I. Roles and Moral Reasons

In this essay, I suggest that voluntary roles in general and the judicial role, in particular, cannot create or change moral obligations.¹ This claim entails that these types of roles might be just descriptive social facts. I address the topic in two main steps:

First, I will try to aid the apparently counter-intuitive idea that everyday professional roles cannot alter moral reasons for action. I will pay special attention to the judicial role. The arguments will show that role-relative morality is misconceived and maybe does not exist at all.² More specifically, the argument will show that the idea that there are various moral standards for various kinds of professionals is inaccurate. This has some interesting implications. For example, if, as it were, role-relative morality is a myth, the following two propositions cannot both be true: (i) a citizen S is morally permitted to break a law L in a context C; (ii) a judge is morally permitted to punish S in C for breaking L. Hence, judicial ethical conduct cannot ascertain as morally correct verdicts that are contrary to reasons justified by ordinary morality, or to state differently, by our critical morality.

Second, I will lay out three accounts of role obligations and show why one of them seems more plausible than the others.

II. Three Divergent Sides

The debate around the possibility of roles operating as sources of moral obligations is currently split into three accounts: the Strong Role-generation Thesis; the Weak Role-generation Thesis; and the Norole-generation Thesis.³

The first and second ones assert that professional roles can create or change moral obligations. They are, as it were, “generative approaches”.⁴ The last one holds that roles cannot constitute moral obligations. Roles are at best repositories of moral obligations.

In what follows, I further develop these accounts and clarify what they entail.

III. The Problems of the Generative Approaches

Here I claim that, despite having some intuitive pull, generative approaches must be rejected. Consider the following scenario:

While bathing on Lake Beach, Lucky is caught up by the tide. He panics and, for that reason, is unable to swim back to the coast. Unless rescued, Lucky will drown. Emerson is the coast guard of Lake Beach, hired precisely to rescue swimmers in peril. Seeing that Lucky is about to drown, Emerson does what he was hired to do: saving swimmers in peril. Lucky is thus saved. Of course, Emerson does not just do what he was hired for. He also, intuitively, does what he was morally required to do in that situation. Can we say then that Emerson’s role qua coast guard was the source of the moral obligation to save bathers in peril?

Consider the overly distracted Lucky once more. He is drowning, again, but this time Emerson was not there to save him, Palmer was. But here is the catch: Palmer is not a coast guard; he is a triathlete. He ruminates about the situation and concludes that despite being the only person around he is not obligated to rescue Lucky. Not long after, the unlucky man drowns and passes away. Can Palmer use the fact that he was not hired to save swimmers as an excuse? It does not seem so. Being, in that circumstance, the only person capable to save Lucky, it follows that Palmer was indeed morally obliged to save Lucky. However, if Palmer had the same kind of moral obligation as Emerson, we can conjecture that the professional role of a lifesaver cannot create or alter the moral obligation to rescue drowning bathers. This obligation existed all along. It is a general obligation that we all have in some circumstances: to help those in distress if there is no significant risk to harming oneself in the process.²⁷

If I am correct, we cannot argue that the coast guard role adds something to Emerson’s moral obligations. Maybe we can say that the role of a coast guard adds more salience or responsibility to an already existing moral obligation. Then, to be a coast guard entails rescuing persons (when it is feasible) without a slight shadow of a doubt. We can also infer that, if the role does not alter one’s moral obligations, in being a coast guard the professional acquires new conditions of action; after all, Emerson is hired to preserve safety conditions for bathers. Then, it is imperative that Emerson remains watchful in his working hours, a positional duty that we clearly cannot demand from swimmers like Palmer.

Enough of Baywatch cases. Let us see if these cases tell us anything significant to the discussion about the judicial role. Right from the get-go, we can pinpoint one dissimilarity:

A triathlete can just jump into the water and save a drowning swimmer. But it is not the case that even the wisest of the moral reasoners can simply sit on the bench and issue a legal decision. Roles like those of the surgeon, lawyer, or judge have confined conditions of occupation. Typically, only experienced and licensed jurists can become judges through a public exam or government nomination. But these formal conditions do not tell us much about the need to perform moral obligations that come to be attached to these roles, they only tell what agent, as a matter of fact, can act as a professional. For that reason, I think we can use a similar rationale from the Baywatch examples to the judicial role, with the caveat that typically only a person invested as a judge can perform the functions of the role and use moral reasoning in adjudication.

My suggestion is that, just like the Baywatch case, there are pressing moral obligations that take part on adjudication, and those obligations exist despite the existence of the judicial role, or even the existence of a legal system. Hence, it is possible that some moral obligations that every person should carry out, being part of a role or not, will appear to be in conflict with the typical understanding we have of professional ethics (as the case of the said moral obligation to apply the law ascribed to judges). Thus, when confronted with a morally suboptimal case, the judge can have a moral obligation to absolve justified offenders, just as a good swimmer can rescue drowning bathers.

