Loyalty to client, conviction, or constitution? The moral responsibility of public professionals under illiberal state pressures

ABSTRACT

Public professionals do not only serve their clients but also – by doing so – the public at large. The state often has a direct grip on their work, through financing, regulation or otherwise. This leads to a deeply felt conflict in contexts where authoritarian, illiberal leadership is widespread. Public professionals then face a moral dilemma: should they resist illiberal pressures by the state, or continue to obey their states? The paper's main question is how this practical dilemma for public professionals should be interpreted. First, it presents a framework to interpret the professional situation, characterising it as a fiduciary relation, which we can understand through the lens of Thomas Hobbes's theory of authorisation/representation. On this theoretical basis, the paper discusses three competing models for understanding the public professional's predicament. The teleological model revolves around loyalty to one's clients. The conscientious professional model which is about loyalty to one's own moral convictions. The constitutional model is about loyalty to constitutional principles. The paper argues in favour of the constitutional model. Standing up against illiberal pressures is best interpreted as a matter of loyalty to the principles of constitutionality that underly the fiduciary relation between citizens and their states.

KEYWORDS:

• Professionalism
• constitutionalism
• Thomas Hobbes
• fiduciary relations
• illiberal democracy

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 ‘Deze rechter strijdt tegen de totale verwoesting van de Poolse rechtspraak’, De Volkskrant <https://www.volkskrant.nl/nieuws-achtergrond/deze-rechter-strijdt-tegen-de-totale-verwoesting-van-de-poolse-rechtspraak~bc2f8669/>.

2 ‘Een rechter minder, een vijand erbij’, NRC <https://www.nrc.nl/nieuws/2019/11/17/een-rechter-minder-een-vijand-erbij-a3980649>.

3 Brett Smith, ‘Artificial Persons and the Academy: A Story’ in N Short (ed), Contemporary British Autoethnography (2013), 187.

4 In this paper I conceive of liberal (or constitutional; the terms used as synonyms in this paper) democracy as a regime with two separate components: the liberal component refers to respect for the rule of law and human rights (constitutionalism) and the democratic component to popular procedures (general elections) for selecting the main government officials. Thus defined, the two are separate requirements, and ‘illiberal democracy’ is not an oxymoron. Illiberalism refers to the violation of one or more principles of ‘constitutionality’, or ‘the rule of law’, as defined in section 4 below.

5 There is a body of work in each of these fields. For example, for the media see CE Baker, Media, Markets, and Democracy (Cambridge University Press 2002); for legal ethics see David Luban and W Wendel ‘Philosophical Legal Ethics: An Affectionate History’ [2017] Georgetown Journal of Legal Ethics 30 (3) 337; for academia see Derek Bok, Universities in the Marketplace. The Commercialization of Higher Education (Princeton University Press 2003).

6 Terrence Kelly, Professional Ethics. A Trust-Based Approach (Lexington Books 2018), 5; similarly Albert Dzur, Democratic Professionalism. Citizen Participation and the Reconstruction of Professional Ethics, Identity and Practice (The Pennsylvania State University Press 2008), 45–46.

7 Eliot Freidson, Professionalism. The Third Logic (Polity Press 2001), 17.

8 Tamar Frankel, Fiduciary Law (Oxford University Press 2011), 2; Paul Miller, ‘The Fiduciary Relationship’ in Andrew Gold and Paul Miller (eds), Philosophical Foundations of Fiduciary Law (Oxford University Press 2014), 69; Evan Fox-Decent, Sovereignty's Promise. The State as Fiduciary (Oxford University Press 2011), 29.

9 See also the distinction between contextual and juridical incapacity, in Fox-Decent (n 8) 102.

10 This may or may not entail that the beneficiary maintains the right to perform the actions herself as well; this depends on the concrete relation.

11 I will treat professionals and their organisations (and the management of these organisations) as one entity, ignoring the internal issues between them.

12 I will stay agnostic here about how to identify ‘true’ public interests. This could be identified by economic theory, as a public good, by legal theory, as a constitutional right, by moral theory as a basic need, etc.

