Reflexivity and the Codification of Legal Ethics. Remarks on the Basis of Paul Ricoeur’s “Little Ethics” Theory

1. Introduction

Jurisprudential discourse revisits the question of the codification of legal ethics.² At the same time, in spite of the theoretical dilemmas, legal corporations around the world

make an effort to create sets of rules of professional ethics. Today, the phenomenon is so common that it is no exaggeration to speak of “saturating” legal corporations with ethical-professional issues both on a local and a global scale.³ On the other hand, in the opinion of a number of lawyers, the codes of ethics remain peculiarly impotent colossuses – an ineffective tool for professional conflict prevention and resolution. The sources of this phenomenon should be sought among other things in the unclear status of corporate legal ethics, which is neither positive law nor a living morality.⁴ The consequence of legal ethics being torn between law and morality – reinforced by the assumptions of legal positivism – is a low sense of the binding nature of ethical and professional norms. Its visible manifestation is the discrepancy between the prevalence of codification and limited respect for the norms of legal ethics. The universality of the regulation seems to confirm the scale of the problem signaled. What is more, the very codes tend to be regarded as a source of low efficiency of professional ethics. One can even get the impression that the criticism of professional ethics is focused on the sets of principles. This argument has the purpose, inter alia, to assess whether this criticism is justified and whether the content of the existing codes is the cause of the weakness of legal ethics in practice. Therefore, these considerations are not based on a priori theoretical assumptions, but rather on the conclusions derived from the analysis of the content of a number of codes of legal ethics.⁵

2. Code content analysis – the critical part

Generally speaking, the drawback of the sets of principles of legal ethics is, on the one hand, their quasi-legal normativity, limiting the possibility of taking independent decisions in cases of ethical and professional conflicts, and, on the other, the exaggerated declarative character of professional virtues. This gap is visible in the content of legal ethical and professional codes, both in the common law and civil law tradition. This phenomenon can be illustrated by sample regulations taken from the Polish and the American sets of rules of legal ethics. The basis for the codification of legal ethics in the US are the ABA Model Rules of Professional Conduct.⁶ In their essential part Model Rules⁷ have the character of

Some of the Rules are imperatives, cast in the terms “shall” or “shall not”. These define proper conduct for purposes of professional discipline. Others, generally cast in the term “may”, are permissive and define areas under the Rules in which the lawyer has discretion to exercise professional judgement.⁹

The premise of the statutory character of the Model Rules is their direct influence on the content of the codes issued by the respective Bar Associations, incorporated, under court decisions or legislative authorities, into the state systems of legal sources.¹⁰ On the other hand, the Model Rules state that “the exercise of professional judgement” consists in improving the lawyer’s relations with the client, the court, other lawyers, etc. Therefore, the number of core principles have a clearly perfectionistic character and they refer to professionally conditioned virtues. Already point 1 of the Preamble states that “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice” (yet another emphasis). The further points of the Preamble expressly indicate legal professional virtues. For example, in accordance with point 2 “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system”. In turn, in light of point 4, “In all professional functions a lawyer should be competent, prompt and diligent”. There i s also point 5 which has a perfectionistic expression, according to which:

A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.¹¹

The professional virtues indicated in the Preamble are referenced to all spheres of the lawyer’s professional activity and are subject to clarifying the content of the respective Rules. For example, in the chapter “Client-Lawyer Relationship”, according to Rule 1.1: Competence, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation necessary for the representation”. The lif elong training of a lawyer, with an aim to maintain a high degree of their professional competence, remains an important

element of self-improvement: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject”. Another example of developing legal ethics in the context of professional self-development can be found in the section “Counselor”. In the light of Rule 2.1, shaping the professional judgement about the client’s situation goes beyond the normative dialectic of “shall or shall not”, entering the prospect of a broad knowledge of life:

In representing a client, a lawyer shall exercise independent professional judgement and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.¹²

It should be noted that Rule 8.4, listing six categories of misconduct (among others, violation or attempted violation of the Rules), also provides for cases of conduct contrary to the perfectionist, ethical-professional virtues. This includes situations where a lawyer “engage[s] in conduct involving dishonesty, fraud, deceit or misrepresentation”, as well as situations where an offence impacts directly on “the lawyer’s honesty, trustworthiness or fitness as a lawyer”.¹³

