Abstract
H.L.A. Hart’s lost and found essay ‘Discretion’ has provided new insight into the issue of how legal systems can cope with indeterminacy in the law. The so-called ‘open texture’ of law calls for the exercise of judicial discretion, which, I argue, renders judges susceptible to the problem of dirty hands. To show this, I frame the problem as being open to an array of appropriate emotional responses, namely, various senses of guilt. With these responses in mind, I revise an example from Michael Walzer’s original analysis in a way that highlights purely personal sacrifices in solutions to dirty hands situations. I then turn to an account of moral emotions in legal decision-making and show how judges—in failing to advance all interests—might be left with a unique sense of guilt. With an application of this account to Hart’s legal positivism, it can be seen that a judge’s hands are often dirtied in resolving borderline cases. If discretion leaves judges in situations where they must do wrong in order to do right, Hart’s endorsement of a closure view of wrongdoing will lead to difficulties in how he can explain the presence of moral remainders in jurisprudence.
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Notes
The wider range of political activity that lends itself to dirty hands situations, along with a lower justificatory threshold for acting in such situations, appears to be much more obvious in Walzer’s original account (1974) than in his later discussions of ‘supreme emergency’ (1977) and ‘emergency ethics’ (2004). See Coady (2014) for a concise account of the ambiguity.
Like de Wijze (2005, 2013), I find the definition provided by Stocker (1990: 9) to be quite useful, that is, actions that are “justified, even obligatory but nonetheless wrong and shameful”. However, the perhaps informal characterization adopted by de Wijze (2013) captures the general situation a moral agent faces and not just their actions. This consideration may point to a more dynamic conflict than Demetris Tillyris admits in his recent argument against the supposed ‘static’ quality of the ‘standard dirty hands thesis’ (Tillyris 2015).
Again, I am not alone in attempting to articulate the uniquely bad feelings associated with inescapable wrongdoing. From the ‘agent-regret’ of Williams (1981) to what de Wijze (2005) calls ‘tragic-remorse’, new descriptions of appropriate emotional responses have been introduced in an effort to understand the terrible feelings associated with unintentional or unavoidable wrongdoing. Nonetheless, with the account submitted here, the uniquely bad feeling can still be a sense of guilt, perhaps causally or, at least, correlatively associated with regret or remorse.
See Gowans (1994) for an account of moral innocence, one that he rejects in accepting the genuine nature of inescapable wrongdoing.
We need not go as far as Cunningham (1992) in supposing that all of us are torn on a daily basis by our multifarious ethical commitments. The experience of even an instance or two should suffice to illustrate the issue.
Similarly, de Wijze (2005: 457) notes that he is addressing “those who either agree that unavoidable wrongdoing is possible or are willing to entertain the hypothetical”.
Here we might agree with Walzer (1974: 77, 1977: 326) that favoring consequentialist judgments seems unavoidable upon entering political life. Similarly, as Tillyris (2015: 62) establishes the ‘standard dirty hands thesis’, ordinary morality is often deontological, whereas “the demands of successful political action…are thought to be consequentialist”. Indeed, Walzer’s time-bomb scenario seems to suggest that, without political demands, the politician would be a Kantian agent. For encouraging me to acknowledge this point, I thank an anonymous reviewer at ETMP.
By an ‘attribution’ of guilt from others I do not mean to suggest necessarily that others have standing to blame. Rather, the third-person attribution of guilt is where others can correctly say that the agent in question should feel guilty. Instead of being immediately induced by oneself, the guilt described here has been induced by others, perhaps with criticism, as I address below. I thank David Shoemaker for encouraging me to clarify this point.
In Michael Stocker’s terms, the demands to authorize torture can be thought of as ‘immoral coercion’ (1990: 24–25). So, while the notion of taking responsibility may sound like our politician is playing an active role in bringing about the wrongdoing, he is rather giving in to the coercive demands placed upon him. In this sense, taking responsibility is playing an active role, but only as an accomplice. See Gardner (2007: 58) for a compelling account of complicity as “any kind of association with the wrongs of another”. While Gardner defends a “moral difference that supervenes” upon the difference between accomplices and principals, the sense of guilt articulated here appears to remain.
Instead, we might thank them for having the courage to make the difficult decision. We might comfort them in an attempt to relieve their self-induced guilt, saying “you did the right thing”. I am grateful to an anonymous reviewer at ETMP for eliciting this clarification.
The distinction between sacrificing things beyond oneself versus sacrificing things from within oneself resembles Garrett Cullity’s question of how we should think of what is morally right versus what is personally best (Cullity 2007: 58).
The inwardness of the Machiavellian hero can be said to encompass guilt, regret, remorse, and related emotional responses. Here I follow de Wijze in being concerned with the ‘self-conscious family’ of moral emotions, a classification he adopts from Jonathan Haidt. See de Wijze (2005: 459, note 19). Still, as mentioned above, I set my account apart from those of Williams (1981) and de Wijze (2005) by concerning myself with establishing a sense of guilt prior to assessing regret or remorse.
