Cultivating and Maintaining Adjudicative Virtue in a World of Constraints

As I mentioned in a previous post, taken together, competence, compassion, consistency and collaboration are virtues which, where present, establish tribunal excellence and constitute the inner morality of administrative adjudication. Cultivating and maintaining these virtues is, however, a significant challenge.

Cultivating Virtue

Virtues have to be cultivated. Administrative adjudicators, in this sense, are continually coming into being, continually in a process of perfection. It is (almost) always possible to be more competent, more compassionate, more consistent and more collaborative. Tribunal leaders can facilitate the cultivation of these virtues, as can individual adjudicators operating on their own initiative or, informally, with their peers, by training and development to hone their subject-matter expertise, increase their compassion (or cultural competence), improve their reason-writing and expand their knowledge about practices in their own tribunal and other tribunals.

Being virtuous, however, is not easy. We live in a world of constraints and administrative adjudicators are no different. Cultivating virtues is one thing, maintaining them in the face of constraints is quite another.[1]

Maintaining Virtue

There may, occasionally, be conflict between the virtues. Compassion and competence might, for instance, come into conflict in some scenarios, as where dealing compassionately with a self-represented litigant takes so much time as to compromise rapid and efficacious decision-making. Consistency and compassion, similarly, might occasionally rub antlers, as where compassionate treatment would violate some long-standing procedural or substantive rule observed by a tribunal. Consistency and competence, too, might sometimes be incompatible, as where an adjudicator is convinced, in applying his or her expertise, that a previous decision should not be followed. Collaboration, as with compassion, may eat into the time available to render quick decisions, thereby undermining competence:

For conscientious [adjudicators], who aspire to retain a rich and multifaceted conception of their role and responsibilities, the terrain is, so to speak, mined. Since the requirements are impossible to reconcile, any resolution is bound to create dissonance. Whatever they decide to do, the chosen course of action – even if it is a good one – will smack of compromise: it will be short of optimal on at least one of the dimensions that matter.[2]

Adjudicators operate with limited resources. They have only so much energy and only so many hours in the day in which to adjudicate and engage in the activities – such as reason-writing and informal contact with peers – which make them virtuous adjudicators. In a world where administrative autonomy has no constitutional protection, they may spend much of their time wrestling with civil servants about office space, IT services and other mundane matters. In a world where their security of tenure and administrative autonomy depends, in the final analysis, on their political muscle.

It may also be in the nature of some decision-making scenarios, moreover, that certain virtues are difficult to exercise. One example is that adjudicators charged with dealing with mass claims – licensing or social welfare structures spring to mind – may not have the scope to be particularly compassionate in responding to the circumstances of individual applicants. Another is that consistency may be difficult to achieve in decision-making scenarios which are highly discretionary and subjective.

In scenarios where there is conflict between the virtues, limited resources or little room for some of the virtues, there is little for the virtuous adjudicator to do but do her best. Sometimes it is difficult, perhaps even impossible, to be perfectly virtuous, operating at 100% competence, compassion, consistency and collaboration. Here, Robert Browning comes to mind: an adjudicator’s reach must exceed his or her grasp; else, what’s virtuous adjudication for? Part of the point of the “inner morality” of adjudication, as with Fuller’s “inner morality” of law, is that is an ideal which can never be firmly grasped.

More concretely, some of the literature on street-level bureaucrats reveals some coping strategies: Musheno and Maynard-Moody point to the sharing of narratives,[3] whilst Zacka proposes reflective practices of the self[4] as means of dealing with constraints.

These can, I think, be transposed to the adjudicative context. To begin with, recognition that the virtues need to be maintained, not simply cultivated, on an ongoing basis can act as a salve in times of stress. Forums for sharing stories can be a powerful means of maintaining one’s sanity, as Musheno and Maynard-Moody observe: even where there are resource constraints, tribunal leaders can make forums available, formally or informally, ideally bringing in peers from other adjudicative settings to lend a sympathetic ear or offer suggestions about how to maintain virtue in a world of constraints. Reflective practices of the self allow adjudicators to constantly assess and reassess their roles – with the help of peers – safe in the knowledge that a perfect combination of competence, compassion, consistency and collaboration is an ideal which can be strived towards but never quite reached.

Obviously, political and legal reforms to strengthen the funding and constitutional position of administrative adjudication would greatly support the cultivation and maintenance of the virtues of competence, compassion, consistency and collaboration. Short of those, adjudicators and tribunal leaders need to recognize that they cannot be perfectly virtuous, all of the time, and that the community they form is a support network which can provide sustenance in a world of constraints.

[1] See generally Bernardo Zacka, When the State Meets the Street: Public Service and Moral Agency (Harvard University Press, Cambridge, 2017), p. 135:

The point is not the familiar one that the environment in which individuals are placed is necessary for the acquisition of virtue; it is, rather, that virtuous behavior must be sustained on an ongoing basis by features of the environment and by everyday practices that the environment makes possible…The implications for moral formation are significant. Instead of encouraging bureaucrats to develop character traits that would render them impervious to their surrounding environment…bureaucrats should be encouraged, rather, to identify and promote situational factors and environmental conditions that support the behavior or disposition to which they aspire (emphasis original).

[2] Bernardo Zacka, Where the State Meets the Street: Public Service and Moral Agency (Harvard University Press, Cambridge, 2017), at p. 123.

[3] Steven Maynard-Moody and Michael Musheno, Cops, Teachers, Counselors: Stories from the Front Lines of Public Service (University of Michigan Press, Ann Arbor, 2003).

[4] Bernardo Zacka, Where the State Meets the Street: Public Service and Moral Agency (Harvard University Press, Cambridge, 2017), at p. 141 describes these as “exercises in self-examination, exercises in calibration, and exercises in modulation”, the objective of which is (at p. 151) to “constantly monitor, modulate and calibrate their moral dispositions by making creative use of the resources (collegial, informational, architectural, etc) that their environment makes available to them”.

This content has been updated on April 15, 2020 at 01:29.