The coexistence of the perspective of ethics of norms and ethics of virtues is also evident in Polish codes of legal ethics. It can be argued that, except the succinct Standards of Professional Conduct for Judges, they have a quasi-statutory character, complemented by a set of preliminary perfectionist declarations. An authoritative example of such statute-like form is §23a of the Code of Advocates’ Ethics, which enumerates meticulously the permitted forms of announcing one’s services.¹⁴ On the other hand, the perfectionist perspective is determined in the abovementioned Code in broad terms, since, in accordance with § 4, an attorney bears disciplinary responsibility for incompliance with advocates’ ethics or a violation of the dignity of the profession in professional, public and private life. Moreover, § 8 contains a catalogue of relevant ethical and professional virtues. In the light of the latter, an attorney should carry out their professional activities to the best of their knowledge and will, with due honesty, conscientiousness and zeal. An advocate is also obliged to pursue continuous professional training and strive to maintain a high level of professional competence. Thinking in terms of ethicalprofessional virtues is also visible in the content of § 43 (Relationship to clients), according to which an attorney is obliged to defend the interests of their client in a courageous and honorable manner, while preserving the respect and courtesy owed to court and

other authorities, without regard to their own personal benefit or the consequences of such an attitude, both for themselves or for another person. Similar regulations are contained in the Code of Ethics for Legal Advisors (e.g. in articles 11 and 12), whereas their perfectionist expression is further strengthened by the reference to the wording of their oath (article 6).¹⁵ The Code of Ethics for Prosecutors (§ 2 point 1 and 2) also enumerates such virtues as honesty, dignity and honor as well as a sense of duty and responsibility.¹⁶ The perspective of thinking in terms of ethical and professional virtues also comes to the fore in the general part of the code of ethics for notaries¹⁷and bailiffs.¹⁸ In turn, in the short code of judicial ethics it forms the basic framework of regulations.¹⁹

The latter example is the exception that proves the rule, according to which both in the US Model Rules of Professional Conduct and in Polish codes of legal ethics containing the rules of quasi-statutory nature there coexist declarations of excellence in professional virtues. Legal ethics is therefore shaped by the creation of two heterogeneous perspectives – deontological and perfectionist. The difference between them can be regarded as one of the fundamental reasons for the practical dysfunctionality of professional ethics in the operations of an attorney, a judge or a prosecutor. This is the case since being subject to deontological obligation is something radically different from the call for self-improvement in ethical-professional virtues. Moreover, the prescription, legalistic in its nature, to comply with ethical-professional norms is indeed in contradiction with the requirement for a flexible resolution of non-codified conflicts. As a result, the vagueness of the concepts of “dignity of the profession”, “professional judgement”, “self-improvement”, etc. weakens the meaning of the basic, ethical-professional duties, whereas the detailed nature of norms undermines the validity of teleological declarations. It can therefore be claimed from the jurisprudential point of view that in the content of professional codes of ethics there co-exist at least two different ethical perspectives. I would venture to say that one of them is the perspective of Aristotelian ethics of virtues, while the other – of Kantian ethics of duty. The first forces one to make ethical

3. A proposal to solve the problem – the constructive part

3.1. Paul Ricoeur’s views

It begs the question of whether the radical dissimilarity of two great ethical traditions can be removed at the meta-theoretical level and if so, what the consequences for the codification of legal ethics would be. Consequently, I would like to refer here to the original attempt to reconcile the Aristotelian and the Kantian perspective,²⁰ made by Paul Ricoeur in his work Soi-même comme un autre (Oneself as Another).²¹ Ricoeur’s proposal bears a modest name of “little ethics” and is covered by the study VII, VIII and IX of that work.²²

Ricoeur most generally writes that “from Aristotle he would like to preserve the ethics of sharing, co-existence”, present in his concepts of friendship and justice.²³ Therefore, in Ricoeur’s views, the “Aristotelian perspective” includes the issues of reciprocity and equality of entities,²⁴ both in the interpersonal dimension (in such case the philosopher uses the term “solicitude”²⁵) and in the social one (then the philosopher writes about “justice”). In turn, the “Kantian perspective”²⁶ comes to the fore in the conception of “self-obedience” to the promise made, as adopted by Ricoeur.²⁷ In this context, Ricoeur raises the question of the autonomy of will and surrendering to the prescription of “equal treatment of oneself as another and another as oneself”, understood as a categorical imperative.²⁸

