TOOLS OF THE TRADE – OCTOBER 2021
CODE OF ETHICS PRACTICAL APPLICATION: FORTITUDE
(ESSAY 3 OF 4)[1]
Introduction
The types of conduct, duties and responsibilities expected of arbitrators are listed in the Association of Arbitrators (Southern Africa) NPC’s Code of Ethics (the Code). It mirrors the reasonable behavioural expectations of parties to arbitral proceedings, as well as those of society at large. In essence, the Code stipulates the high standards of conduct expected of arbitrators so as to ensure continued confidence in the process of alternative dispute resolution (ADR).
Put another way, the Code generally informs us what needs to be done or not done; and how it should be done and how not done.
When we reflect back on the series Critical Thinking and Logical Reasoning[2] we recall that it too provides us with guidelines on what steps to take and how to reason. Fortitude, the topic of discussion in this essay, differs in the sense that it tells us that a task must be done and gives us the will and courage to act on it.
In the current series Practical Application of Ethics,[3] we find that both prudence (the virtue for the protection of reason) and justice[4] (the virtue that guides the order of reason in all human affairs) are in every instance universal and anonymous. In this essay, we shall find that fortitude is different in the sense that it is the most personal and singular of all the cardinal virtues. It is firmly anchored in the ‘self’ and provides the backbone, or ethical hinge, that navigates our moral strength, courage and firmness of mind to actualise living an ethical life.
Rule 8.1 of the Code, stipulates that ‘an arbitrator should only accept an appointment if he or she is satisfied that that he or she will be able to act without bias, self-interest or fear of criticism.’ (Emphasis added.)
The operative phrase, requiring fortitude, is ‘should only accept’. This indicates the willingness to take on the challenge, and then to act on it. Since arbitrators are obligated to act without bias, self-interest or fear of criticism, they are well aware of how high the bar is set when assuming an arbitral mandate. It is for this reason that they are required to practice habitual fortitude – that is to take on the task and to act with courageous assertiveness – to ensure a fair, prudent, efficient and understandable arbitral proceeding and to make a final reasoned award.
Against this analysis, the conditional wording of, and implied injunction in, rule 8.1 of the Code can better be understood: ‘Do not accept an appointment as an arbitrator unless you will be able to act without bias, self-interest or fear of criticism’. So, when confronted with the election of accepting an appointment as an arbitrator, the potential appointee can either refuse to accept such appointment because they feel unable to act without bias, self-interest or fear of criticism; or accept it where they are confident that they are able to comply with such stated requirements and shoulder the concomitant burdens associated with it.
Once the election has been made to accept an appointment, it is fortitude that anchors arbitrators in their quest to navigate and negate the intricately woven propensity to be influenced. Such influences can include unconscious personal biases, self-interest and fear of criticism. These can arise even if and when they are not personally invested in a particular situation.
Apart from its being personal, there is another interesting and quite unique quality of fortitude: it always plays out in the ‘now’. Our ‘now’ reality and experiences are typically imbued with adversity. There is the constant element of the unknown, of uncertainty, isolation, discomfort, sickness and death in what we are confronted with. We are locked down with restrictive measures imposed on our movement and social expression, and this is often accompanied with financial hardship and feelings of powerlessness of the parties.
The ‘now’ is, nevertheless, much more than just a moment. It is a duration, what theologian and philosopher Saint Augustine calls a ‘distension’. Distension is a concept of time measurement that includes memory and expectation through which we distinguish the order of past, present and future.[5] The ‘now’ always arises out of the past and extends toward the future.
Courage, according to French philosopher André Comte-Sponville,[6] is ‘needed to persist and endure, to withstand the tension within us, the agonising struggle between past and future, between memory and will, that is life itself and the effort of living, a struggle that is always necessary and usually difficult’.
Fortitude enables us to withstand great difficulties and reminds us that adversity does not impede our ability to act. It summons our imagination, bravery, wisdom, mental fortitude, stamina and resilience. In the words of American essayist Ralph Waldo Emmerson:[7] ‘A hero is no braver than an ordinary man, but he is braver five minutes longer’.
Before considering the practical application of fortitude, it is instructive to examine what fortitude is not.
The two vices opposed to fortitude[8]
The virtue of fortitude stands between the two opposing vices of ‘defect’ and ‘excess’.
The ‘defect’ consists of timidity or cowardice. While there exist actual fears that we would be wise to shun or flee from, cowardice compels us to avoid what virtuous life requires of us. Timidity may make one indisposed to accept an appointment and endure the hardships associated with the responsibility of impartiality. Fear of criticism may prompt one to give up easily or refrain from doing what is reasonably required of one in the face of the increasing challenges of macro-economic forces that may exasperatingly increase demands. When times are tough, we are expected to stand firm and resist cowering in the face of adversity.
The ‘excess’ consists of Insensibility to fear or foolhardiness. While there are some things that should reasonably be feared and avoided, foolhardiness may cause one to rush into danger when not required. Excess can take the forms of stupidity, pride and impulsiveness. Being presumptuous and overconfident when accepting an appointment comes from a false sense of courage.
Fortitude therefore regulates one’s tendencies to these extremes of collapse into indifference, on the one hand, or rushing in where angels fear to tread, on the other. To avoid these vices and to practically apply and recognise fortitude in action, we can now focus on its essential ingredients and driving principles.
