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Part I.
Foundations
Chapter 1. Ethics and legal ethics
Jerzy Zajadło
Ethics (understood in a simplified manner as a general theory of morality)
is one of the five main branches of philosophy, the others being ontology
(general theory of being), epistemology (general theory of knowledge),
logic (general theory of correct reasoning and justification of theorems) and
aesthetics (general theory of beauty, or more broadly, general theory of sensory
cognition). In turn, legal ethics, at least in the approach proposed here, covers
that part of jurisprudence which, after all, falls within the general reflection on
law, and therefore in theoretical and legal sciences – next to the methodology
of legal sciences, sociology of law, theory of law, and ethics of law. In this sense,
a general reflection on law can be described as a philosophy of law in sensu
largissimo. Since philosophy of law is, in a sense, part of general philosophy, we
are dealing with a kind of feedback and closing this methodological circle – in
order to understand the essence of legal ethics we need to be acquainted with
both knowledge of jurisprudence and general philosophy.1
At the same time, ethics is sometimes a contextually ambiguous concept and
a field so broad2 and with such a rich and long history3 that even its synthetic
presentation would exceed the scope of this study. Therefore, this discussion
should be limited only to basic information essential from the point of view of
legal ethics, the more so because detailed information on various kinds of ethics
(including normative ethics, descriptive ethics, applied ethics, situational and
multi-dimensional ethics) is given in the following chapters.
1 The model of preceding information on the ethics of individual legal professions with some
general knowledge of ethics is rather widely accepted in the literature – see, i.a., Roman Tokarczyk,
Etyka prawnicza (Warsaw: C.H.Beck, 2011), 23–35.
2 Hartman and Woleński provide a good overview of specific fundamental ethical problems in
Jan Hartman and Jan Woleński, Wiedza o etyce (Bielsko-Biała: ParkEdukacja, 2009), 241–348.
3 Those interested in the history of ethics from ancient times to the present can refer to the
classic study – Alasdair MacIntyre, Krótka historia etyki, translated by Adam Chmielewski (Warsaw:
Wydawnictwo Naukowe PWN, 2000).
3
Part I. Foundations
However, some simplified and potentially misleading intuitions of colloquial
language need to be eliminated at the very outset. The Polish dictionary
indicates two basic meanings of “ethics”: “1) the general principles and moral
norms adopted in a given epoch and social community, morality; 2) study of
morality dealing with description, analysis and explanation of actually existing
morality and establishing directives of moral conduct.”4 In the first sense, ethics
is essentially equated with morality. Indeed, in everyday language this can be
seen especially in the adjectival form – the term “ethical” in various contexts
often simply means the same as “moral.” However, when we compare the nouns
“morality” and “ethics,” we get two different meanings. A relevant example is
given by Jan Hartman and Jan Woleński: “Already in ancient times, ethics was
understood as a reflection on morality, especially as the philosophy of morality.
This suggests that the nouns “morality” and “ethics” have different meanings.
Consider, however, the adjectives “ethical” and “moral.” In contexts, moral code
and the code of ethics mean almost the same, although medical morality and
medical ethics certainly do not express the same. When we say that medical
morality is such and such, we generally mean how doctors actually act [...],
and when we consider medical ethics, we are interested in indications of how
physicians should act [...]. Let us make such a clarification: morality is a social
fact based on that people act (because of moral good and evil) in a certain way,
and ethics is a set of indications on how to act.”5
For the purposes of this study, however, it is definitely and exclusively
about the second of the dictionary meanings listed above – ethics as a study of
morality. Though the dictionary definition quoted above may turn out to be too
general for our needs and may need to be somewhat extended and clarified, it
has certain sufficient cognitive and ordering qualities. First, it clearly defines
the primary subject of ethics – “all moral principles and norms”; second, it
establishes two basic ways of ethical narrative – “description, analysis and
explanation of actually existing morality” (descriptive ethics) and “establishing
directives of moral conduct” (normative ethics).