In order to formulate the “little ethics”, Ricoeur adopts a number of presuppositions. The philosopher introduces primarily a rather unusual understanding of the concepts of ethics and morality, relating the first with the teleological perspective (“with what is assessed as good”) and the other with deontological perspective (“with what imposes itself as obligatory”). Then Ricoeur formulates his theses, being the axis of reasoning, namely “1) the priority of ethics over morality [in the above sense – M.P.]; 2) the necessity of filtering the ethical pursuit through norms; 3) the validity of referring from the norm to the pursuit, where the norm in practice leads to dead ends”.²⁹ In

other words, Ricoeur argues that Aristotelian ethics includes the Kantian conception of morality, representing “only a limited, albeit legitimate, or even necessary fulfillment of ethical pursuit”. Between the indicated traditions there would therefore exist the relation of “subordination and complementarity, (…) reinforced by the ultimate reference from morality to ethics”.³⁰

Paul Ricoeur associated the above assumptions with the basic theme of “Oneself as Another”, namely with the developed ontoethical concept of entity.³¹ It should be recalled that the philosopher distinguishes between “being oneself in the sense of idem”, identified with the changeable qualities of human character and “being oneself in the sense of ipse”,³² consisting in fidelity to the ethically conditioned project of “being oneself”, namely, the promise made.³³ The actual “being oneself” is thus a consequence of the consistent implementation by the entity the “ethical aspirations” defined by Ricoeur as “the intention to achieve ‘good life’ with other people and for other people in just institutions”.³⁴ This means that ethical aspiration is performed on three complementary levels (internal, interpersonal and institutional), bonded with “narrative unity of life” of the entity.³⁵

As mentioned earlier, the implementation by the entity of the teleological “ethical aspiration” is, according to the philosopher, impossible without the “deontological moment”.³⁶ In order to closely interrelate the two indicated aspects of the ontoethical theory with the entity, Ricoeur introduces the corresponding subjective concepts of “selfesteem” and “self-respect”.³⁷ These are, according to the philosopher, “the most mature stages of growth, which is at the same time treated as developing (…) being oneself”. Ricoeur carries out their dialectics through three definitional levels of the ethical aspiration.³⁸ The philosopher writes that “self-respect, corresponding at the moral level to selfesteem at the ethical level, will reach its full meaning (…) when the respect for the norm evolves into the respect for another and “for oneself as another” and when the scope of the latter extends to anyone who has the right to expect adequate participation in the fair distribution”.³⁹ Ricoeur concludes the interrelations between two ontoethical aspects of the entity by saying that “self-respect stands for self-esteem under the pain of moral law”.⁴⁰

What is, therefore, understood as the dialectic synthesis of the teleological and deontological aspect, crucial for Ricoeur’s views? The philosopher claims that “conflicts caused by formalism, which is itself closely linked to the deontological moment, bring back the return from morality to ethics, yet such ethics which is enriched with the passage through the norm and entangled in the moral situational judgement”.⁴¹ This means that the teleological aspiration for good life should “go through” the respect for the universal norms, if it is to be something more than a spontaneous quest for happiness. On the other hand, as indicated by Małgorzata Kowalska, the respect for norms must be mediated by the pursuit of the good life, if it is to go beyond dogmatic adherence to abstract principles that do not take into account the diversity of specific cases, and in addition may lead to a conflict of duties.⁴² The dialectic of virtue and imperative can be therefore summarized by saying that the moral norm is verified in the situational judgement, due to the aspiration for ethical perfection “here and now”. It should be added that the foundation of the situational judgement is the “practical wisdom”⁴³ characteristic of the entity, being the consequence of “reconciling Aristotle’s phrónesis with Kant’s Moralität”.⁴⁴ P. Ricoeur explains that the practical wisdom “takes from phrónesis that its horizon is “the good life”, its mediation – reflection, its originator – phrónimos [“man of the wise judgement”⁴⁵ – M.P.] and the points of its application – specific situations”. At the same time, practical wisdom includes the moment of “moral obligation, duty, which prescribes that evil should not take place”.⁴⁶ Practical wisdom is thus the result of the ethical aspiration, manifested in the moral judgement given in a specific situation. The prospect of “practical wisdom” is used by Ricoeur to show the signaled priority of the aspect of the teleological ethical aspiration before the deontological one.⁴⁷ To that purpose the philosopher examines the casus of Antigone, thus illustrating the weakness of a dogmatic adherence to the rules, separated from the situational context. As a consequence, Ricoeur introduces the concept of tragedy, understood as the immanent feature of ethical conflicts. The philosopher states that “the tragedy should be sought (…) in conflicts piled up on the way leading from the rule to the moral situational judgement”.⁴⁸ Therefore, the “tragedy of the action, illustrated by Sophocles’ Antigone,⁴⁹ leads the formalism of action to the very heart of ethics”.⁵⁰ The practical wisdom of the entity is not born painlessly, but as a consequence of “being guided by the tragedy” in the situation of conflict. Furthermore, according to Ricoeur, moral conflict “emerges (…) once it turns out that the diversity of people, inseparable from the very idea of human multiplicity, cannot be reconciled with the universality of rules (…); respect then begins to be divided into