I think this gives us an overall reason to dispute the plausibility of the generative approaches. Let us discuss, now, particular objections against the strong and the weak thesis, with the judicial dilemma in mind.

As shown, the strong thesis claims that there are roles with their respective moral obligations, and these should be only evaluated from rules or conventions within the professional realm. I also said that some strong role theorists endorse a version of moral relativism.²⁸ In virtue of having these commitments, they simply bite the bullet and embrace the judicial dilemma: they see no problem with the opposed conflicts of rights and interests of innocent defendants and the judicial duty to apply the legal system’s standards. If the professional tenets of the judicial role lead to this conclusion, so be it.

However, this is too bitter a bullet to bite. If we embrace the dilemma we would be forced to hold that a judge could be morally excused by his professional role to sentence innocent persons because he is so required qua judge. The famous example of the abolitionist judge Joseph Story illustrates this point. He was an opponent of slavery, but nevertheless felt bound by his role as a judge to enforce the current legal standard at the time, the Fugitive Slave Act, which required the restitution of escaped slaves to their masters. In a letter to a friend, he wrote:

I shall never hesitate to do my duty as a Judge, under the Constitution and laws of the United States, be the consequences what they may. That Constitution I have sworn to support, and I cannot forget or repudiate my solemn obligations at pleasure. You know full well that I have ever been opposed to slavery. But I take my standard of duty as a Judge from the Constitution...²⁹

Thus, the problem with this account is that the strong thesis appears to create an unbridgeable gap between the putative moral obligations of the role and ordinary moral reasons or critical moral thinking. Joseph Story’s confessions show how the idea that judges have a moral obligation to be faithful and to apply the legal systems’ standards compels him to condemn justified offenders to a hideous fate. Because he thought he had a role obligation to obey the law he reached a resolution that it was not his responsibility as a professional to reach the correct moral verdict.³⁰

The strong theorist can deny this inference, but I think the denial will undermine the idea that there are insulated realms of moral valuation, the realm of professional morality, and the realm of ordinary morality. If we reject that judges have a special obligation of fidelity, because the law is unjust, we are using general and critical moral judgments to argue that judges cannot have moral obligations in these circumstances. However, how can we now maintain the idea that role obligations are justified without an appeal from ordinary morality? The strong thesis is just too strong. It can turn even wicked professional obligations into moral ones. And if we try to soften the undesired consequences, the thesis becomes incoherent.

Now we can see if the weak thesis can escape the objection above.

Because the recoursist uses ordinary morality that captures the role’s ends to discover the moral obligations of the professional, he can argue that high fidelity to the legal systems’ standards is an incorrect picture of judicial obligations. Therefore, the role of the judge has to exist because of a good purpose. So, when confronted by an evil regime or a morally suboptimal legal standard, the judge is not obligated to follow unjust directives. Thus, acting within the role, a judge has the discretion to disobey some decision rules. The recoursist’s way out can be expressed by a condition introduced by Hardimon, the reflective acceptability:

To say that a social role is reflectively acceptable is to say that one would accept it upon reflection. Determining whether a given social role is reflectively acceptable involves stepping back from that role in thought and asking whether it is a role people ought to occupy and play. Determining that a given social role is reflectively acceptable involves judging that it is (in some sense) meaningful, rational, or good.³¹

This condition is on par with the recourse view. A normative reflection about the purpose of the role is a way to inquire about its ends. However, the way I see it, the conditional falls flat to explain how roles generate moral obligations. If to recognize the ethical obligations of a role we need to step outside the usual way we perceive its obligations, how the recoursist can plausibly claim that the moral force of those obligations flows from the role itself? When querying if the role obligations of judges are really moral, we are using an external moral point of view. In other words, we are using critical morality in order to identify the moral obligations attached to a role. But if the recoursist asks us to do that, he is undermining his theory because,

If what a role really requires, rather than what it merely appears to require, depends on how it can best serve some independent value, then the normative force of the role would seem to derive from that value. Apparently, according to Hardimon, conventional understandings of the role that cannot be construed as serving the relevant value are not genuine elements of the role and do not give rise to role obligations. The independent value, then, is doing all the work in establishing obligatory force, not the social recognition of the role.³²

Thus, this middle-of-the-road strategy, sensitive towards ordinary morality, makes the weak theory incoherent because the recoursist argues for two incompatible claims: that roles constitute moral obligations; and that the instantiation of these obligations is made from an independent value, detachable from the role.