Determining a specific meaning of ethics different from morality does not
imply, of course, that ethics thus understood is a homogeneous phenomenon, or
especially that, in the history of ethics from antiquity to the present, some unified
way of presenting and solving ethical problems has been developed. On the
contrary, we are dealing with a very broad, perhaps almost unlimited spectrum.6
4 Stanisław Dubisz, ed., Uniwersalny słownik języka polskiego, vol. A–J (Warsaw: Wydawnictwo
Naukowe PWN, 2008), 858.
5 Hartman and Woleński, Wiedza, 19.
6 See entry “Etyka, problemy,” in Ted Honderich, ed., Encyklopedia filozofii, vol. I A–K, translated
by J. Łoziński (Poznań: Zysk i S-ka, 1998), 221–224.
4
Chapter 1. Ethics and legal ethics
In this substantive and methodological richness, certain ideas that may
be essential from the point of view of ethical knowledge useful in legal ethics
can be distinguished. They include deontology (ethics of principles/duties),
consequentialism (ethics of effects) and aretology (ethics of virtue). These
three fundamental (in simple terms) types of ethical reflection are in a sense
competitive and oppose each other, but modern academia tries to reduce the
tension between them and come up with various hybrid forms, since in pure
form each of these types has its pros and cons, its weaknesses and strengths.7
Understanding their essence in genere seems necessary from the point of view
of understanding the function of legal ethics in specie, because each of them
can be applied (and practically is) in defining the ethos of the legal profession.
Yet, since lawyers only resort to what has been developed in the long history of
ethics, the floor is given to philosophers.
Deontology (from Greek dei “it is necessary” and deon “duty”) is defined
primarily as the ethics of obligation, but from a certain point of view it can
also be considered as the ethics of principles. There is no contradiction in this
– after all, an obligation to conduct oneself in a particular way is nothing else
than an obligation to follow a specific principle.8 There are various justifications
of deontology – it may be seen from the perspective of the agent carrying out
certain actions (agent-centered deontology) or the perspective of the subject
affected by these actions (victim-centered deontology), but views neutral as to
the subject (agent-neutral deontology) are also possible.9 Either way, deontology
primarily has a non-consequentionalist dimension. In other words, certain
morally relevant acts should be taken or avoided regardless of the consequences
that may result from this act or omission. The decisive factor is only that
something is morally good or morally bad per se, regardless of the effects of
our choices. It is easy to notice that deontology can provide a good basis for
all ethical codifications. It allows us to establish a more or less complete list
of acts that are morally desirable or morally reprehensible. Thus, according to
the simplest definition, deontology is “normative ethics due to a specific field
of human activity,” while deontologism is “a current in ethics maintaining that
morality is the domain of moral law and of the obligation to follow it; the moral
value of an act depends on whether it fulfills that obligation.”10
7 See Krzysztof Saja, Etyka normatywna. Między konsekwencjalizmem a deontologią (Kraków:
Universitas, 2015).
8 However, in philosophical literature, ethics of principles is sometimes distinguished from
deontology – see i.a. Saja, Etyka normatywna, p. 31ff. and 97ff.
9 Ibid., 110.
10 Hartman and Woleński, Wiedza, 434; see also entry “deontologizm,” in Józef Herbut (ed.),
Leksykon filozofii klasycznej (Lublin: Towarzystwo Naukowe KUL, 1997), 107ff.
