Judicial Virtues and Vices:
Thinking About Character
Lawrence Solum
September 2010
Outline
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Two Antinomies
Virtue Ethics
Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity
Dissolving the Antinomies
Implications for Judging
Outline
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Two Antinomies
Virtue Ethics
Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity
Dissolving the Antinomies
The Implications for Judging
Two Antinomies

The Antinomy of Rights and Consequences
–
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The Antinomy of Realism and Formalism
–
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Deontological approaches—Dworkin
Consequentialist approaches—Kaplow/Shavell
Legal Realism—Llewellyn, Kennedy
Legal Formalism—Blackstone, Scalia
The state of legal theory
The legal analyst
should only consider
welfare!
Rights
versus
Consequences
Louis
Kaplow
By “welfare,” Louis
means a BergsonSamuelson Social
Welfare Function,
such as
H
W 
u
h 1
h
Steven
Shavell
Rights versus
Hercules will only
consider arguments of
Consequences
principle!
Rights versus Consequences
Two mutually exclusive and inconsistent views of
normative legal theory.
Two Antinomies

The Antinomy of Rights and Consequences
–
–

The Antinomy of Realism and Formalism
–
–
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Deontological approaches—Dworkin
Consequentialist approaches—Kaplow/Shavell
Legal Realism—Llewellyn, Kennedy
Legal Formalism—Blackstone, Scalia
The state of legal theory
Realism versus Formalism
The isappellate
The rule of law
court is where
a law of rules!
policy is made.!
Sonia
Karl Llewellyn
Sotomayor
William
Antonin
Blackstone,
Scalia
Realism versus Formalism


On the one hand, we are all realists—we all
seem to believe in an instrumentalist
conception of law. Policy talk is ubiquitous.
On the other hand, formalist intuitions are
stubborn. Some interpretations are out of
bounds. We may want the law be sufficiently
indeterminate to conform to our ideals, but
once it does conform, we want it to be “hard
law.”
The State of Legal Theory
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Contemporary legal theory is characterized by two
opposing tendencies with respect to the two
antinomies.
Tendency One: Perpetual warfare, examples:
–
–

The debate over Kaplow & Shavell’s “Fairness versus
Welfare.”
The debate over CLS & the indeterminacy thesis in the
1980s.
Tendency Two: Mutual disengagement, after these
debates, everyone goes on as if they had not
occurred.
Outline
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Two Antinomies
Virtue Ethics
Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity
Dissolving the Antinomies
The Implications for Judging
Outline
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Two Antinomies
Aristotle’s Ethics
Contemporary Virtue Ethics
Virtue Ethics
Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity
Dissolving the Antinomies
The Implications for Judging
Aristotle’s Ethics
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Virtue ethics dominated
moral philosophy until
the modern period.
Focus on Aristotle,
historical importance &
influence on
contemporary virtue
ethics.
Other approaches to
virtue, e.g. Stoics,
Hume
Aristotle’s Ethics
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Eudaimonia
The Function Argument
The Virtues
–
Intellectual Virtues


–
Sophia (theoretical wisdom)
Phronesis
Moral Virtues

Courage, good temper, justice
Highest humanly
achievable good
is a life of
rational activity
in accord with
the human
excellences.
Disposition to the mean
with respect to a
morally neutral
emotion,
i.e.Wisdom:
fear.
Practical
The ability to size
Excess
= cowardice.
Translated
as
up the situation,
Deficiency
=
rashness.
happiness,
but notThe
moral vision.
Mean=courage.
a feeling of well-
phronimos sees
being.
what is morally
salient & what
“Faring well and
responses
doing
well.” are
workable.
Contemporary Virtue Ethics