13 See also the typology of professional-state relations, developed in Freidson (n 7) 138.

14 Fox-Decent (n 8).

15 Evan Criddle, ‘Fiduciary Foundations of Administrative Law’ [2006] UCLA Law Review 54 (1) 117.

16 Ethan Leib, David Ponet and Michael Serota, ‘A Fiduciary Theory of Judging’ [2013] California Law Review 101 (3) 699.

17 Evan Criddle and Evan Fox-Decent, ‘The Fiduciary Constitution of Human Rights’ [2009] Legal Theory 15, 301; See also essays collected in Evan Criddle and others (eds), Fiduciary Government (Cambridge University Press 2018).

18 See Fox-Decent (n 8) 1–19) and Miller (n 8) 70–71; Paul Miller, ‘Fiduciary Representation’ in Evan Criddle and others (eds), Fiduciary Government (Cambridge University Press 2018). For use of Hobbes in the professional context, see also Elizabeth Wolgast, Ethics of an Artificial Person. Lost Responsibility in Professions and Organizations (Stanford University Press 1992).

19 Thomas Hobbes, Leviathan (first published 1651, Cambridge University Press 1991), 111.

20 Hobbes (n 19), 112.

21 The passage plays upon a double meaning: ‘authorship’ in the creative sense of being at the origin of an act merges with ‘authority’, the right to perform an act.

22 Monica Vieira, The Elements of Representation in Hobbes. Aesthetics, Theatre, Law, and Theology in the Construction of Hobbes's Theory of the State (Brill 2009); David Runciman, ‘Hobbes's Theory of Representation: Anti-Democratic or Proto-Democratic?’ in Ian Shapiro and others (eds), Political Representation (Cambridge University Press 2010); Quentin Skinner, ‘Hobbes on Persons, Authors and Representatives’ in Patricia Springborg (ed), The Cambridge Companion to Hobbes's Leviathan (Cambridge University Press 2007).

23 Technically, Hobbes's theory comes closest to agency law (which regulates the relations between principals and agents), which is only one specific fiduciary relation.

24 Alasdair MacIntyre, After Virtue (Duckworth 1985).

25 Benjamin Freedman, ‘A Meta-Ethics for Professional Morality’ [1978] Ethics 89 (1), 1; Judith Andre, ‘Role Morality as a Complex Instance of Ordinary Morality’ [1991] American Philosophical Quarterly 28 (1) 73.

26 See also the discussion of amoral lawyering by Van Domselaar and De Bock, elsewhere in this special issue.

27 David Miller, Principles of Social Justice (Harvard University Press 1999), 116–122.

28 Dzur (n 6) 66.

29 This point may be valid for certain professions normally classified as private as well (to the extent that there are important public interests at stake), but here the claim is that it certainly holds for public professions.

30 The point can be pretty sarcastic, given many populists’ own anti-democratic view of politics. For a comparison between the anti-democratic nature of populism and technocracy, see Daniele Caramani, ‘Will vs. Reason: The Populist and Technocratic Forms of Political Representation and Their Critique to Party Government’ [2017] American Political Science Review 111 (1) 54.

31 The wider context of these points is that, since the 1960s, Western societies have witnessed a large-scale backlash against what Albert Dzur has called the ‘social trustee model’ of professionalism, which developed over the course of the nineteenth and twentieth century as a follow-up to the Medieval guilds under modern conditions. Professional groups were able to withstand the pressures of both capitalist markets and bureaucratic states, by providing the public a mutually favourable exchange: social status, a high reputation and convenient income for professionals, in exchange for socially valuable services. Since the 1960s many professions came under increased scrutiny, as their claims to expertise were treated with increasing skepticism. Some even speak of an ‘assault on professionalism’, see Freidson (n 7) 179; Rebecca Roiphe, ‘The Decline of Professionalism’ [2016] Georgetown Journal of Legal Ethics 29 (3), 649, 668).

32 Freedman (n 25); Mike Martin, ‘Rights and the Meta-Ethics of Professional Morality’ [1981] Ethics, 619.

33 For Gewirth, general morality should be formulated in terms of a set of moral rights to the basic conditions of individual agency.

34 Alan Gewirth, ‘Professional Ethics: The Separatist Thesis’ [1986] Ethics 96 (1) 282, 295.

35 idem 296.

36 I see this not as a rejection, but as an extension of Gewirth's ethical universalism. It is an improvement over de-contextualized forms of universalism which judge actions right or wrong disregarding the context. His theory is attentive to context, since it is open to the possibility that certain actions which would be wrong outside of an institution, may be justified within that institution. This openness is embedded in a universalist theory since the purpose of the institution must be itself legitimate from a universalist standpoint. This now needs to be extended in that the credentials of liberal democracy need to be tested from this standpoint, before judging concrete liberal democratic professional practices.