the respect for law and the respect for people”.⁵¹ In such a situation, according to the philosopher, practical wisdom would consist in giving priority to the respect for people “in their irreplaceable individuality”, before the respect for universalizing norms.⁵² The consequent complementation of the ontoethical theory of the entity includes Ricoeur’s view that “the man of the wise judgement [within Aristotle’s meaning – M.P.] defines at the same time the rule and the case, comprising the situation in its full individuality”.⁵³ This leads the philosopher to the conclusion that the verification of the moral norm in the “mature situational judgement” allows phrónimos the individual assessment of the extent of the implementation of the plan of “being oneself”.

3.2. Reflexivity

In this context the fundamental place is taken by the issue of the reflexivity of the entity, reoccurring in Ricoeur’s considerations. It constitutes a correlate of the concept of practical wisdom, resulting in a “mature” situational judgement. At the same time, reflexivity of the entity is for Ricoeur synonymous with self-interpretation. The philosopher states that “in the continuous effort of the interpretation of action and of oneself there takes place the search for the consistency between what seems best for our entire lives, and the preferential choices (provisions) that govern our practices”.⁵⁴ Ricoeur draws at this point on his earlier findings, in the light of which the interpretation of human action and the text is covered by a unifying methodology of hermeneutics.⁵⁵ Referring to the views of Charles Taylor,⁵⁶ Ricoeur states that “to interpret the text of the action in the case of the originator means to interpret oneself”.⁵⁷ One of the contexts of self-interpretation are at the same time “standards of excellence” [within the meaning coined by Alasdair MacIntyre – M.P.], inscribed in the teleological perspective, which enable us to refer as good to a doctor, an architect, a painter, or a chess player.⁵⁸ Ricoeur writes that the standards of excellence can be viewed as the rules of comparison applied in connection with the ideas of excellence, common to a certain community of performers and “manifested by the masters and virtuosos of the analysed practice”.⁵⁹

Moreover, in view of Aristotle’s Golden Rule, Paul Ricoeur states that reflexivity seeks to find a balance “between our aspiration for the ‘good life’ and (…) the specific choices”. This balance is the result of “a circular game between the guiding concept of ‘good life’ and the most significant provisions of our existence (career, love, leisure activities, etc.)”. The philosopher adds that “the situation is like with the text in which the whole and the constituting parts are mutually understood by each other”. The reflexivity of the entity is therefore strictly conditioned by the aspiration for the good life, or “self-esteem” within the designated promise of “being oneself” at the three levels

of the implementation of ethical aspiration. In contrast, the effect of self-reflection of the entity is its somewhat ephemeral or situational “belief that he properly thinks and operates”.⁶⁰ As Ricoeur writes, this conviction is the result of a balance between “the requirement of the universality and the recognition of contextual constraints”. In summary, reflexive equilibrium between deontology and teleology is “the ultimate price of the situational judgement” of the entity.⁶¹