Another problem is that the recourse role account is too underspecified to solve professional dilemmas. Reflection upon the depths of the judicial role could reveal that its ends frankly entails a commitment to the legal system’s values, such as the rule of law; so absolving a justified offender will weaken those values, and judges need to preserve them. Alternatively (and probably what the recourse role theorists aspire) judges could disregard some legal standards on morally suboptimal cases because too much fidelity may produce injustice. So ultimately, the weak thesis collapses into a strong or a no-role-generation thesis.

IV. The Social Fact Outlook of Roles

Now I dedicate the final section to clarify the nexus view, the theory that I think offers the best explanation of professional roles. I also seek to lay down some of its theoretical and practical advantages.

First, let us recap that for this view, voluntary roles cannot form a moral domain on their own, and this fact implies that moral evaluation is somewhat external to the practice of a role. Thus, it appears that roles do not need to have any necessary moral content. Professional roles are simply what they are, and not what they ought to be.³³ If this is so, then to identify a role will not be so different from the way legal positivists understands law: as a descriptive social fact. For instance, Hart argued that law exists from a social rule at least accepted by the officials charged with the responsibility to administer it.³⁴ So the legal positivist does not need to engage in moral evaluation to recognize law either as coercive or as binding.³⁵ Similarly, “the existence and content of no rule of a role depends on its meeting an evaluative standard; rather, the rules of a social role just are those standards that are as a matter of social practice convergently treated as its rules”.³⁶ Thus, convergent patterns of behavior impute to one assigned-role a set of positional duties or role obligations, which the role-player shall follow.

Not surprisingly, Applbaum made the analogy and called his theory practice positivism. Because social practices are acknowledged by what they are and not for what they ought to be, the positional duties of a role can be subjected to moral criticism and, hopefully, correctly ascertained. Applbaum’s theory is on the same page with what has been suggested throughout the essay: that a role cannot generate and impinge one set of moral obligations that differ and interfere with justified reasons for action.

I believe this way of conceptualizing voluntary and professional roles has important advantages in contrast to the available alternatives.

The first one has to do with its clarity. The nexus view allows us to see clearly what professional roles entail before subjecting them to moral criticism. In addition, the theory shows its simplicity, for there is only one moral domain to scrutinize the actions of persons in general and of role-players in particular.

Here a weak role theorist could retort, “Well, our theory equally endorses evaluation from ordinary morality; professional actions just need to reflect the role’s ends”. The rejoinder is tenable, but then I can devise another layer of simplicity in favor of the nexus view, related to its coherence. Because role recoursists still insist on the constitutive role of the role, their theory loses its grip, because they face problems to explain why perverted roles cannot generate moral obligations. Consequently, they now need additional arguments to elucidate role obligations as moral.³⁷ But, as we saw, arguments like the reflective acceptability turn this generative theory internally incoherent. Hence, by insisting on the now disputed constitutive aspect of roles, the weak theorist accepts a dubious stake to reach the same goal achieved by the nexus view, namely to evaluate role obligations through ordinary morality.

Finally, the nexus view shows the meta-theoretical virtue of comprehensiveness, because its claims make an all-encompassing understanding of the character of voluntary role obligations. It explains that roles can add more salience and responsibilities to the role-player’s obligations, even if these roles are good or bad ones. If positional duties reflect a moral requirement, then the role specifies, aim at, or trigger this obligation for the agent. Now, if a positional duty is morally unjustified, the role can still add saliency, but from a different nature. Maybe the agent obeys his role obligations for prudential, self-interest reasons, or reasons of conformity, but these reasons do not bind the agent morally, because they are incapable to trigger moral obligations.

By consequence of these advantages, the No-role-generation Thesis can be a fruitful rationale to solve professional dilemmas properly, such as the judicial one. The theory diminishes an impression regarding morality (one arguably caused by our strong rolerelative attitudes): the tendency to state its conflicting character, as a domain that turns agents into moral gladiators in an arena of disagreement “in which one’s moral success would depend on another’s moral failure”.³⁸ When we effectively have only one evaluative domain to analyze the correctness of role obligations, our chances to reach better and less contentious decisions (or verdicts), appears to be facilitated.

Lastly, I would like to conclude with a suggestion that follows from the reasoning built up until here. It seems that the arguments addressed in the essay led me to endorse a normative “externalist” strategy of role-evaluation.³⁹ After all, we saw that probably we need to evaluate the moral obligatoriness of professional directives from a point of view that “appeals to standards beyond the particularities of institutionally specified role obligations”.⁴⁰ If this is correct, then perhaps every responsible moral agent needs to distance itself as much as possible from the strictures of a role to reflect critically if its duties imposed are really justified. As Applbaum once said, “judgments about the legitimate authority of a role can and must always be made from a standpoint outside the role, within one’s own shoes”.⁴¹ This moral posture appears to be a natural consequence for theorists that think that role-relative morality is a kind of a myth.