This special issue focuses on the question of how professionals who deal with complicated, boundary-crossing, global challenges can develop judgment skills for ethically using the discretion they have in executing their roles as professionals in these complex fields.
Global challenges, for example climate change or access to medicine, cause uncertainty about the conditions for legitimate decisions, which can have effects beyond a specific time and place. Also, these challenges put to the test the ability of local professionals to fully oversee the consequences of their actions. At the same time, it is the actions of these legal and policy decision-makers that co-shape the nature and impact of these challenges, for both current and future generations, locally and globally. This uncertainty and influential role entail a responsibility for professionals to address complex questions and respond to highly-contested points of view. In light of this responsibility, there is an increased need for professional ethical judgment, meaning the assessment of legal and policy questions and of case-specific professional dilemmas on the basis of a clear and explicit ethical frame of reference.
This special issue brings together academics from different disciplines (law, ethics, political philosophy, and geosciences) to explore how professionals can establish a frame of reference for ethical judgment which enables them to deal with the questions and dilemmas posed by global challenges. It uses concrete case studies to provide a context-specific understanding of the questions and dilemmas faced in relation to certain of these challenges. Contributions focus on professionals’ ethical judgment in relation to climate and environmental crises (Hegger et al., Davies and Henderson, Mak), access to medicine (Couso), large scale civil liability cases (Van Domselaar and De Bock), illiberal state pressures (Claassen) and the combined phenomena of the judicialization of politics and politicisation of judiciaries (Snijders). The types of professionals focused on range from judges (Davies and Henderson, Mak, Couso, Claassen, Snijders) to journalists and professors (Claassen), lawyers (Van Domselaar and De Bock), and scientists and policy makers (Hegger et al.). In addition to the insights which are specific to these contexts and professionals, each contribution strives toward designing or refining frameworks which can inform and guide the professional ethical judgments needed to address the complexity and uncertainty of global challenges.
The common thread running through all contributions is the search for principles and guidelines in situations in which professionals have some degree of discretion. The contributions provide insights into conditions and points of reference for ethical judgment in this sphere of discretion to accommodate decision-making that is neither arbitrary nor completely pre-determined. The contributions are clustered in two sets.
Part I focuses on identifying and developing principles and frameworks for ethical judgment that apply in both national and global contexts, but that perhaps become more pertinent when dealing with the often wider scope of discretion present with regard to global challenges.
Rutger Claassen analyses the meaning of the moral responsibility of public professionals who are faced with pressure from authoritarian, illiberal leadership. Hobbes’s theory of authorisation serves as a basis for understanding the professional’s situation as a fiduciary relationship, which ultimately binds the professional to citizens. Claassen explores this relationship from three perspectives: loyalty to one’s clients (teleological model), loyalty to one’s own moral convictions (conscientious professional model), and loyalty to constitutional principles which underpin the relation between citizens and their states (constitutional model). He makes a case for the third model as providing public professionals with the strongest legitimation for standing up against illiberal pressure. This analysis focuses on the context of states, but opens up directions for further research on moral responsibility in relation to a global civil society.
Laura Davies and Laura Henderson describe how the uncertainties caused by transboundary, complex issues – sketched with regard to the concrete example of the rights of future generations to a healthy and liveable environment – can be situated in a destabilising model of adjudication, meaning a model of judging which accepts that law is inherently uncertain. Process-based review could enable judges to deal with empirical and normative uncertainties, yet does not solve the fundamental issue of deciding who are stakeholders that should be included in the decision-making (how many future generations). Davies and Henderson argue in favour of an ethic of responsibility, in which judges become receptive to the needs of those who are excluded from the democratic process, and reflect on the ‘moral remainders’ of their judgment.
Thom Snijders examines whether and how virtue-based approaches to adjudication offer practical guidance to judges in averting the politicisation of judiciaries, a phenomenon that poses a substantial risk for the independence and impartiality of judicial institutions. After outlining a number of core elements of virtue-based approaches to adjudication, he sketches the outlines of two strikingly contrasting answers to this main question, by exploring two alternative approaches from within a broadly virtue-based perspective. First, building on the work of Iris van Domselaar, he explores how judges may take up a proactive role in averting politicisation, by becoming more responsive to the tragic character of cases and by deciding as ‘civic friends’. Secondly, and as a contrasting theory, he explores and assesses the implications of Alasdair MacIntyre’s diagnosis of modern moral discourse and philosophy, and suggests that this perspective casts doubt on judges’ and courts’ ability to avert politicisation in the judicialized legal landscape. Snijders proposes building connections with empirical insights into politicisation to test the explanatory force of Van Domselaar’s and MacIntyre’s perspectives. Furthermore, he observes that further studies are required to finetune our understanding of the meaning of civic friendship in contemporary contexts.