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
Essay, “Modern Moral
Philosophy”
Critique of deontology &
consequentialism.
Suggestion that we turn
to Aristotle.
Leads to Philippa Foot’s
“Virtues & Vices.”
Elizabeth Anscombe
Contemporary Virtue Ethics
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No decision procedure for ethics, contra
utilitarianism or Kantian ethics.
Replace Aristotelian science with
contemporary science.
Excise Aristotle’s errors about women &
slaves.
The complexity of
human
life outruns
Take into account contemporary
metaethics.
any rule or
procedure for
deciding how to act.
Contemporary Virtue Ethics
Nancy Sherman Rosalind Hursthouse Christine Swanton
Julia Annas
Outline
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Two Antinomies
Virtue Ethics
Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity
Dissolving the Antinomies
The Implications for Judging
Outline
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Two Antinomies
Virtue Ethics
Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity
Dissolving the Antinomies
The Implications for Judging
Virtue Jurisprudence
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An Aretaic Theory of Legislation
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An Naturalistic Theory of Law and Justice
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Eudaimonia & virtue as the end of law.
The aretaic spin on the natural law/positivism
debate.
An Aretaic Theory of Judging
–
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An account of judicial virtue and vice.
Outline
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Two Antinomies
Virtue Ethics
Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity
Dissolving the Antinomies
The Implications for Judging
Outline
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Two Antinomies
Virtue Ethics
Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity
Dissolving the Antinomies
The Implications for Judging
Aretaic Theory of Judging
 Uncontested
These virtues will beJudicial
Virtues
controversial. Different
– Judicial courage
normative theories of
justice
will offer different
– Incorruptibility
conceptions of justice and
– practical
Judicial
temperament
wisdom.
–

Judicial intelligence
Every plausible
normative theory of
judging can
endorse these
virtues.
Contested Judicial Virtues
–
–
Judicial wisdom
Justice
No one thinks
Wejudges
need ashould
theory of
be cowardly,the
corrupt,
virtuesstupid,
of “judicial
and have
anger
wisdom”
and “justice”.
management problems.
The Excellent Judge is Nomimos &
Phronimos—Just and Practically Wise

Nomimos
–
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An excellent judge is Nomimos.
The Greek “nomos” is more encompassing than
our word “law”—includes social norms.
Phronimos
–
–
An excellent judge possesses practical wisdom.
“Legal vision”—ability to size up the situation,
perceive what is salient.
The Excellent Judge is Nomimos &
Phronimos—Just and Practically Wise

Nomimos—Justice
–
–
An excellent judge is Nomimos.
The Greek “nomos” is more encompassing than
our word “law”—includes social norms.
The
Phronimos—Judicial
fairness
lawfulness
Wisdom
conception
permits
– An excellent
judge possesses practical wisdom.
Two conceptions of the
requires
agreement
reliance
through
– “Legal vision”—ability to size
up of
thejustice:
situation,
virtue
on private,
reliance
on firstpublic,
perceive
what is salient. Justice as fairness &
order normative
second-order
Justice as lawfulness.
judgments.(nomoi).
judgments
The Excellent Judge is Nomimos &
Phronimos—Just and Practically Wise

Nomimos—Justice
–
–

An excellent judge is Nomimos.
The Greek “nomos” is more encompassing than
our word “law”—includes social norms.
Phronimos—Judicial Wisdom
–
–
An excellent judge possesses practical wisdom.
“Legal vision”—ability to size up the situation,
perceive what is salient.
The Excellent Judge is Nomimos &
Phronimos—Just and Practically Wise
Solomon
(not
Hercules) is
the model
of the
virtuous
adjudicator.
Nicolas Poussin. The Judgment of Solomon (1649)
Statement of the Theory
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A judicial virtue:
–
–
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A virtuous judge:
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A judge who possesses the judicial virtues.
A virtuous decision:
–

Naturally possible disposition of mind or will that when
present with the other judicial virtues reliably disposes its
possessor to make virtuous decisions.
Content identified by a theory of the judicial virtues.
A decision that would characteristically be made by a
virtuous judge acting from the judicial virtues in the
circumstances that are relevant to the decision.
A lawful decision:
–
Identical to a virtuous decision.
Statement of the Theory

A judicial virtue:
–
–

A virtuous judge:
–

A judge who possesses the judicial virtues.
A virtuous decision:
–

Naturally possible disposition of mind or will that when
present with the other judicial virtues reliably disposes its
possessor to make virtuous decisions.
Content identified by a theory of the judicial virtues.
A decision that would characteristically be made by a
virtuous judge acting from the judicial virtues in the
circumstances that are relevant to the decision.
A lawful decision:
–
Identical to a virtuous decision.
Outline
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Two Antinomies
Virtue Ethics
Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity
Dissolving the Antinomies
The Implications for Judging
Outline
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
Two Antinomies
Virtue Ethics
Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity
Dissolving the Antinomies
The Implications for Judging
Rules & Equity
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Rule application
–
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Phronesis is required for correct application of the
rules. Rules do no apply themselves.
Virtue jurisprudence accounts for the fact of lawful
judicial disagreement.
Equity
Dworkin argues that there is a
uniquely correct solution to each
– Life outruns codification.
and every legal problem, but in a
– Phronimos can do “equity” in the Aristotelian
wide range of cases, competent
sense.
lawyers believe that there is more
than one “legally correct” resolution.
Outline
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Two Antinomies
Virtue Ethics
Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity
Dissolving the Antinomies
The Implications for Judging
Outline
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Two Antinomies
Virtue Ethics
Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity
Dissolving the Antinomies
The Implications for Judging
Dissolving the Antinomies
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The Aretaic response to the antinomy of rights and
consequences.
–
–