5
Part I. Foundations
sometimes directly
While deontology abstracts from the effects of our moral choices,
identified with utilitarianism,11
consequentialism,
concentrates on them, because “the moral value of an act is measured by its
consequences.”12 Although consequentialism as an ethical theory has a history
as long as deontology, its name is relatively young, having being coined by
British philosopher Gertrude Elizabeth Margaret Anscombe in 1958.13 Since
it is hard to determine and predict all possible situational outcomes of our
moral choices, consequentialism does not have such codification possibilities as
deontology, and therefore is often defined not in a positive but negative way:
“a view opposing both the view that the source of the value of an act can be some
advantages of the character of the subject of action (courage, justice, restraint,
etc.), as well as the view that the value of an act may be inherent, belonging to it
as such, e.g. as an act of truthfulness or keeping a promise.”14
This negatively formulated definition leads us to the grounds of the third
tradition of ethical reflection, as it is clear that consequentialism can be
contrasted not only with the immanent features of an act, but also with the
immanent features of a person as the perpetrator of this act. The opposite of
consequentialism is non-consequentialism, but the latter may concentrate on
both the object (deontology) and the subject (ethics of virtue).15 Anscombe’s
article was of paramount importance for contemporary virtue ethics. The
British philosopher pointed out that, for centuries, the fundamental ethical
and metaethical dispute has been along the line of deontologism versus
consequentialism – and yet in the history of philosophy a third solution can be
found – the Aristotelian ethics of virtues, with which a person, as a subject of
moral actions, should be equipped. This reclaiming of the Aristotelian tradition
caused the emergence of a third current in modern ethics – aretology as a broad
understanding of virtues and of the study of moral virtues.
Naturally, the question arises as to which of these three types of presentation
of moral problems and ways of solving them is most useful for legal ethics. It
seems, however, that legal ethics is above all normative ethics of a deontological
nature. As a result, it is no coincidence that legal ethics is a domain extensively
codified in various types of documents adopted within particular legal
11 However, it seems that consequentialism is a broader concept, and utilitarianism is only one
possible form of consequentialism – see the entry “consequentialism,” in Honderich, Encyklopedia
filozofii, 43.
12 Hartman and Woleński, Wiedza, 439.
13 Gertrude Elisabeth Margaret Anscombe, “Modern Moral Philosophy,” Philosophy 1958, vol. 33,
14 Entry “konsekwencjalizm,” in Oksfordzki słownik filozoficzny, Simon Blackburn, translated
by Cezary Cieśliński et. al. and edited by Jan Woleński (Warsaw: Książka i Wiedza, 2004), 195ff.
15 Saja, Etyka normatywna, 97.
No. 124: 1–19.
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Chapter 1. Ethics and legal ethics
professions. This, of course, does not imply that consequentialism is of no
significance in this area – it may prove to be of some limited use in those
cases referred to in the philosophy of law as hard cases.16 In contemporary
jurisprudence, increasing attention is given to the ethics of virtues. This can
be evidenced by the origin of a new philosophical and legal current – virtue
jurisprudence.17 It is relatively young, only a dozen or so years old, but perhaps
the future within legal ethics, especially judicial ethics, belongs to it.
However, it cannot be excluded that, within the framework of trends
prevailing in contemporary general ethics, legal ethics – due to its specificity
– will become increasingly based on hybrid ethical theories18 in the sense
mentioned above. Legal ethics should not abstract from a conciliatory tone
and attempts to find a compromise between deontology, consequentialism and
aretology – attempts at which can be seen in contemporary philosophy.19
16 For more on this topic, see Jerzy Zajadło, Po co prawnikom filozofia prawa? (Warsaw: Wolters
Kluwer Polska, 2008).
17 See i.a. Lawrence B. Solum, “Virtue Jurisprudence: A Virtue-Centered Theory of Judging,”
Metaphilosophy 2003, vol. 34, No. 1–2: 178–213.
18 See Saja, Etyka normatywna, 215–288.
19 See Joanna Górnicka-Kalinowska, “Konsekwencjalizm,” in Panorama współczesnej filozofii,
eds. Jacek Hołówka and Bogdan Dziobkowski (Warsaw: Wydawnictwo Naukowe PWN, 2016), 135–150.
7
Chapter 2. Principal branches of ethics
Oktawian Nawrot
A reflection on ethics may encounter serious difficulty right at the very
beginning. What is meant here are not some complicated issues concerning
human conduct, e.g. in circumstances where either choice inevitably involves
a greater or lesser evil – as in the well-known trolley dilemma, where we have
to decide about pulling the lever and redirecting the trolley to the track with
one man tied up, thus, saving the lives of five people lying tied up on the
original track. It is about something completely different, and at the same time,
fundamental to this chapter, namely defining ethics as such. Seemingly, the
matter is uncomplicated and even banal, and thus, not worth thinking about.
