Dimensions of Legal Ethics in the Light of Paul Ricoeur’s 'Petite Éthique’

1. Introduction

Legal ethics is a multidimensional phenomenon. This claim is validated by the multitude of ethical and professional qualifications, commentaries, and judgments of disciplinary courts, and even in the broad reception of questions related to legal ethics in pop culture. The degree of complexity of the phenomenon in question justifies the search for new theoretical tools that could allow its systematization. This article characterizes various aspects of legal ethics and employs a theory which was “modestly and ironically”³ called “little ethics” (French: la petite éthique) by its author, Paul Ricoeur⁴. The choice of such a theoretical foundation results from four types of reasons. Firstly, Ricoeur conducts his metaethical considerations at the intersection of currents that form the paradigms of legal ethics, that is, Kantian ethics of duty and Aristotelian virtue ethics. Secondly, the ontology of an active agent developed by Ricoeur connects ethics to the perspectives of describing, prescribing, and narrating, all of which are adequate for specific traits of legal profession Thirdly, Ricoeur’s views cast a light on the problems encountered in normative and descriptive statements, allowing an in-depth analysis of the codification of legal ethics. Fourthly, the ethical pursuit of an agent in Ricoeur’s theory takes place on coexisting internal, interpersonal, and institutional planes that enable describing the professional experience of a lawyer. Therefore, the ultimate purpose of the argument is to prove that the views of the philosopher presented under the heading of “little ethics” and the related concept of agent, make it possible to formulate a multi-aspect theory of legal ethics⁵.

An analysis of the codifications of legal ethics leads to the conclusion that such ethics is construed in the deontological and teleological dimensions that can be identified with the paradigmatic perspectives of Kantian and Aristotelian ethics⁶. Albeit distant at first glance, these dimensions find their common denominator in the concept of “little ethics” developed by Ricoeur and included in studies VII, VIII, and IX of Soi – même comme un autre⁷. For this reason the philosopher’s views are considered a tool for effectively solving the “clash of dimensions” issue in the professional ethics of the legal profession, and, consequently, as a platform for formulating its unified theory. The assumption that the perspective of Aristotelian ethics encompasses the Kantian concept of morality that is “only a limited, although legitimate and even indispensable, actualization of the ethical aim” is the foundation of Ricoeur’s views⁸. Ricoeur believes that the aforementioned traditions are connected by relation of “subordination and complementarity, which the final [deontological – M.P.] recourse of morality to [teleological – M.P.] ethics will ultimately come to reinforce”⁹. Elżbieta Wolicka explains that Ricoeur uses the term “morality” to denote the relation between the pursuit of the good, well-lived life with the norms that lay a claim for universality, and the term “ethics” for the description and assessment of individual actions that fulfil this aim¹⁰. Ricoeur explains that he would like to preserve Aristotle’s “ethics of reciprocity, of sharing, and living together”, which is present in his concepts of friendship and justice¹¹. That is why, in Ricoeur’s view, “Aristotelian heritage” covers the issues of mutuality and equality of agents in the personal and institutional dimensions¹². In turn, “Kantian heritage” is manifested in the concept of self-control to keep any promise one makes. In this context, the philosopher touches upon the questions of the autonomy of will and subjugation to the order of “equal treatment of oneself as other and other as oneself” construed as a categorical imperative¹³. The metaethical synthesis of teleological and deontological dimensions is the key element of “little ethics”. Ricoeur writes that “the conflicts provoked by formalism, itself closely tied to the deontological moment, lead us back from morality to ethics, but to an ethics enriched by the passage through the norm”¹⁴. This means that “norms must be mediated by pursuit of good life if it is to achieve anything more than just clinging dogmatically to abstract principles”¹⁵. At the same time Ricoeur believes that

teleological pursuit of happiness undergoes moderation in the perspective of universal norms. Dialectic of imperative and virtue is therefore based on the alignment of the deontological and teleological dimensions in the situational judgement of the agent that “here and now” actualizes the overarching aim of the good life¹⁶. The problem of the clash between the deontological dimension and the teleological one also finds a solution in legal ethics, once the assumptions of “little ethics” are accepted. It is “little” following the intention of Ricoeur, as it is implemented by a barrister, judge or prosecutor in a specific situation of alignment of the norm enshrined in the code with the perspective of virtuous professional life. Thus, Ricoeur’s theory makes it possible to define a uniform perspective for the seemingly opposing elements, namely subjugation of a lawyer to the norm of a code of ethics and pursuit of professional self-improvement in the internal, interpersonal, and institutional dimensions¹⁷.