Similar to pragmatist absorption, but
With a theoretical foundation.
The Aretaic response to the antinomy of realism and
formalism.
–
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–
They both tell part of the story.
Practical wisdom and justice in a complex relationship.
Not mechanical rule application; informed by legal vision.
Equity not the imposition of personal preferences.
Outline
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Two Antinomies
Virtue Ethics
Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity
Dissolving the Antinomies
The Implications for Judging
Outline
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Two Antinomies
Virtue Ethics
Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity
Dissolving the Antinomies
The Implications for Judging
Implications for Judging
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The importance of judicial selection
The virtue of justice – the values of judges
matter, because lawfulness is a value.
The virtue of practical wisdom – the most
important stage in the process occurs is not
decision but “sizing up the case” –
perception.
Character!
Virtue Ethics
An Aretaic
Theory of
Judging
Virtue
Jurisprudence
Nomimos &
Phronimos
Modern Moral
Philosophy
Solomon, not Hercules
Outline
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Two Antinomies
Virtue Ethics
Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity
Dissolving the Antinomies
The Implications for Judging
Outline
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Two Antinomies
Virtue Ethics
Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity
Dissolving the Antinomies
The Implications for Judging
Questions
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Action Guiding?
Wicked Societies
Equality
Rival Theories of Equality
Internalization Test
Slaves & Women
Nomoi Indeterminate
Nomoi Disputed
Pluralism
Relativism
Fact-Value Distinction
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Legal Realism
Situationalism
Moral Realism
Sources of the Nomoi
Positivism/Natural Law
Communitarianism
Liberty
Pragmatism
Cash Value
Social Construction
More
More Questions

Aristotle on Justice
Post-Marxist Gramscian
Normative Economics
Positive Economics
Decision Procedures
Ideal vs Nonideal Theory
Success Conditions
“I Don’t Buy It”

“It takes a theory to beat a theory”

Political Valence
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Happiness & Morality
Positive or normative
Fairness Conception
Lawfulness Conception
Baselines
Judicial Disagreement
Spock, McCoy, and Kirk
Hercules & Solomon
Is virtue jurisprudence capable of
guiding action?

“Do as a virtuous judge would do?”—how
does that provide guidance for action?
–

Analogous to problem with virtue ethics
Several solutions:
–
–
Hursthouse: The phronimos provides the
standard for action. (Common sense version.)
Swanton: The virtues provide the standard for
action. “V rules.” (Act courageously.)


For judges, the relevant virtue, justice, refers us to the nomoi,
that is, to the social norms and laws of our community.
But don’t expect a decision procedure.
The Nomoi in Wicked Societies
3 Cases

Well functioning society & ideal theory
–
–

Radically dysfunctional society
–
–

Problem does not arise in a well-functioning society.
Problem bracketed by ideal theory.
Phronimos will do the best she can under the
circumstances.
Identifying the true nomoi.
Mixed case. Reasonably well-functioning society
with isolated wickedness.
–
–
Identify the wicked norms, act wisely.
Limit the damage to the rule of law.
Rival Theories of Equality
Equality
Internalization test
Relationship to slaves & women
Equality

Equality and aretaic theories of legislation
–

Aretaic conception of equality
–
–
–


End of law is flourishing of humans & their
communities.
Martha Nussbaum & Amartya Sen.
Equality of capacities for valuable functioning.
Tradeoffs depend on complex and familiar factors,
including level of economic development,
Internalization test: true nomoi must be
capable of internalization by the phronomoi
Comparison with rival theories (next slide)
Internalization test
Relationship to slaves & women
Nussbaum
Sen
Comparison with Rival Theories of
Equality

