Courage in Judge's Service. Norm Or Exception?
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Themis competition - 2017 Semi-Final D Judicial Ethics and Professional Conduct COURAGE IN JUDGE’S SERVICE. NORM OR EXCEPTION? Team Poland Paulina Korfanty-Pisana Radosław Skwira Małgorzata Żmijewska under supervision of Judge Artur Ozimek I. Introduction. Courage and ethics. The dispute concerning courage in judges’ ethics should be preceded by setting up common ground in defining courage and the possible area, in which it could be applied - as in order to clarify the subject of the argument. If so, first of all a potential definition of courage should be specified and the role it might play in judges’ service, hence it must be verified, whether there is a need to distinguish judges’ ethics from those concerning the rest of the society. It seems obvious, that any actions undertaken by judges are defined by law, which leads to a question, if there is any space for ethics and- furthermore - courage in their course of service, as everything they do in the courtroom is strictly marked out by the boundaries of law? Without further ado, it must be stated, that it is commonly supposed, that various professions have their unique codes of dealing with problems that occur in their particular fields of interest. David Luban clearly states1 that the so called “role morality” collides with common morality, as actions, that are justified for lawyers might not be considered right for people not dealing with legal issues. This concerns to a greater extent attorneys, as their role is much more biased and polarized, however once it is stated that a specific code of ethical regulations applies to them, it should come as a result, that also judges may need a particular book of rules concerning their service. In his article Luban presents a concept of four stages for justification of one’s actions as referred to role morality. First, individual actions should be justified by reference to general rules, second, rules should be justified by social roles, third, social roles are to be justified by institutions, by which they are set up and fourth, institutions are justified by the needs of common morality. Going further on, Benjamin Freedman fully confronts2 the phenomenon of professional morality with ordinary morality, as he underlines the confidentiality of some professions, which couldn’t be possibly considered as moral in the common way. Therefore he defines role morality as acquired and justified by nature and needs of practice. Since some professional actions cannot be called as moral due to their contradiction with standard values of society’s everyday life, it has to be stated, that they are immoral. Therein lies the rub - such actions couldn’t be possibly acknowledged from the deontological point of view, so immorality would have to be defined either as apparent or as coincidental. Freedman than states, that those actions are justified by society’s approval due to their utilitarian values. He indicates, that professional morality forms a continuum of actions of certain moral quality- from smallest to greatest significance. In this continuum people’s deeds could violate: social conventions, 1 David Luban “Professional Ethics” R. G. Frey and Christopher Wellman (eds.) A Companion to Applied Ethics (Blackwell Companions to Philosophy) 2003, p. 583-596 2 Benjamin Freedman “A Meta- Ethics for Professional Morality” Ethics 89 (1978), p. 1-19 customs, moral law, statutory law. Each violation- considered as a small contravention - of those stages by a professional, can be justified in the eyes of the society. Without stating, whether judges are morally allowed to do more or less as compared to other lawyers, it is very clear that a particular system of ethics concerning judges does exist. Bearing it in mind, it should be defined, what courage is indeed. From the linguistic point of view, the word “courage” - in Middle English “corage”, comes from Anglo-French “curage” as a noun formed from “quer”, earlier “coer”, meaning “heart”, which derives from the latin “cor”. The word “courage” means a mental or moral strength to venture, persevere, and withstand danger, fear, or difficulty. Of course it would seem impossible to present a unified definition of courage, common for all European countries, in respect of their experiences and sentiments, even referring to dialectical materialism - one cannot find the definition of a particular term without the context and basic questions of philosophy, that impose a certain way of understanding3. We simply cannot find one universal significatio without choosing a particular modus loquendi. Since we are dealing with ethics, should we now confront a potentially universal definition of courage in the field of philosophy. According to a dictionary, “courage” is one of the four Greek cardinal virtues along with wisdom, temperance, and justice4 or nowadays - in the widest contest it can be simply defined as virtue - and in more restrictive way - it can be denoted by the efficiency in facing dangers in general, and particularly those during the war5. At this point it should be stated with whole firmness, that courage could be defined in various ways, depending on the very concept of approaching ethics. Without any doubt courage could play one of the leading roles as far as virtue ethics or the aretaic ethics are concerned, as they are set on the concept of courage per se. It could be said indeed, that looking from this point of view and considering courage as an important feature of judge’s services might seem autothematic, since sign of equation could be put between the moral system and courage, which constitutes it. But courage could possibly mean something else, if ethics are about to be derived from the concept of natural law, according to which universal and fundamental rights are inherent by human nature. Further on, it also depends on what would be the source of the law- nature itself, concept of god, transcendent source or the human reason? If we consider utilitarianism, must we define exercising the law - or justice in general - as useful for certain people, yet still having sense in the frames of system of common values, being legitimized by something more than temporary helpfulness. In this case, courage would definitely be useful. 3 See also Lothar Kreiser “Deutung und Bedeutung. Zur logischen Semantik philosophischer Terminologie” Akademie- Verlag Berlin 1986, p. 17-19 4 Dictionary of Philosophy and Religion, Eastern and Western Thought by W. L. Reese, New Jersey Humanities Press 5 Enciclopedia Filosofica Conrad- Martius Gaunione G. C. Sansoni Editore, Firenze 1967 On the other hand - as far as deontological ethics are concerned, understood as fulfilling one’s duties and obligations, only the actions based on rules would be considered morally acceptable. But in these circumstances all moral dilemmas are to be solved without the human factor and without any doubt. So is there any space left for courage? Going on with the history’s timeline, if Immanuel Kant’s ethics based on humans’ freedom and dignity are to be dealt with, bearing in mind his maxims- the Formulas of Universal Law (Allgemeines-Gesetz-Formel), of the End in itself (Reich-der-Zwecke-Formel) of the Law of Nature (Naturgesetzformel) and of Humanity (Menschheitszweckformel) - there might be plenty of space for courage. Presumably it would be less external- not facing potential enemies, but courage to think, consider, judge and solve problems. In these terms might it be a mean to fight with one’s own weaknesses. A brief glance at different philosophical schools and systems combined with national and even personal experiences allows to put forth a statement, that courage might be whatever we want it to be or however we define it. For one judge a courageous action might be exercising the law contrary to his believes, yet in accordance to the law, for other it might be just the opposite - acting praeter legem only to fulfill his or hers own justification for a particular case. Since it is completely obvious, that no universal and common definition of courage can be held, a definition shared by the population of the old continent should be searched for. European culture flourishes with myriads of intellectual currents, though its roots are undeniably set in ancient Greece and later on in the Roman Empire. Celebrating diversity nowadays must we find common ground for our culture, for our ethics and for the meaning of important virtues, among with courage. Those lie in antiquity, when everything began. The first to consider the importance and meaning of courage was Plato. In his work “Laches”6 he forms a dialogue between Socrates and two eminent Athenian generals- Laches and Nicias. Socrates, whilst talking about virtues, asks the basic question, what courage was, to which Laches responds, giving probably the first modern definition of courage, that he is a man of courage who does not run away, but remains at his post and fights against the enemy. Without defining, who the potential enemy might be, such a statement could easily fit what might be thought of a judge - a representative of a state (just like a soldier, to which Laches was referring), that is consistent in remaining at his post, no matter what the obstacles might be. Continuing the dialogue, Plato denies through Socrates mouth the presented concept, as it refers only to heavy- armed soldiers, while a universal definition should be found, as some have courage in pleasures, and some in pains, some in desires, and some in fears, and some are cowards under the same conditions. 6 Plato “Laches” in “Plato. Complete works.” Hackett Publishing Company Indianapolis/Cambridge, p. 665- 686 Having said that, Laches admits, that courage is a sort of wise endurance of the soul and the most noble quality.