3. The subjective dimension

The assumptions of “little ethics” are closely correlated with the question about the onto-ethics of the subject who implements the intention of a good life. For that reason, Ricoeur differentiates “two major uses of the concept of identity [subjective – M.P.] (…) on one side, identity as sameness (Latin idem, German Gleichheit, French mêmeté); on the other, identity as selfhood (Latin ipse, German Selbstheit, French ipséité)”¹⁸. The philosopher correlates idem with features of human character that may change over time, unlike ipse that is based on truthfulness to the ethically conditioned project of “being oneself”, which is a promise made¹⁹. In Ricoeur’s theory, keeping one’s word is close to the concept of categorical imperative and enables the agent to persistently pursue ethical goals²⁰. That is why ”being oneself” is expressed as an ethically persistent action, that is, in the self-narrative implemented by the agent – the tale of one’s own life²¹. Beyond any doubt, the connection of the narratological paradigm, developed on the basis of literary theory, with the onto-ethics of the subject is one of Ricoeur’s most original achievements. That synthesis, known as the “narrative theory of personal identity”²², makes it possible to point at the common denominator of an ethically relevant being of a lawyer and the text of codification of professional ethics (see below)²³. “Having juxtaposed the notion of the narrative identity with the complexities and paradoxes of personal identity”, Ricoeur comes to a conclusion that the notion of an action of the subject is of “irreducibly polysemantic nature”²⁴. Consequently, the philosopher postulates the triad: “describe, narrate, prescribe – each moment of the triad implying a specific relation between the constitution of action and the constitution of the self”²⁵. This means that an action can be executed by a subject in the narrative,

descriptive or prescriptive dimensions that are the emanations of the same, ethically significant, human existence. Finally, the onto-ethics of the subject is a result of a threedimensional project of being onerself, (in the ipse sense) that the subject implements. From the perspective of the narratological paradigm, the subject is both the author and the hero of his or her ethically persistent action. That is why Ricoeur writes: “the person shares the condition of dynamic identity peculiar to the story recounted”. In other words, he believes that “the identity of the story (…) makes the identity of the character”²⁶. Similarly, Charles Taylor holds that “our identity is (…) defined by certain evaluations which are inseparable from ourselves as agents”²⁷. The statements quoted above open a perspective for the analysis of legal ethics. First of all, in the light of Ricoeur’s views, a lawyer remains himself or herself as far as he or she persistently implements ethical actions in the professional life, despite changes of his or her character, external circumstances, etc. This “being onerself” of a judge, barrister, bailiff, etc. is implemented in the form of a professionally-oriented self-narrative. The phenomenon in question expands the narratological paradigms into the non-verbal realm. This context adds significance to the statement that “deeds speak” about being a good lawyer, especially when deeds are moderated by the assumptions of professional ethics. Thus, Ricoeur’s position offers a powerful, ontological justification of legal ethics, as in its light the lawyer fulfils the promise of the virtuous professional life, or ceases to exist as a subject (in the ipse sense). The philosopher further claims that the narrative generalization of life gathers the ethical goals of the subject making it possible to maintain its unity despite “the organization of intention, causes, and chance that we find in all the stories”²⁸. That is why one can say that an ethically coherent self-narrative of a lawyer is a sine qua non for preserving his or her professional identity²⁹. This also means that legal ethics is impossible without an appropriate dose of self-reflection of the agent, who tests whether his or her ethical and professional goals are achieved³⁰. Taylor wrote in this spirit: “moral agency (…) requires some kind of reflexive awareness of the standards one is living by (or failing to live by)”³¹. As it has been pointed out, the ethically significant “being oneself” based on Ricoeur’s views is implemented in three dimensions: narrating, describing, and prescribing. Describing makes it possible to characterize a lawyer’s aiming for a good professional life more insightfully. In the first dimension, you can recognize accusations, pleas, justifications of sentences, commentaries, legal positions, etc. as individual legal “tales” whose quality and quantity provide a correlate of the ethically significant action of the lawyer. However, the connection between the professional narrative and ethics is best visible in judgments of disciplinary courts. Perfect examples can be found in Selected Rulings of the Higher Disciplinary Commission (WKD) and Higher Disciplinary Court (WSD) from 1936–2013 published on the website of the Polish Bar Association³².