Aretaic equality versus utilitarian equality
–
–

Each counts for one but only one & declining marginal utility
of resources (wealth & income).
Preferences (or other conceptions of utility) are too thin.
Preferences can be shaped by culture.
Aretaic equality versus deontological equality—the
“equality of what question”
–
Rawls’s two principles, equality of wealth & income, equality
of welfare, equality of opportunity for welfare, equality of
resources, equality of opportunity for resources.
Internalization test
Relationship to slaves & women
Aristotle’s Views on Slaves & Women
Very Bad! But:
Distinctive virtues can be
– These views are inconsistent with modern science & the
developed
deep
premises ofthrough
his theory.
emancipatory
praxis.
– Nothing
in contemporary
virtue ethics depends on these
views. B. Solum, Virtues and
Lawrence
 And:
Voices, Chicago-Kent Law
– His Review
view of slavery
had the consequence that almost all
111 (1991).

–

slavery was unjustified in Athens
His view of justice in the family was progressive for 4th
Century B.C. Greece.
Also, distinctive virtues of the oppressed.
Internalization test
Relationship to equality
Internalization Test for True Nomoi
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

This test is internal to my theory & not Aristotle.
To qualify as a nomoi, a social norm must be internalizable by
fully virtuous humans, i.e., the phronomoi.
To be internalizable, a nomos must be consistent with
flourishing, i.e., the development and exercise of the virtues.
Norms of exclusion and repression are inconsistent with
flourishing.
Exemplary case: Phronimos is a member of the excluded
group.
Example: Could Frederick Douglass internalize the norms that
supported slavery?
Rival Theories of Equality
Equality
Internalization test
Relationship to slaves & women
Indeterminacy of the Nomoi

Distinction:
–
–
–

The nomoi do
underdetermine results:
social norms vary in
vagueness.
Two roles for positive law:
–
–

Indeterminacy
Determinacy
Underdeterminacy
Specification
Resolution of conflict
Radical indeterminacy would be a problem for any
normative theory of law.
Nomoi are disputed

Yes and no.
–
–


Most social norms are uncontested most of the
time.
But there can be large and persistent disputes,
especially given the fact of pluralism.
One role of positive law is to settle normative
disputes.
This requires sufficient agreement on social
norms recognizing legitimate authority.
Pluralism

Objection:
–
–
–

Fact of pluralism.
“Virtue ethics” could be characterized as a “comprehensive
conception of the good.”
Rawls/Solum: Legal reason should be public reason.
Three strategies:
–
–
–
Virtue ethics & virtue jurisprudence are consistent with
pluralism—Julia Annas.
Virtue ethics & virtue jurisprudence can be formulated so as to
rely only on thin conceptions of virtue, happiness, etc.
Pluralism cannot be taken as a given for the purposes of ideal
theory.
Relativism

Different ways in which relativism could be relevant:
–
–
–
–



Descriptive relativism—no argument yet.
Metaethical relativism: no truth about morality.
Normative ethical relativism: good is relative to community
norms.
Epistemic value of knowing about relativism.
Ubiquity of virtue talk across normative communities.
The lawfulness conception of the virtue of justice
absorbs some but not all of relativism.
Epistemic modesty is appropriate but not decisive.
Noncognitivist
metaethics!
Fact-Value Distinction

Three distinct points:
–
–
–

David Hume’s argument about fact premises
& value conclusions.
G.E. Moore’s open-question argument.
Facts are empirically verifiable, values are
matters of preference or emotion. Moral
propositions are not “truth apt.”
Answers:
–
–
–
Hume’s argument is irrelevant.
Moore’s argument is contested in metaethics.
Noncognitivism
Moral Realism
1. Crude
noncognitivist
theories are
nonviable.
2. Sophisticated
noncognitivist
theories make
room for
normative
ethics.
3. Cognitivist
alternative—
moral
propositions are
truth apt.
Legal Realism


Does virtue jurisprudence add anything to
realism? (Qualification: Many realisms.)
Reconcptualizations:
–
–
–

Llewellyn’s idea of situation sense is
reconceptualized as the virtue of practical wisdom.
Purposive interpretation of statutes is
reconceptualized in terms of the relationship between
the nomoi and the positive laws.
Rigorous foundations.
Differences:
–
–
–
These realist insights
Flourishing versus interests.
can be embedded in a
Internalization versus instrumentalism.
rigorous normative
Level of normative theory versus description of legal
theory.
practice.
Karl Llewellyn
Situationalism
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
What is situationalism?
John Doris & Gilbert Harman.
Heated debate currently underway.
situationalist claims are untenable.
•Extreme
Social psychology.
to trust “folk
and the
•Reasons
Radical situationalism:
all knowledge”
humans will perform
same
actions
in the
same situations.
distrust
social
science.
• Experiments, including Milgram
Experiments were not designed to test
sophisticated character theories—wrong
kinds of dispositions or character traits.
Virtue ethics explains many of the results.
Bottom line: commitment to the results of
empirical inquiry.
Moral Realism