One would like to consider this based on the example of Father Benedykt
Chmielowski, author of one of the first Polish encyclopedias, Nowe Ateny, who,
in the definition of a horse, wrote “A horse is as everyone can see.”1 Indeed,
ethics seems something obvious, something that we deal with every day, and
hence, not requiring abstract reflection. However, when we begin to think
about the meaning of the word “ethics” seriously, it soon turns out that we face
a problem similar to that of St. Augustine looking for the answer to the question
of time, and ours may resemble the one given by the sage “If no one asks me,
I know; if I want to explain it to a questioner, I do not know.”2
The above paradox becomes more intriguing when we realise that ethics
“bombards” us every day from the front pages of newspapers, television
programmes, and websites. After all, nothing sells better than information
that stimulates/irritates/shocks our ethical sense. A judge who does not pay
alimony, a doctor disconnecting a child from life support equipment, a scientist
falsifying the results of research on drug effectiveness – it is disgusting, it
is outrageous, but… it sells well. As Jacqueline Russ observes in her book La
1 Benedykt Chmielowski, Nowe Ateny (Lviv, 1745), 475 (scan of the first edition available at https://
polona.pl/item/nowe-ateny-albo-akademia-wszelkiey-scyencyi-pelna-na-rozne-tytuly-iak-na-classe
s,Njc2NTc5ODM/2/#info:metadata).
2 St. Augustine, Wyznania, translated by Zygmunt Kubiak (Kraków: Znak, 2000), Book XI, Item 14.
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Part I. Foundations
Pensée Ethique Contemporaine, “current years are a time of ethical renewal, the
‘era of morality’, as the banner of axiological values turns out to be the ultimate
point of reference for our developed democratic societies.”3 Regardless of this,
solutions proposed by the media, experts, and authorities of various sorts very
often fail to convince us. The aforementioned doctor disconnecting a child from
life support apparatus upon the conclusion that the degree of brain damage of
the young patient justifies sufficiently the decision that actions which would
be taken otherwise are not for the good of the child, but instead prolong not
life but agony, will meet both approval and criticism of many observers. These
observers – in the majority recipients of simplified media information – will
refer to their morality, to their sense of what is good and bad, without thinking
about the reasons behind the formulated assessments. In particular, there will
be no reflection on the systems of values and norms in which their assessments
are integrated, from which these assessments follow, and thus, there will be no
reflection on what justifies them – makes them “valid.”
The above description gradually outlines the phenomenon of ethics. People
behave in different ways, which can be judged in terms of good-bad, just-unjust,
right-wrong, etc. When someone destroys another person’s car, slanders someone
behind their back, does not keep their word, or abandons their sick partner,
they may face disapproval of others, and even sanctions such as ostracism from
the group they belong to. This is because the action of the “condemned” person
violated a specific norm, which in effect was aimed at protecting some value
recognised in a given group, e.g. ownership, good name, or truth. Moreover, it is
unsurprising to us. Our actions are subject to assessment and evaluation. From
early childhood, we are taught what we are allowed and what we are not allowed
to do. Some behaviour is presented as positive, and some as negative. We learn to
distinguish them, which is facilitated by the already mentioned, often complex
systems of norms. These norms usually take the form: “you should do x,” “you
should not do y,” “it is necessary to do x,” “y is not to be done,” or “x is good,”
“y is bad.” For the purpose of their internalisation, i.e. recognition of a norm as
one’s own, identification with it, on the one hand some norms – as mentioned
above – are subject to certain sanctions, e.g. rejection by the group, negative
reactions, stigmatisation. On the other hand, implementation of other norms
entails rewards: recognition, universal approval, respect, growth in importance.4
The phenomenon described above is morality, i.e. a collection of social facts
which boil down to statements that people act in one way or another because
3 Jacqueline Russ, Współczesna myśl etyczna, translated by Agnieszka Kuryś (Warsaw: Instytut
Wydawniczy PAX, 2006), 5.