Iris van Domselaar and Ruth de Bock explore which framework is suitable for decision-making by corporate defence lawyers who represent and advise corporations that are implicated in the violation of citizens’ rights. Although their analysis highlights large-scale liability cases in the Dutch context, its outcomes are pertinent to other national contexts and to the international context as well. First, Van Domselaar and De Bock evaluate and reject the dominant working philosophy of corporate lawyering, that of amoral lawyering. They argue that in corporate liability cases this philosophy falls short of meeting societal demands of corporate social responsibility and risks normalising and morally justifying a practice in which economic interests of corporations are valued more than the effectuation of legal rights of victims of corporate wrongdoing. Van Domselaar and De Bock examine whether a high commitment theory of legal ethics, which acknowledges third party and public interests, could be a viable alternative. They see merits in this type of ethical framework, yet observe that major obstacles relating to the current dependency of lawyers on law firms and their corporate clients would need to be overcome in order for a high commitment theory to successfully guide the ethical decision-making of individual professionals.
Part II places the accent on the fine-tuning of available frameworks for professional ethical judgment in relation to the handling of a concrete societal challenge. The case studies focus on decision-making in national contexts, but bring to the fore how comparative and global factors affect this decision-making.
Elaine Mak explores the role which a code of ethics for judges can have for enhancing judicial decision-making (a guiding ‘signpost’ function) and for explaining judgments to parties in court cases and the general public (a symbolic ‘beacon’ function). She develops a rich case study of the Dutch context, focusing on the Guide to Judicial Conduct (2011) (GJC) and the extent to which judicial approaches in the climate-change related Urgenda cases can be understood in relation to the GJC’s guidelines. Central to this context is a contemporary notion of ‘T-shaped’ judicial professionalism, involving knowledge, skills, and an ethical mind-set which enable judges to meet societal demands of responsive law and legal institutions. Mak combines theories of judgecraft (Kritzer) and judicial virtues (Van Domselaar) to concretise practical and ethical requirements which fit with this contemporary notion of professionalism. She then analyses how these requirements come to the fore in the GJC and how they may have guided the judges in the Urgenda cases and clarified their judgments for the parties and society. Mak’s analysis confirms the conclusions of available scholarship on the function of codes of ethics, while providing detailed and nuanced insights into the guiding and explanatory potential which a code of ethics for judges can have, in particular in cases concerning complicated, global challenges which are closely scrutinised by politicians and citizens.
Javier Couso considers the tension between judges’ duty to apply the positive law on the one hand, and their duty to ensure that justice is delivered in individual cases on the other hand. He examines how this tension is navigated in judicial practice by looking at the judicialization of medical issues in Latin America, which was facilitated by the development of rights-based constitutionalism. His comparative discussion of relevant case-law from Costa Rica, Colombia, and Argentina reveals how Latin American apex courts have tended to prioritise the individual right to health, extending far-reaching protection to litigants who suffer from rare medical conditions and demand governmental coverage of their medical expenses. In his analysis, Couso critically engages with this body of case-law, suggesting that – while judgments may have had a positive effect on governments’ actions to improve healthcare systems – the courts in question have neglected the cumulative impact of their decisions on national health budgets. Couso outlines how this may negatively affect the rights of other citizens and he argues for a more balanced judicial approach, based on the recognition of a professional ethical duty of judges to consider the fiscal/budgetary impact of judgments in which they order the delivery of medication. This case study of judicial approaches in Latin America regarding the globally relevant issue of access to medicine offers insights which can also inspire judges elsewhere in the world.
Dries Hegger, Peter Driessen, Esther Stouthamer and Heleen Mees focus on the role of science-policy-interactions in facilitating normative judgement regarding important societal decisions. The creation of science-policy-interfaces (SPIs) has been proposed as a way to enrich such normative decision-making and to improve its legitimacy. The authors nuance these claims by noting that SPIs can contribute to but may also hamper normative judgement in particular contexts, depending on how they are designed and embedded in the decision-making process. These aspects are explored and illustrated through an empirical case-study of the role of SPIs in the specific context of anthropogenic land subsidence in the western peatland areas of the Netherlands. Following their analysis of the SPIs in place there, the authors argue that normative judgement regarding this complex and unique issue would benefit from these SPIs being more open and inclusive, so that a more diverse range of interests and normative standpoints is taken into account in the relevant policy-making and decision-making processes. Additionally, the authors articulate some general implications for the ethical judgement of individual professionals involved in SPIs.
The frameworks for judgment which result from the analyses in this collection of articles provide professionals in the fields of policy-making and legal decision-making with a way forward and call attention to the large responsibility that these professionals have for how they use their discretion when addressing global challenges. We hope that readers will consider, like we do, that the studies conducted for this special issue have yielded theoretically rich and practically relevant contributions to the field of professional legal ethics.