3.3. Paul Ricoeur’s concept in the perspective of legal ethics

At this point, I would like to once more assume the perspective of professional legal ethics. The premise for presenting Ricoeur’s views was the critical analysis of the content of codes of legal ethics. Two ethical perspectives, teleological and deontological, have been observed. This diversity was to result in the dysfunctionality of professional ethics of an attorney, a legal adviser, a bailiff, etc. Meanwhile, Ricoeur’s “little ethics” offers theoretical tools that enable us to challenge the critical initial arguments. Firstly, in the light of the philosopher’s views, the perspectives of virtues and duties are complementary in nature, leading to a more complete description of the phenomenon of legal ethics. As pointed out above, Ricoeur demonstrates the need for filtering the ethical aspiration through the norms, as well as the legitimacy of referring from norm to aspiration when the norm in practice leads to a “dead end”. The coexistence of these two ethical perspectives in the professional codification is therefore not a methodological mistake, but rather the consequence of their practical mutual conditioning, captured by the practice of law. What is more, the assumption of the priority of the teleological “ethics” before the deontological “morality” helps end the dispute on non-codified legal ethics. In the light of the philosopher’s views, the general concepts of “good judge”, “reliable legal adviser”, “self-improvement”, etc. determine the farthest horizon of the drive for professional excellence. In contrast, the validity of ethical norms, both those already covered by codification and newly established ones, is subject to verification in conflict situations in the perspective of the pursuit of a good professional life. Nevertheless, Ricoeur’s views allow us to go one step further and correlate the content of codification with the actual, ethically significant state of “being” a judge, an attorney, a prosecutor, etc. On the basis of the proposed theory, the mutual conditioning of the perspectives of ethical and professional virtues and duties in fact takes place in the sphere of the lawyer’s ontoethics. To use Ricoeur’s language, the lawyer remains “himself in ipse sense”, keeping his promise of a good, professional life. It could be argued further that the ethical conduct of a judge, an attorney or a prosecutor stands for the pursuit of a good professional life with another and for another (a client, litigating parties, etc.) in just institutions (a corporate, the government, etc.). In other words, the “(self-)respect for oneself as a lawyer” is being developed in three areas of professional life: internal, interpersonal and institutional.⁶² The content of the existing codes indeed gives expression to the fact that the ethical and professional aspiration of a lawyer is realized under the imperative of the norm in personal self-improvement, in the dialogue with a client, a litigating opponent, etc., as well as in “properly ordered” institutions

of self-government, the judiciary, etc. Thus, the analyzed position allows us to capture the correlation between “the normative narrative”⁶³ of the code, and the ontoethics of the entity of the legal ethics. As we recall, according to Ricoeur, “dialectics of ethics and morality starts and finishes in the situational judgement”. When assuming this perspective, the heart of the professional ethics would then be the “situational judgement” exercised by a lawyer, grounded in ethical-professional practical wisdom.⁶⁴ In such a judgement the norm from the code would be verified through the prism of the pursuit of a good professional life, manifested in a particular case. It should be recalled that, in Ricoeur’s view, “the tragedy of action” is the result of mindless application of norms, detached from the situational context. As a result, this gives rise to an observation that a particularly confrontational nature of legal ethics, both internally, interpersonally and institutionally, results from the approach to solving the conflicts between the ethical aspiration and the codified norm. As mentioned earlier, according to Ricoeur, the norm is confirmed – or not – in the situational judgement, due to the drive of the entity towards ethical excellence. Meanwhile, the legalistic perspective of the duty forces lawyers to give priority to the norm, in spite of contextualized ethical aspiration, implemented “here and now”. The last and the most important step therefore leads from the codified norm to a reflexive entity of the legal ethics. Such an entity would perceive the situation of ethical and professional conflict “in its full individuality”, through the prism of the intention of a good, professional life. In light of Ricoeur’s views, a lawyer’s reflexivity would stand for a situational reinterpretation of “one’s own text of professional operation”. It should be noted that Ricoeur’s views on the methodology of hermeneutics allow for including under self-interpretation both “the normative narrative” of the codes of professional ethics and the perfectionist personal patterns of a good judge, attorney, notary, etc. The ideal ethical and professional decision would ultimately be “the reflexive equilibrium” between the prescription of the codified norm and the professional aspiration to excellence.

4. Conclusion

The dialectics of deontological and teleological aspects perceived in the codes of professional ethics, initially regarded as a mechanism of mutual ineffectiveness, finally turns out to be a double flywheel of the ethical and professional self-reflection of the lawyer. In the light of the conception of the “little ethics” the codified prescription does not preclude the ability of an attorney, a judge or a prosecutor to interpret “the text of their own actions” in the context of the intention of a good professional life. On the contrary, the verification of the norm in the professional situational judgement (reminiscent of “soft” syllogism⁶⁵) is a correlate of practical professional wisdom, and, at the same time, the road leading to the balance between ethical-professional virtue and duty. “Little ethics” therefore allows for a determination of a uniform perspective for the seemingly

opposing elements, namely legalistic subordination to the valid norm and the pursuance of ethical and professional self-improvement by a lawyer in the internal, interpersonal and institutional sphere. Ricoeur’s concept ultimately makes for building a coherent model of legal ethics in which the reflexive entity makes an ethical-professional choice because of the “normative narrative of the code” and the personal models of professional excellence. To sum up, this means that the codification of legal ethics is not in as bad a shape as one might think, while the reflexive parties – judges, legal advisers and bailiffs – remain on the bumpy road to a good professional life.