4 See Hartman and Woleński, Wiedza, 17–18.
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Chapter 2. Principal branches of ethics
of moral good or evil.5 If we now reflected on this phenomenon, in particular
on its foundations, we would move to the sphere of ethics. This is precisely how
ancient thinkers undertaking first reflection on morality approached ethics.
Thus, ethics primarily sets itself the goal of “understanding” the phenomenon
of morality by referring to the conduct of individuals that is important from
a moral point of view, attempts to “comprehend” them, to understand the values
underlying them, to examine the accompanying assumptions about man and the
world. Ultimately, ethics, striving to understand the phenomenon of morality,
of decent behaviour of individuals, looks for its most basic foundations, or –
in other words – the first principles, the source of moral duties. Hence, when
undertaking ethical reflection, first we enter a specific meta-level of morality.
A simple analogy can help understand this – a particular work of art is different
from a theory of art. Good and bad conduct is different from good and evil
as such. Then, after understanding these phenomena, the construction of
a system of moral norms that regulate human behaviour in the individual and
social perspectives may begin. Therefore, ethics has the ambition to set goals of
human action, moral values proper to them, and in consequence, to formulate
imperatives, or moral laws.6
The above description makes it possible to distinguish two basic divisions
of ethics, i.e. descriptive and normative ethics. The former, also called the
science of morality, as its name indicates, focuses on description, analysis, and
then explanation of moral phenomena. What is examined within this branch
of ethics are primarily the widespread (in a given place and time) ways of
conduct of individuals belonging to specific groups, reasons behind the actions
that belong to the sphere of morality, factors influencing their modification,
relationships between the system of moral norms and other systems, differences
between various moral systems, effects of adopting specific models of behaviour
by individuals, motives behind individuals’ behaviour, the nature of moral
experiences, moral development of an individual, etc.7
Traditionally, research undertaken in descriptive ethics is divided into three
groups: sociological research (sociology of morality), psychological research
(psychology of morality) and historical research (history of morality).8
The starting point in sociological research is the assumption that morality
is a social fact. Specific practices and norms related to them, are thus, the
5 See Vasil Gluchman, Morality: Reasoning on Different Approaches (Amsterdam-New York:
Rodopi, 2013), 12–14.
6 See Tadeusz Ślipko, Zarys etyki ogólnej (Kraków: Wydawnictwo WAM, 2002), 22–38.
7 See Nora Hämäläinen, Descriptive Ethics. What does Moral Philosophy Know about Morality?
(New York: Palgrave Macmillan, 2016), 1–6.
8 Tadeusz Brzeziński, Etyka lekarska (Warsaw: PZWL Wydawnictwo Lekarskie, 2002), 4–5.
11
Part I. Foundations
product of a certain community – they are created, applied, and modified
within it. Hence, a given act in itself, in order to qualify as good or bad, must
be analysed in a social context. Consequently, moral is what a given society at
a specific place and time considers to be moral (conventionalism, also called
social decretalism). Moreover, under the above assumption, morality does not
exist outside society.
