Public discussion on the judiciary, judges’ role, and political position has been particularly intense and emotional. The language and arguments used in this debate, both at the media and the expert levels, are often inconsistent and heavily influenced by very different moral and political assumptions of the people who formulate them. The courts and judges are often described with extremely varied evaluative terms (“good”, “bad”, “unworthy”, “political”) resulting from different premises. These assessments are often formulated to individual cases and particular decisions (deeds) and then extended to assessing individuals, institutions and even the entire professional group. This state of affairs occurs to varying degrees of severity in particular discourse types (media, public, private, and even expert and scientific). This project aims to formulate a proposal that could organize the moral language in which the assessments of judges, their professional activities and the judiciary are formulated. This will serve the purposes of reformulating the scientific discourse in legal sciences. However, a wider impact of the research results on science and public debate is not excluded.
The theoretical basis on which this research is based on the concept of virtue ethics. This approach is undergoing a renaissance within the moral theory. It is, in fact, a proposal to return to the widespread ethical language of antiquity, propagated by Aristotle, the Stoics, or – in the Chinese civilization – by Confucius. Instead of focusing on “duties” and “oughts” (this approach is called deontological) or determining actions as bad or good from the perspective of their consequences (consequentialism), virtue ethics proposes to focus on the characteristics of the subject. Representatives of this approach argue that it is better to focus the moral assessment on people’s attitudes and characters as moral subjects and to value their motives and intentions rather than to consider impersonal principles and evaluations based on the moral rightness of given conduct.
The virtue theory or aretaic theory (in Greek arête means virtue or excellence) has already been applied to many fields of ethics (e.g. to bioethics, medical ethics), and only to a small degree has penetrated legal sciences (legal theory, legal ethics). This project develops an aretaic approach to legal theory by attempting to formulate a theory of the judges’ virtues. The research team will analyze the various concepts of the virtue theory, given its application in law. Next, the main part of the project will focus on reconstructing the catalogue of judicial virtues. To achieve this, an attempt will be made to analyze various aspects of Poland’s legal culture in search of the answer to the question of what qualities of character of judges are recognized and accepted as judicial virtues. Legal culture is a broad concept and includes not only the law itself and the forms of its application (e.g. judgments of the courts) but also the state of knowledge about the law (both among lawyers as well as non-lawyers) and the perception of the law and its representatives, e.g. judges, which often manifests in the form of creations of culture: literature, film, art. Based on the analysis and interpretation of these sources, a certain picture in the eye of the society of the desirable virtues and the disapproved vices of lawyers, including judges, can be reconstructed. Because Poland is a member of the European Union and the EU courts headed by the Court of Justice of the European Union play an important role in the Polish legal system, we also need to ask the question about the desirable characteristics of a European judge by way of conducting a similar analysis. This will allow us to compare the two sets of virtues, reconstructed in these slightly different contexts, and define the judicial character.
The project will aim to relate the developed concept of judicial virtue, along with the catalogue of specific virtues, to the judiciary and judges’ situation on the example of Poland. Checking whether the idea of describing the judicial roles in the virtue theory’s language can be useful for the legal scholarship requires confronting it with specific problems. First of all, it is necessary to answer whether looking at the role of judges through the prism of their virtues is the proper and the best criterion for selecting people for the judicial offices. Secondly, it is worth considering the relationship between a specific set of judicial virtues and the overall dimension of exercising the judicial function. Does having some virtues make judges better from the perspective of the decisions they take (adjudication) so that it increases the independence of individual judges and, consequently, the whole of the judiciary? In other words, whether a judge with the right set of virtues is more independent in adjudication or the institutionally guaranteed independence is a prerequisite for the development of virtues constituting a good judge. This project seeks to answer these and some other, more specific questions to propose a better theory and language concerning judges and the judiciary’s assessment.