Fortitude: Its ingredients and practical application
Fortitude is seated in an individual’s personal ethos and can be recognised by the following three sets of excellent character traits:
- Magnanimity and magnificence: The core characteristics of habitual fortitude are those of magnanimity and magnificence. Magnanimity[9] means ‘loftiness of thought or purpose, greatness of mind or heart’ and it refers to the aspiration to accomplish great things. The Latin word ‘magnanimitatem’ stems from magnus (‘great’) and animus (‘mind, soul, spirit’). It is the state of internal bravery that allows one to hold a strong vision of goals and the willingness to endure obstacles to attain them. Magnificence[10] literally means ‘to do great deeds’. The Latin word ‘magnificentia’ stems from magnus (‘great’) and facere (‘to make, to do’). With magnanimity we consider great ideas and ideals, and magnificence empowers us to accomplish these ideals with the willingness to make sacrifices along the way.
- Innovation and transformation: Having great vision, ideals and the motivation to act or to make include continual reflection and renewal of our ideas. For French philosopher Sartre,[11] invention required using the power of transcendence to control one’s circumstances rather than being controlled by them. Transformation is the willingness to break with our deeply held beliefs, ideologies and habits and project ourselves toward a new set of possibilities. As ADR systems need to adapt to the changing needs of society and the rapid advances of technology, the concepts of innovation and transformation become an essential quality in an arbitrator’s set of skills.
- Patience and perseverance: These traits give one the capacity to accept and to bear the difficulties of life with a certain equanimity or steadiness of soul. This helps one to pursue their goals in spite of difficulties, delays and fatigue.
Conclusion
Compte-Sponville quite aptly defines ‘fortitude’ as:[12]
‘[t]he courage to persist and endure, to live and to die, to hold out, fight, resist, persevere. Spinoza calls tenacity (animositas) the “desire by which each one strives, solely from the dictate of reason, to preserve his being.” But courage resides in the desire, not the reason; in the striving, not in the dictate. To be courageous is to persevere in our being (Eluard speaks of this as “le dur désir de durer” – the difficult desire to endure) and all courage is the courage of willing.’
The ‘now’ that we are all experiencing in our current environment affords us a fertile platform to demonstrate our courage and resilience. The global pandemic is impacting on every one of our own personal lives. More than that, both domestic and worldwide economies are under severe pressure. Consequently, more than ever, this requires quick resolutions to commercial disputes so as to maintain trade and commerce as best as possible. It is fortitude that brings our leadership skills to the fore and strengthens our resolution to the ethical task of creating a better future for all.
The words of Robert F Kennedy in his Day of Affirmation Address at the University of Cape Town on 6 June 1966[13] are apposite: ‘This world demands the qualities of youth; not a time of life but a state of mind, a temper of the will, a quality of the imagination, a predominance of courage over timidity, of the appetite for adventure over the life of ease.’
Our final essay on ethics will discuss the twofold meaning of justice, that is, the respect for legality and the equality or proportionality among the individuals our society.
[1] By Maritza Breitenbach, Bachelor of Science (cum laude) from North-West University (NWU); Teaching Diploma, NWU; Certificate in Small Business Management (magna cum laude) from NWU; and a Master’s degree (Philosophy in Biomedical Ethics) (cum laude), the last from the University of Stellenbosch (US).
[2] See the ‘Tools of the Trade’ section in the May 2020, July 2020, September 2020, and November 2020 editions of the E-periodical Arbitrarily Speaking!
[3] See the ‘Tools of the Trade’ section in the June 2021 and August 2021 edition of the E-periodical Arbitrarily Speaking!
[4] Planned to appear in the next ‘edition of the E-periodical Arbitrarily Speaking!
[5] Time and eternity in Augustine and Medieval Scholasticism –
https://faculty.fordham.edu/klima/augustine/Time%20and%20Eternity%20in%20Augustine.htm (accessed 2 September 2021).
[6] André Comte-Sponville, A Small Treatise on the Great Virtues: The Uses of Philosophy in Everyday Life (2002:54) William Heinemann: London.
[7] In 1921 a religious text titled Playing Square with Tomorrow by Fred Eastman ascribed this saying to Ralph Waldo Emerson, and American essayist, poet and philosopher (1803-1882).
[8] Charles Pope, The Cardinal Virtues: Fortitude (2018) https://blog.adw.org/2018/03/cardinal-virtues-fortitude/ (accessed 24 August 2021).
[9] Online Etymology Dictionary https://www.etymonline.com/word/magnanimity (accessed 28 August 2021).
[10] Ibid., https://www.etymonline.com/word/magnificence (accessed 28 August 2021).
[11] Kimberly S. Engels Ethical invention in Sartre and Foucault: Courage, freedom, transformation Foucault Studies No. 27 (2019: 95-115) https://rauli.cbs.dk/index.php/foucault-studies/article/view/5893 (accessed 20 August 2021).
[12] Compte-Sponville (n 6 above) 52 and 53.
[13] John F. Kennedy Presidential Library Papers of Robert F. Kennedy. Freedom & Democracy https://www.jfklibrary.org/learn/about-jfk/the-kennedy-family/robert-f-kennedy/robert-f-kennedy-speeches/day-of-affirmation-address-news-release-version-university-of-capetown-capetown-south-africa-june-6 (accessed 19 August 2021).