This is the proper place to mention the significance of the narrative of disciplinary courts as interpretative ethical and professional precedents. To use the language of Ricoeur, the pursuit of a good professional life “cannot help but be depicted in the narratives through which we try out different courses of action by playing (…) with competing possibilities”. This allows is to speak of an ‘ethical imagination’, which that feeds off the narrative imagination”³³. Therefore, paraphrasing Ricoeur, you can state that the “stories” told in judgments of disciplinary courts provide members of legal institutions with precedential “grounds for [professional – M.P.] moral judgement”.

4. The textual dimension

The following two aspects of “being oneself” as a lawyer – that is: prescription and description – are closely related to questions of ethical codification. This connection is reflected in Ricoeur’s claim that the application of the theory of narrative to the description of human action makes it interpretable just like the text³⁴. Supporting Taylor’s views, the philosopher claims that “to interpret the text of action, in the case of the agent, is to interpret oneself”³⁵. Ricoeur consequently assumes that “the notion of the self” is enriched through the hermeneutic connection of interpretation of text with self-interpretation³⁶. Hence, the philosopher believes that the “narrative unity of a life” of an agent is the “temporary connection of a fabrication [that is, text – M.P.] and the living experience”. Ricoeur adds that “because of the elusive character of real life (…) we need the help of fiction to organize life retrospectively, after the fact, prepared to take as provisional and open to revision any figure of emplotment borrowed from fiction or from history”³⁷. These comments cast a light on the significance of codes of ethics construed as temporary yet necessary “fictions” that make it possible for a judge, barrister or notary to organize and interpret the “text of action” better. The dialectic of professional

take the claim to the court, while the trial before a general court challenged not only his credibility but also that of his fellow barristers: certainly lawyers who trusted him. With such behaviour, the defendant gravely infringed the dignity of the legal profession and undermined the confidence in this profession, even though he committed this offence not directly in the performance of his legal duties. 2. Ruling of Higher Disciplinary Court of 28 November 2009 (WSD 16/09): It is primarily important to emphasize the far-reaching negligence of the defendant, resulting in his unjustified conviction that he would be able to take part in three court hearings slotted in 15-minute intervals in various courts, particularly as the first of these was a criminal case. (...) Conducting a short conversation with the client in the corridor of the court and suggesting that she ask the court to delay the opening of the hearing and agree to having it conducted without the participation of an attorney cannot be considered proper notification of the court of his inability to participate in the hearing on time and proper performance of the duty to provide the client with representation at the hearing. 3. Ruling of Higher Disciplinary Court of 30 January 2010 (WSD 121/09): The defendant: – against the request of the owner, did not leave the property of the aggrieved party, – attempted breaking into the home of the aggrieved party, pushing the door, – behaved rudely talking to an ORA [Council of the Bar – M.P.] employee, and used swearwords. The defendant’s extremely reprehensible behaviour towards the female employees of the ORA in W. requires special emphasis. A lawyer should behave as indicated by the principles of professional ethics and general moral standards. Quoted after Z. Rudzińska-Bluszcz, Wybór orzecznictwa Wyższej Komisji Dyscyplinarnej (WKD) i Wyższego Sądu Dys- cyplinarnego (WSD) z lat 1936–2013 [Eng. Selected Rulings of the Higher Disciplinary Commission (WKD) and Higher Disciplinary Court (WSD) from 1936–2013], http://bit.do/WKDWSD, accessed on: 2.12.2019, pp. 6, 9–10.