Again, the lives sacrificed can be considered, in a sense, the politician’s to sacrifice, given the authority of his office. However, personal commitments are his alone to sacrifice, at least in the sense that no one else can sacrifice them.
I say ‘as easily’ due to the thought, above, that even personal commitments might be valuable to others. Although, as a said, being valuable to others does not mean belonging to others. Related concerns might be raised regarding the nature of commitments and their supposed moral quality. That is, it might be said that being committed must be to something, in this case refraining from torture. Commitments also are made to someone (or to a group). In the case of being committed to refraining from torture, it might be a commitment to the moral community. With this, it appears that sacrificing your commitments could bring about guilt from others, namely, if they are commitments shared by others or to others. I will return to these concerns with an example, below.
Here it does not sound entirely accurate to say that others could ‘absolve’ a dirty-handed agent of guilt. As I have suggested, as far as others are concerned, he might be guilt-free. Being absolved of the internal sense of guilt, then, appears to resemble a process of forgiving oneself. I will leave this idea aside, to be addressed in a future work.
As Kai Nielsen (2000: 140) acknowledges, “to feel guilty is not necessarily to be guilty…others are guilty without feeling guilty”. Understanding this connection to be contingent appears right. However, contrary to Nielsen, I maintain that doing the lesser evil can still be doing wrong and a wrong for which one rightly feels a sense of guilt.
Viewing solutions to the problem of dirty hands as sacrifices of something from within oneself sets a plausible grounding for an account of forgiveness as restoration for those with dirtied hands. This account would stand in opposition to de Wijze (2013).
With this consideration, I resolve the potential concerns that were raised in note 16. That is, if commitments are always to someone or to a group (even, generally, the moral community), it would seem that sacrificing commitments could bring about attributions of guilt from others, in addition to any self-induced guilt. However, as the present example suggests, commitments can be purely private without diminishing their moral quality. The moral cost, then, of sacrificing this sort of commitment is captured by the agent’s internal guilt. Here the division Cullity (2007) draws between what is morally right and what is personally best becomes less clear.
See Terry Maroney (especially 2011b: 633–636) for an account of the “origins and persistence (and apparent futility)” of judicial dispassion.
Cunningham (1992: 243) says “the scheming of evil people can create circumstances where the only way to keep the world from becoming a worse place is to cooperate with evil”. Hollis (1982: 396) closes his account with similar remarks, namely, “that politics is the art of compromise”. The notion of doing wrong as a means of ‘coping’ with a pluralistic society will be related to Hart’s notion of discretion, particularly as Shaw (2013) characterizes it.
For an example of such decision-making as a varying means of conflict resolution, see Hampshire (1983). With this conception of judicial activity as operating within a pluralistic society, it seems unlikely that any ideal outlook of morality—Kantian or utilitarian—would capture the difficulties facing judges and related public offices. I am indebted to an anonymous reviewer at ETMP for helpful comments on this point.
Judge Kaufman (1984: 2) claims “those who are appointed to decide questions of ‘law’ must contend with all the drama, confusion, failure and achievement that constitute the human experience”.
See Justice Ruth Bader Ginsberg’s recent statements on the death penalty: “If I had my way there would be no death penalty. But the death penalty for now is the law…Every time I have to participate in a case where someone has been sentenced to death, I feel that same conflict”. Reuters, 5 February 2013.
Admittedly, this is a controversial claim. I am not suggesting that utilizing emotions in making decisions will always provide the best means of adjudicating between conflicting sides in a dispute. Dispassion may well be the ideal. Despite this ideal, the movement outlined here suggests that natural emotional responses must be admitted and, in doing so, should be harnessed in a way that allows difficult decisions to be effectively made. See Maroney (2011a: 1513–1531) for an account of how this process could be realized.
These particular restrictions are necessary for a society to live by primary rules alone (Hart 1961: 91). A second necessary condition is that those rejecting the rules must not constitute a majority. Those accepting the rules can be said to share the ‘internal’ view, whereby members of a group whose behavior fulfills a standard can be subject to normative language from other members (Hart 1961: 56–57).
Lacey (2013: 643) summarizes Dworkin’s charge as: “The positivist account of adjudication…entailed a strong form of judicial discretion that implied a quasi-legislative role for judges inconsistent with their constitutional position”.
Here it might be objected that there are cases where guilt is fitting even in the absence of wrongdoing. Such cases would show—on my account—that judges appear to have dirty hands, yet the closure view could be true. While the possibility of these cases should not be denied, for the sake of brevity, I can only reiterate my framing and application of the problem of dirty hands. Where the option to sacrifice something beyond oneself is a live option, sacrificing a commitment is failing to fulfill a responsibility to oneself. In making these difficult decisions, judges compromise themselves for a greater good. If the closure view was true, compromising oneself would not be wrong here, which my account denies. I thank David Shoemaker for pointing this out.