Linking morality with society subsequently leads to the recognition that
morality, like society, is a phenomenon changing in time. Its final form is the
effect of numerous factors: environmental (e.g. specific climate and access to
natural resources have been determining economy for centuries, which in turn
influenced the system of social relations, which then affected the ways and
norms of conduct binding individuals), biological (sex, physical development,
race – often shape the rules of conduct for societies and individuals belonging to
specific social groups), demographic (population density, demographic changes,
population mean age, sex proportion in society), political (political system),
economic and technological development, access to information sources, and
individuals’ mobility, etc.9
Psychological research conducted within descriptive ethics concentrates on
the issues of mental phenomena accompanying moral actions. In particular,
analysis includes motives of these actions, natural senses conditioning specific
behaviour, moral experiences (sense of duty sense of obligation, pangs of
conscience, etc.), mental states assessed in moral categories (envy, contempt,
friendship, love, etc.), moral development of an individual, role-models, moral
pathology (moral blindness, extreme Machiavellianism, etc.). Typical kinds
of questions formulated within psychology of morality are: Do people act
egoistically? Are these kinds of behaviour common? Are people psychologically
inclined to certain types of behaviour?10
The third of the aforementioned groups of study issues undertaken within
descriptive ethics is history of morality. Historical research primarily concerns
problems of changeability of moral convictions, attitudes, assessments, and
norms in time. Thus, analysis covers factors that have influenced transformations
in the moral sphere, as well as mechanisms of these transformations. Moral
convictions that were universal at a certain stage in history are described and
often related to non-moral elements: the entirety of culture, beliefs, geopolitical
reality of a given community, social system, etc.
9 For a broad discussion on sociology of morality, see, for example: Maria Ossowska, Socjologia
moralności. Zarys zagadnień (Warsaw: Wydawnictwo Naukowe PWN, 2005); Steven Hitlin and Stephen
Vaisey, Handbook of the Sociology of Morality (New York: Springer, 2010).
10 For more on moral psychology, see for example: Benjamin G. Voyer and Tor Tarantola, Moral
Psychology. A Multidisciplinary Guide (no data: Springer, 2017).
12
Chapter 2. Principal branches of ethics
It should be noted that some researchers combine historical research with
broadly understood sociology of morality, or may also speak in this context
about the history of sociology of morality. Since sociology of morality essentially
focuses on analysis of morality as a social fact in a given place and time, nothing
prevents making the morality of a particular group in the past the subject of
research. Yet, if the subject of study are the psychological experiences related
to moral actions of a late individual, carried out, e.g. on the basis of preserved
diaries, it turns out we will enter the domain of psychology of morality or its
history.
While explaining the above remarks into the sphere of morally significant
actions of legal practitioners, it should be emphasised that descriptive ethics
allows, above all, one to capture and understand the phenomenon of the
mentioned actions. In addition to identifying the behaviour of representatives
of legal professions belonging to the sphere of morality, descriptive ethics makes
it possible to reconstruct the genesis of this behaviour, the reasons behind it, the
relationships between the system of moral norms and other normative systems,
in particular the system of legal norms, circumstances affecting modification
of this behaviour, mechanisms of adopting patterns of conduct, lawyer’s moral
development model, etc.
The chief task of the second of the distinguished branches of ethics (i.e.
normative ethics) is – in accordance with the preliminary remarks – to formulate
norms of conduct, i.e. rules, recommendations and guidelines on how people
should behave. These norms often take the form of entire systems, deontologies
(Greek: deon – what is mandatory, necessary, proper), regulating the behaviour
of individuals belonging to specific, usually professional, groups, e.g. medical,
journalist, or – of particular interest to us – legal deontology.
It should be emphasised that normative ethics, focusing on the formulation
of norms of conduct – that is on phrases such as “should” and “have to” –
does not describe reality, i.e. “what is,” although understanding “what is,” i.e.
morality, is its natural starting point. By its nature, it is directed towards the
future, towards what (does not yet) exist. For example, the obligation imposed
on lawyers to perform professional activities according to their best will and
knowledge in fact says nothing about the current behaviour of a given lawyer.
Naturally, the above remarks do not lead to the conclusion that normative
ethics, or strictly speaking normative judgments formulated within it – e.g.
orders, prohibitions – are of no real significance, or concern a sphere completely
independent of reality. Probably every healthy person has had some “experiences
of moral duty,” namely states of consciousness in which they experience the
existence of a kind of imperative, conviction or at least recognition of the
13
Part I. Foundations
properties of a particular behaviour.11 For example, a lawyer who has accepted
a commission for carrying out specific legal actions experiences “cognisance,” or
even a strong imperative to perform them with due diligence and speed.