The Basic Realist Claim:
–

Morality is not invented, projected, or
constructed.
Moral Natualism as an interpretation of
moral realism.
–
–
–
Michael Thompson & Philippa Foot on
“Natural Goodness”
Natural science: biology & ethology.
What are the characteristics of wellfunctioning humans & human societies?
Relationship to fact/value
Sources of the Nomoi

Possibilities:
–
Natural development of human communities.

–
Universal moral grammar.


Game theoretic explanations.
Hard-wired, on the analogy of the capacity for language.
Criterion: the explanation should be
naturalistic.
–
This criterion rules out “constructivism” or
“invention.”
Positivism & Natural Law


General strategy: end run around the “what is law”
debate.
Three kinds of disagreement:
–
–
–

Conceptual—necessary content of the concept of law or
“essence”.
Descriptive—whether the law in a particular jurisdiction is
best described by natural law theory or positivism.
Normative—whether “law” as a practice should incorporate
criteria of normative validity in the criteria for legal validity.
Nomos versus law: (1) conflicts between positive law
& the nomoi & (2) nomoi that are defective because
they fail to serve the function of law.
Raz’s Authority Argument
Raz’s Authority Argument

The argument:
–
–
–

Because law claims authority, the validity conditions for law
must be content independent.
But virtue jurisprudence does not adopt content
independent validity conditions for positive law.
Therefore, virtue jurisprudence is false.
The answer:
–
Raz’s premise about authority is false. It is the nomoi rather
than law that are action guiding & it is internalization rather
than authority that does the work.
Communitarianism

Points of comparison:
–
–
–
–

Aristotle on the Polis as a “strong community.”
Particular communities as “source of the nomoi.”
Flourishing of individuals and their communities.
Humans are social creatures.
Points of difference:
–
–
Universal human nature.
No a priori commitment to particular empirical
claims about role of communities in flourishing.
Liberty



Is virtue jurisprudential essentially opposed to even
modest libertarianism?
End of law is fostering the acquisition, maintenance,
and exercise of the virtues.
But:
–
–

Role of liberty and autonomy in human development—Mill’s
thesis.
Role of liberty in the exercise of the diverse forms of life
consistent with the expression of the virtues.
And:
–
The acquisition of the human excellences is a prerequisite
for the full value of liberty.
Pragmatism

Two forms of pragmatism:
Ad hoc pragmatism
– Philosophical pragmatism:
Dewey, James,
without foundations
isand
Pierce.
unsatisfying.
–

Legal pragmatism: Richard Posner, the “Prairie
Pragmatists,” e.g., Dan Farber.
The aretaic reconceptualization of legal
pragmatism:
–
–
–
Purge pragmatism of ad hoc particularized
judgment.
Provide theoretical foundations.
Retain practical judgment and practical wisdom
balance by the rule of law. Phronimos and
nomimos.
Cash
“[I]f youValue
follow the pragmatic
method, you . . . must bring
of each
wordonitsCash
practical
out
William
James
Value.
cash-value,
set it at
workof
 Defense
of intrinsic
value
within the stream
knowledge
& its roleofinyour
the legal
academy.
experience.”

Quinean holism about the web of
belief:
–
–

Connection of the core to the edge.
Normative theory is relatively near to the core.
Particular applications: reasonable
person standard—Feldman.
Feldman
Quine
Social Construction

Two Questions:
–
–

Is human nature “socially constructed”?
Are the nomoi socially constructed?
Three perspectives:
Empirical question!
humans
likeconceptions
other
– Aretaic theory No,
(neutral
between
of
--Universal moral grammer
creatures have natural
virtue)
--Natural solutions to
characteristics.
We are
– NeoAristotelian
Virtue Ethics (Hursthouse)
problems of interaction
social,
rational,
– Natural Goodness
(Foot/Thompson)
--Contingency, pathcommunicating beings.
dependence
Aristotle on Justice



