Second are conflicts within values, often complex in structure, which can make their components, or alternative interpretations, collide.173 In the case of legal dilemmas, this may mean, e.g., divergent interpretations of constitutional
169 Ziembiński, Wartości konstytucyjne, p. 58.
170 Cf. Pietrzykowski, Etyczne problemy prawa, p. 32.
171 Pałecki, “Zmiany w aksjologicznych,” p. 22.
172 Cf. Kaczmarek, Tożsamość prawnika.
173 Polanowska-Sygulska, Pluralizm wartości, p. 65.
values such as justice (commutative, distributive), security (legal, social), etc. But different interpretations of values on the grounds of the dogmatics of particular branches of law (e.g. security may be differently understood in criminal law and labour law may also arise). According to Sygulska, the third level of dilemmas concerns tensions between comprehensive “life models.”174 Therefore, values may be differently ordered by a lawyer or a judge preferring liberal, Christian, and other “life models.”
In a similar context, Ziembiński notes: “if different creeds meet and members of society have different intuitions as to their main values, it is easy to have deep conflicts and aggression, despite calling for tolerance and respect in axiological pluralism. In turn, disputes begin over understanding and the admissible limits of tolerance and pluralism, disputes the settlement of which requires meta-axiological assumptions in a class of their own.”175 Certainly, the legal axiological dilemmas outlined come to the fore in all arenas of the process of realising law, starting with its creation,176 and these dilemmas can be experienced by lawyers acting as legislators (namely the “real lawmakers”177). However, it may be assumed that the practical dilemmas of judges, advisors, etc. are most likely to occur in the phase of the application of the law. Such dilemmas may result from a collision of “legal values,”
fundamental to particular branches of a legal system, such as “substantive truth” and “adversarial conduct” in criminal procedure. For that reason, one has to pay attention to potential “inter-branch” dilemmas referring to the interpretation and hierarchisation of values, being the effect of divergent axiological perspectives of particular legal dogmatics (such as “material responsibility,” which is understood in one way in Polish civil law and another in labour law178). Neither, in daily practice, can a lawyer or a judge avoid the abovementioned dilemmas concerning the axiological basis of professional ethics resulting from, i.a., the specificity of the spheres of public and private law as indicated. Hence, it is obvious that lawyers’ or judge’s dilemmas may concern any part of the universum of professionally significant values that is visible in their field of axiological consciousness. The complexity of the above picture surely gives strong arguments to proponents of the concept of the incommensurability of values. Some comfort to the adherents of an ordered
174 Polanowska-Sygulska, Pluralizm wartości, p. 66.
175 Ziembiński, Wartości konstytucyjne, p. 16.
176 On the role of values in the law-making process see Biernat, Legislacja, pp. 22–31.
177 On the distinction between a real and formal legislator see Michał Błachut, Włodzimierz Gromski, Jacek Kaczor, Technika prawodawcza (Warszawa: Wydawnictwo C.H. Beck, 2008), p. 5.
178 Cf. Sebastian Koczur, Aksjologia odpowiedzialności materialnej pracownika (Warszawa:
Wydawnictwo C.H. Beck, 2016), p. 24.
and hierarchised universum may be brought by codes of professional conduct, petrifying the hierarchies of values typical of particular legal “professions of public trust”.179 Ethical codes are, therefore, in the interpretation presented, corporative “road signs” indicating the desirable direction for settling axiological dilemmas that touch judges, advocates or prosecutors.180
179 Cf. art. 17. Section 1 of the Constitution of the Republic of Poland of 2nd April 1997, Journal of Laws of 1997, No. 78, item 483, as amended.
180 Cf. Pieniążek, Etyka sytuacyjna prawnika, p. 279.