experience and deontological “fabrication”, which results in deepening the “narrative unity” of a professional life becomes visible against the background of the views described above. It can be considered a special case of the hermeneutical circle38 and an alternative for the simple ethical and professional subsumption of case to the norm contained in the code. Following Ricoeur’s thought, the most extensive platform for its development would be argumentative-interpretive discourse within the legal profession³⁹. This dialectic results in the interpenetration of aspects: describing and prescribing in the self-narrative of a lawyer, moderated by the substance of the codes of professional ethics. The phenomenon is present at the same time on the plane of substance of ethical codifications, prompting reflection over co-conditioning of descriptive and prescriptive statements in their textual dimension. The question about relationships between descriptive and normative utterances touches upon one of the key questions of metaethics, and at the same time defines the line of dispute between the cognitivist and non-cognitivist positions⁴⁰. The problem of duality of existence and obligation, and, consequently, duality of statements (sentences in the logical sense) and norms, also takes a significant place in jurisprudence⁴¹, exerting practical influence e.g. on the principles of legislative technique⁴². Yet the collections of principles of legal ethics teem with examples where descriptive and normative statements coexist, sometimes even within a single work⁴³. The historical explanation of the phenomenon leads to positivist cognitivist views⁴⁴, formulated in Polish science by Czesław Znamierowski and Tadeusz Czeżowski, to name but two authors. In an article entitled Dwojakie normy (Eng. Twofold Norms), Czeżowski wrote that structurewise normative statements fall into the categories of “norms as statements of obligation” (“one should act in this or that way”, “one is allowed to”, “one is not allowed to”, etc.) and “norms as declarative statements” (“one acts in this or that way”, “whoever

38 See: P. Ricoeur, The Task of Hermeneutics, in: P. Ricoeur, Hermeneutics and the Human Sciences, Cambridge 1981, p. 43; P. Ricoeur, Existence and Hermeneutics, in: P. Ricoeur, The Conflict of Interpretations, Evanston, 1974, pp. 11–24; P. Ricoeur, The Hermeneutical Function of Distanciation, in: P. Ricoeur, From Text…, p. 83.

commits (…) is liable to sanctions”, etc.)⁴⁵. He asserts that norms expressed in statements of obligation are usually present as moral norms, while the form of the declarative statement is typical of legal norms. In Czeżowski’s opinion, both types of norms are statements in the logical sense and can be true or false, as the former “state the duty” while the latter “state the status quo prescribed by a normative instance”⁴⁶. One cannot avoid the conclusion that views formulated midway through the 20th century still influence the Polish technique of legislation and, through analogy, influence the content of legal ethics codes. At the same time they remain distant from contemporary currents in metaethics and jurisprudence. Ricoeur’s views make it possible to look at the expressions found in codes of ethics from the perspective of narratological paradigms and, as a result, ensure an original justification of the cognitivist position. Ricoeur shows that “tradition of thought stemming from Hume, for which ‘ought to’ is opposed to ‘is’. Prescribing, then, denotes something entirely different from describing”⁴⁷. Yet “placing narrative theory at the crossroads of the theory of action and moral theory, we have made narrative serve as a natural transition between description and prescription”⁴⁸. It is so as Ricoeur believes that “the actions [of agents – M.P.] refigured by narrative fictions are complex ones, rich in anticipations of an ethical nature”⁴⁹. This means that he accepts the cognitive position⁵⁰. As Wolicka wrote, “Ricoeur claims that, against the dogmatic assumptions of empiricist dualism of Hume’s epistemology, no description of the ‘actual’ content of a real course of life experience is completely neutral vis-à-vis the assessment of values and the prescriptive power of the binding nature: the separation of the two aspects is as arbitrary as it is artificial”⁵¹. For the reasons mentioned above, a description of the complex legal experience interpenetrates the professionally relevant “anticipations of an ethical nature” in codifications of ethics. Thus, the substance of “the collections of principles” is an inner “normative narrative” reflecting the actual amalgamate of “description and prescription” in the activities of judges, attorneys, and notaries. It must be added that ethical and professional narrative in the code is developed at the third level of the implementation of the lawyer’s ethical pursuit, that is, at the level of just institutions, as it aims at moderating the good professional life of those pursuing the legal profession (see below).