Gardner (2007) attributes Hart’s endorsement of the closure view to the ‘Prolegomenon to the Principles of Punishment’, where Hart draws the distinction between justification and excuse. In short, justified actions are not condemned by law; excused actions are still wrong, in fact, “deplored” (Hart 1968: 14). With this, it seems that ‘justified wrongdoing’ is, in a sense, oxymoronic.
References
Anleu SR, Mack K (2005) Magistrates’ everyday work and emotional labor. J Law Soc 32(4):590–614
Brandt R (1972) Utilitarianism and the rules of war. Philos Public Aff 1(2):145–165
Coady CAJ (2014) The problem of dirty hands. In: Zalta EN (ed) Stanford encyclopedia of philosophy. http://plato.stanford.edu/entries/dirty-hands/. Last accessed 25 October 2014
Coleman J (2001) The practice of principle: in defence of a pragmatist approach to legal theory. Oxford University Press, Oxford
Cullity G (2007) The moral, the personal and the political. In: Primoratz I (ed) Politics and morality. Palgrave Macmillan, Basingstoke, pp 54–75
Cunningham A (1992) The moral importance of dirty hands. J Value Inq 26(2):239–250
de Wijze S (2005) Tragic-remorse–the anguish of dirty hands. Ethical Theory Moral Pract 7(5):453–471
de Wijze S (2013) Punishing ‘dirty hands’–three justifications. Ethical Theory Moral Pract 16(4):879–897
Dworkin R (1986) Law’s empire. Harvard University Press, Cambridge
Gardner J (2007) Offences and defences. Oxford University Press, Oxford
Gowans C (1994) Innocence lost: an examination of inescapable moral wrongdoing. Oxford University Press, Oxford
Hampshire S (1983) Morality and conflict. Harvard University Press, Cambridge
Hare R (1972) Rules of war and moral reasoning. Philos Public Aff 1(2):166–181
Hart HLA (1961) The concept of law, [1994], 2nd edn. Clarendon, Oxford
Hart HLA (1968) Punishment and responsibility. Oxford University Press, Oxford
Hart HLA (2013) Discretion. Harv Law Rev 127(2):652–665
Himma K (1999) Judicial discretion and the concept of law. Oxf J Leg Stud 19(1):71–82
Hollis M (1982) Dirty hands. Br J Polit Sci 12(4):385–398
Kaufman I (1984) The anatomy of decisionmaking. Fordham Law Rev 53:1–22
Lacey N (2013) The path not taken: H.L.A. Hart’s Harvard essay on discretion. Harv Law Rev 127(2):636–651
Maroney T (2011a) Emotional regulation and judicial behavior. Calif Law Rev 99(6):1485–1555
Maroney T (2011b) The persistent cultural script of judicial dispassion. Calif Law Rev 99(2):629–681
Nagel T (1972) War and massacre. In: Cohen M, Nagel T, Scanlon T (eds) War and moral responsibility. Princeton University Press, Princeton, pp 3–24
Nielsen K (2000) There is no dilemma of dirty hands. In: Ryman P, Shugarman DP (eds) Cruelty and deception: the controversy over dirty hands in politics. Broadview Press, Peterborough, pp 139–155
Posner R (2008) How judges think. Harvard University Press, Cambridge
Shaw G (2013) H.L.A. Hart’s lost essay: discretion and the legal process school. Harv Law Rev 127(2):666–727
Stocker M (1990) Plural and conflicting values. Clarendon, Oxford
Tillyris D (2015) ‘Learning how not to be good’: Machiavelli and the standard dirty hands thesis. Ethical Theory Moral Pract 18(1):61–74
Walzer M (1974) Political action: the problem of dirty hands. In: Cohen M, Nagel T, Scanlon T (eds) War and moral responsibility. Princeton University Press, Princeton, pp 62–82
Walzer M (1977) Just and unjust wars. Basic Books, New York
Walzer M (2004) Arguing about war. Yale University Press, New Haven
Williams B (1981) Moral luck. Cambridge University Press, Cambridge
Acknowledgements
For helpful conversations on some of the issues addressed in this paper, I thank Nathan Biebel, Jared Clay, Jonathan Riley, and DeVilliers Steyn. For comments and suggestions on earlier drafts of this paper, I am extremely grateful to Thomas Mulligan, David Shoemaker, and two anonymous reviewers at ETMP.
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Tigard, D. Judicial Discretion and the Problem of Dirty Hands. Ethic Theory Moral Prac 19, 177–192 (2016). https://doi.org/10.1007/s10677-015-9608-2
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DOI: https://doi.org/10.1007/s10677-015-9608-2