Introducing the “experience of moral duty” to the sphere of universal
and certain experience of an individual raises questions about its source. For
centuries, the existence of a direct relationship between moral good (what is
considered good – “x is good”) and relevant norm of behaviour (“one has to
do x,” “one has to be x,” “one has to protect x”) was taken for granted. In the
18th century, Immanuel Kant led to a breakthrough in understanding moral
duty. Stating that one should act in accordance with such a principle, which
at the same time they may want to become a universal law, the philosopher
from Königsberg did not point to any specific good. Moreover, he did not
provide direct guidance on what to do and how. Those were ethical who in
their actions simply followed the categorical imperative formulated above. The
direction indicated by Kant was adopted by ethical and legal positivism in the
19th century. Its representatives claimed that moral value of an act should be
measured by the extent of compliance of behaviour of a person to whom a moral
or legal norm was addressed with its content.
Almost simultaneously with the crystallisation of ethical and
legal
positivism, which expresses the shift from the state of original balance between
moral good in itself and duty towards the latter, a trend has appeared that
proclaimed the possibility of constructing morality without duty. According to
its representatives, the value of moral action is not determined by conformity to
specific rules of conduct, usually “encouraging” this compliance with specific
sanctions, but internal stimuli – direct experience of values. In other words,
truly moral is the only action undertaken autonomously by an individual in
order to realise moral value because of its perfection.
Without delving into the history of ethical thought, it should be emphasised
that the remarks regarding the source of the “experience of moral duty” bring
new issues into the field of normative ethics, which – according to the definition
given at the beginning – focuses on the formulation of norms of conduct, for
normative ethics, apart from creating/defining duties, also deals with their
justification and analysis. However, this analysis goes beyond the problems of
norms by including also assessments and other ethical statements. For example,
in searching for a source that allows the reconstruction of the content of
a specific norm of conduct, one can indicate two basic sources: authority (legal
text, legislator, etc.) or the goal of action (compensation, punishment, retaliation,
11 Alojzy Drożdż, “Powinność moralna,” Śląskie Studia Historyczno-Teologiczne 2010, No. 43(2):
302–316.
14
Chapter 2. Principal branches of ethics
implementation of the idea of justice, etc.). In the first case, the ethical system
is usually built of imperative, essentially unchanging rules of conduct and takes
the form of codes. In the second case, specific duties are determined in a very
general way by the goal to be achieved, and their final content is influenced by
a number of circumstances in which the action is taken. For this reason, it is
impossible to define a given type of action in terms of good or bad, because the
same action taken in different circumstances can lead to different effects with
different moral value. Similarly, diametrically opposed ways of action can lead
to the same goal.
Naturally, the multitude of assessments of specific actions does not translate
into the possibility of a priori discrediting the above positions. Both have pros
and cons. The advantage of the first of these is a theoretically a high degree of
certainty as to the content of the norm that characterises due, and therefore, also
moral action. As regards weaknesses, one should note the possibility of excessive
formalism, which reduces the individual’s action to uncritical submission to
a specific authority. In the extreme version, this view may lead to recognising
as highly moral an act leading to the most abominable crime, but committed
in strict accordance with the norm. In the second approach, what should be
counted as its advantage is stressing the value of goals behind specific actions,
as well as the autonomy of an individual in choosing the methods of their
implementation. For example, imposing on a lawyer, obliged to perform legal
actions with due diligence and speed, specific methods of conduct, could indeed
lead to a situation in which they would not function as effectively and reliably
as they could. Conversely, excessive focus on the goal may lead to recognising
as moral those means which, from a different perspective, would undoubtedly
be considered ignoble, because the goal – contrary to what Machiavelli desired
– does not necessarily justify the means. The abovementioned multiplicity of
problems analysed as part of normative ethics means that this field is often
identified with ethics as such.