5. The dimension of ethical pursuit

As it has been mentioned, “being oneself” in Ricoeur’s views assumes the form of persistent “ethical aim” of the agent. Ricoeur defines it as “aiming at ‘the good life’ with and for others, in just institutions”⁵². Following upon the principles of the “little ethics” he adds that “[i]f self-esteem does indeed draw its original meaning from the reflexive

movement through which the evaluation of certain actions judged to be good are carried back to the author of these actions, this meaning remains abstract as long as it lacks the dialogic structure which is introduced by the reference to others. This dialogic structure, in its turn, remains incomplete outside of the reference to just institutions”⁵³. Wolicka explains that, according to Ricoeur, ethical intention of an agent features reflexivity, which is expressed in self-assessment that takes up the form of “self-esteem” in the case of being convinced that one pursues the aim of a good life. She adds that in this way “hermeneutic reason” sets up the dialogical character of ethical subjectivity⁵⁴. Here, Ricoeur’s views refer both to the concept of friendship (philia) in the Aristotelian sense⁵⁵, and to the notion of the face as understood by Lévinas⁵⁶. However, Ricoeur also believes that the dialogic dimension of the ethical aim requires expanding with the perspective of justice “taken into the functional framework of the institutions of the society, that is, the structures for coexistence of historical groups in public space that cannot be reduced to interpersonal relations”⁵⁷. This finally means that the ethical aim is realized in three complimentary dimensions: internal, interpersonal, and institutional, all brought together within the “narrative unity of life” of the subject⁵⁸. The concept of the “three-level” ethical aim makes it possible to complement the outlined picture of ethics in the legal profession. In its light, the aim of a good professional life is implemented in the realm of the onto-ethics of the legal profession, at least from the moment when its member becomes bound by the oath⁵⁹. It must be reiterated that, in the view of Ricoeur, a bailiff, a judge and other lawyers remain in their roles only in as much as they respect their professional oaths. Ethical and professional pursuits of members of the legal profession are also executed in the interpersonal dialogic dimension. Its profound significance is demonstrated by extensive regulations in the codes of ethics devoted to relationships with customers, the attitude to colleagues, the court, etc. and also to the lawyer-client privilege⁶⁰. It is also hard to omit the significance of the processes that take place in the dimension of “just institutions” (internal, state, etc.) as a determinant of behaviours in the legal profession. These are especially the internal institutions that create the “narratives” of disciplinary judgments and codes of ethics that help members to interpret the “text” of professional activity. In turn, “just institutions” of the state provide frameworks for verifying the ethical aims of members of the legal profession in the most extensive constitutional perspective “of the professions of the public trust”⁶¹. To quote Ricoeur, “the search for adequation between what

6. Conclusion

The article uses Paul Ricoeur’s la petite éthique to conduct a four-dimensional analysis of the phenomenon of legal ethics. First, its fundamental perspectives – the deontological and teleological one – are presented at the metaethical level, and their dialectic is discussed. Later, the description, prescription and narration are described in the subjective dimension as three aspects of the ethically significant action of a lawyer. Furthermore, the connection between the professionally conditioned self-narrative of a barrister, attorney, etc. with the “tales” contained in the rulings of legal professionals’ disciplinary courts is mentioned. The hermeneutical co-conditioning of a lawyer’s “text of action” with the substance of codes of ethics is discussed in the textual dimension. Moreover, the analysis covers the ties between the descriptive and prescriptive statements in the codes, which touches on the issues of the dispute between cognitivism and non-cognitivism. Finally, in line with Ricoeur’s views, it is suggested that the ethical and professional pursuit of a legal advisor, judge, or prosecutor can be implemented in the internal, interpersonal, and institutional relations. To sum up, Ricoeur’s theory seems to satisfy the need for s multidimensional description of the phenomenon of legal ethics within the hermeneutical-narratological paradigm. Moreover, it is an opportunity to stimulate metaethical and theoretical-legal discourse, offering, among numerous other implications, reinforcement of the cognitive position in the onto-ethics of an acting agent (lawyer).