37 cf. the idea behind process-based review, as discussed by Davies & Henderson, elsewhere in this special issue.

38 The first claim is accepted by Hobbes and all his successors in the social contract tradition; the second claim is introduced by Locke, Rousseau and others in the same tradition, and widely accepted today in mainstream Western political philosophy.

39 Obviously, some illiberal democrats have risen to power with less-than-perfect elections, where one could argue the democratic process was distorted (from Facebook-based manipulation of discourse, to gerrymandered districts, polling stations double-counting votes, etc.). Let's assume this is not the case.

40 This does not prevent the professional from holding on to his moral beliefs qua citizen, and trying to realize these beliefs in democratic processes. And indeed, the illiberal democrat will refer the revolting professional to that arena. If you believe the judiciary should be independent, try getting a majority around that proposal! Obviously this course of action is open to the professional, but his political activities are not the focus of our inquiry: we wanted to know whether professionals qua professionals have a moral responsibility to resist what they deem to be illiberal state rule of their own professional practice. It will also not help to reclassify actions of professional disobedience as political acts. For example, perhaps Katherina's decision to publish from the Pentagon Papers should be interpreted as an act in the political arena, not a professional one. However, I will not avail myself of that way out. Even if these acts are also political, they are always also professional acts. In that context, we are looking at them here.

41 The first half of this sentence asks for a context-specific argument, which differs for every practice. In the following I presume these arguments are available; and focus on the general requirement, expressed in the second half of the sentence.

42 This is connected to Hobbes's insight that before the act of representation by the state (i.e. government), there is no such thing as a singular public. Hence, public power is the only way to create legal order, given each private individual's incapacity to create legal order herself. See the next section, on ‘constructivism’.

43 Fox-Decent (n 8) 25–26.

44 idem 35.

45 Wolgast (n 18) 45–57.

46 John Rawls, ‘Kantian Constructivism in Moral Theory’ [1980] The Journal of Philosophy 77 (9), 515, 546.

47 See also the discussion of the judge's position and expertise, in Davies and Henderson, elsewhere in this special issue.

48 Miller (n 8) 71; similarly Gerald Postema, ‘Moral Responsibility in Professional Ethics’ [1980] New York University Law Review 55 (1), 63, 77; Deborah DeMott, ‘The Fiduciary Character of Agency and the Interpretation of Instructions’ in Andrew Gold and Paul Miller (eds), Philosophical Foundations of Fiduciary Law (Oxford University Press 2014), 322.

49 Luban and Wendel (n 5).

50 Thomas Fossen, ‘Constructivism and the Logic of Political Representation’ [2019] American Political Science Review 113 (3), 824.

51 We can see basically the same problem in contemporary democratic theory, where a key debate is whether representatives ought to act as delegates for those they represent within a clear mandate, or rather as independent trustees, on an open mandate, see Hanna Pitkin, The Concept of Representation (The University of California Press 1967); David Runciman, ‘The Paradox of Political Representation’ [2007] Journal of Political Philosophy 15 (1), 93. In the political context, the most acute expression of this problem is the phenomenon of civil disobedience: may citizens dispute the actions of the Sovereign (and at the limit, revolt against him), on the grounds that he has overstepped or otherwise violated his mandate? Or have they irrevocably transferred the right to the decisive interpretation of the mandate to their agents? Hobbes, Locke, Rousseau, Kant and others have been divided about the issue.

52 In my view, this is convincingly argued in Runciman (n 22); The underlying question is whether individuals in a state of nature who are authorising a sovereign are giving up their natural right to govern themselves, or retain that right but merely authorise the sovereign to use (borrow) that right. See Vieira (n 22) 174.

53 This block's objections from illiberal democrats that they don't care about the rule of law, because they are expressing ‘the will of the people’. From the illiberal democrat's perspective, whatever strength specific rule-of-law principles are to have in practice, is to be decided in a democratic process. The relationship between democracy and the rule of law is itself subject to vehement debate, both in practical politics and in political theory. The illiberal democrat asserts a radical priority of democracy over the rule of law, while the fiduciary framework works from a priority of the rule of law over democracy.

54 The argument in this paper can hence be seen as coming to a similar conclusion as Habermas's co-originality thesis about constitutionalism and democracy.