To supplement the picture of ethics and its divisions outlined above, it
should be mentioned that, apart from normative and descriptive ethics, a third
division, namely meta-ethics, is distinguished. The beginnings of meta-ethical
reflection are associated with British philosopher George Edward Moore, co-
creator of analytical philosophy, and his work Principia Ethica (Principles of
Ethics), in which, upon considering the subject of ethics, Moore analysed three
fundamental ethical questions: 1. What particular things are good? 2. What
kind of things are good? 3. How do you understand “goodness”? Answers to
the above questions determined the scope of respective ethical disciplines. The
first question is the domain of casuistry, which focuses on analysing specific,
individual cases, e.g. was disconnecting Charlie Gard from the life support
15
Part I. Foundations
apparatus a moral act? The answers to the second question determine the scope
of normative ethics, which formulates general and abstract norms of conduct
and provides reasons for them. The third question points to the central problem
of meta-ethics. By answering it, i.e. considering the connotation and denotation
of the term “goodness,” no directives of conduct are formulated, no concrete
moral problem is solved, in fact, the language used by ethics is being analysed.12
The research area outlined above – the language of ethics – remains one of
the central subjects of meta-ethics to this day. How should particular ethical
terms (evil, good, justice, righteousness) be understood? What function do they
perform in language (descriptive, suggestive, performative, expressive)? Can
ethical judgments be considered in terms of truth and falsehood? If so, what
is the criterion of their veracity? Where should one seek a sufficient reason for
them? Departing from the analysis of ethical concepts themselves, one can also
pose questions typical of metaphysics, i.e., what are values? What is the essence
of values? How do they exist? Do values exist objectively, or are they a kind of
projections imposed by individuals onto reality?
Meta-ethics analyses systems of normative ethics, their types, structures,
functions, as well as the relations between normative and descriptive ethics.
Typical meta-ethical issues, in fine, include the problems of definition of ethics,
its sources, methods, and relations to other scientific disciplines.13
Explaining the meaning of the term “meta-ethics,” it is also worth referring
to the word which was a kind of model for it, namely “metaphysics.” The
latter term is the title of Aristotle’s work devoted to the most fundamental and
abstract issues – the first principles, causes, and general theory of reality. When,
in the first century BC, Andronicus of Rhodes was arranging Stagirite’s writings,
this work was placed after writings devoted to physics, i.e. the natural world.
This is where the name “metaphysics” came from – tá metá tá physká (the
[writings] after the physics). So the most basic and abstract issues mentioned
are the nature of natural world and its elements – their existence and essence.
Analogously, meta-ethics is reflection on ethics and its elements – their essence
and existence.14
Although meta-ethical issues may seem extremely abstract, they are
in fact of paramount importance for all ethical discourse. How individual
ethical terms are understood, e.g. good or justice, often directly translates into
moral assessments and norms that are formulated, as well as the possibility of
12 Hartman and Woleński, Wiedza, 23–25.
13 See Jakub Gorczyca, Zarys etyki fundamentalnej. Być dla drugiego (Kraków: Wydawnictwo
WAM, 2014), 15–16.
14 Hartman and Woleński, Wiedza, 21–23.
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Chapter 2. Principal branches of ethics
reaching a consensus in ethical discourse. Similarly, and fundamental for ethical
discourse, is the status of ethical judgments. Recognition that these judgments
can be considered in terms of truth and falsity leads to the statement that certain
moral actions are objectively good or bad and each individual may reach the
appropriate conclusion. Whereas recognition that ethical judgments are only an
expression of subjective preferences, assessments, or ordinary discretion of an
individual means that reaching a consensus in ethical discourse becomes at least
extremely difficult. A discussion of ethical issues then resembles a discussion
about tastes, and it has been known for centuries that de gustibus non est
disputandum.
Finally, it should be mentioned that some authors, including Polish-speaking
ones, classify meta-ethics not as one of the core divisions of ethics, as it is done
at the beginning of this description, but as part of descriptive ethics. However,
occupying a special place within it.15 This kind of dividing ethics largely
corresponds with the original division of ethical issues proposed by Moore.
15 See ibid., 20.
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