Aristotle presents both the “fairness conception” and
the “lawfulness conception”. NE, Book V.
Opinion about the nature of justice reveal ambiguity.
Possible implications of ambiguity:
–
–
–

Two virtues.
Resolve the conflict in opinion.
But not an essentially ambiguous virtue.
From the point of view of virtue jurisprudence, the
task is not exegesis of Aristotle.
The Standard Post-Marxist
Gramscian Question
In the
capitalist
Isn’t
justice-asmode of
lawfulness
production,
simply
the
bourgeoisie
rationalization
values provide
of hegemony!
the content of
the nomoi.
More
Gramsci & Virtue Jurisprudence

The theory of natural goodness rightly rejects
Gramsci’s assertions that:
–
–


There is no human nature.
All concepts are historical, contextual, and arise from social
relations.
Virtue politics could embrace Gramsci’s theory of
“norm reformation” that recognizes that existing
norms are sticky and must be transformed from
within.
Gramsci embraced Antonio Labriola’s notion that
Marxism is a “critical theory” every element of which
is subject to revision.
Comparison with Normative Law &
Economics


Normative law & economics is a family of
theories—welfarism, Kaldor-Hicks, pareto
efficiency, etc.
Exclusive versus inclusive versions.
–
–

Only welfare counts—exclusive.
Welfare counts too—inclusive.
Virtue jurisprudence absorbs inclusive
normative law & economics but rejects
exclusive variants.
Comparison with Positive Law &
Economics


Virtue jurisprudence incorporates a moral
psychology.
Ends can be rationally chosen & preferences can be
revised.
–

Gerald Dworkin’s view of autonomy, second order
preferences and beliefs.
Akrasia or weakness of will. This may or may not
conflict with the “revealed preference” assumption.
Is akratic action contrary to preference?
A Decision Procedure for Ethics



Qualification: Many deontologists have taken
this criticism on board, e.g. Barbara Herman.
Why not a decision procedure?
Complexity thesis:
–
–

Life outruns rules. General and abstract versus
particular and concrete.
Example: Attempts to formalize “threshold
deontology” are unsatisfactory.
Role of practical wisdom (phronesis).
Ideal versus Nonideal Theory

Virtue jurisprudence as ideal theory:
–

Assume good faith efforts at compliance by
citizens and officials (judges, executives,
legislators).
Virtue jurisprudence as nonideal theory:
–
–
–
Begin with current conditions.
Strategic action (ideological judging & judicial
selection).
Is transition possible?
What are the success conditions?


What considerations bear on the decision to accept
a large-scale normative theory of law?
Two strategies:
–
–

The Method of Geometry—deduce from self-evident
principles.
The Method of Reflective Equilibrium—coherence with our
considered judgments about: metaethics, moral and political
philosophy, normative theories of doctrinal fields.
What counts as success? Sweep the field? On the
table?
“I don’t buy it.”


What does “I don’t buy it” mean?
Two standards:
–
–


The standard of rhetoric: theory acceptance depends on
persuasion.
The standard of philosophy: theory evaluation depends on
the arguments.
It is possible to be in the “psychological state”
indicated by “I don’t buy it,” even without answers to
the arguments.
But this is not an appropriate standard for academic
discourse.
“It takes a theory to beat a theory.”

Assumptions:
–
–


There are sufficient arguments to put the theory on the
table.
The topic at hand is theory apt.
Then: Theory comparison is required.
What are the rivals of virtue jurisprudence:
–
–
Normative theories: consequentialism, deontology.
Antifoundationalist theories: legal pragmatism, legal
particularism.
Political valence



Is virtue jurisprudence liberal/progressive or
illiberal/conservative?
First answer: wrong level of generality. This
is like asking whether consequentialism or
deontology favors the Tories or New Labor.
Second answer: virtue politics suggests the
possibility of the reconfiguration of political
space.
Happiness & Morality




Aristotle’s theory makes eudaimonia the
highest humanly achievable good.
Other regarding virtues (justice, beneficence,
liberality) are argued to be constitutive of
happiness & not opposed to it.
Fundamental difference between modern
and ancient moral theory.
Julia Annas, The Morality of Happiness.
Is this a positive or normative
theory?

Virtue jurisprudence is a normative theory of
law.
–
–

Aretaic theory of legislation: what is the aim of
law?
Aretaic theory of judging: what makes for
excellent judging?
Positive components:
–
–
Moral psychology
Account of the nature of law—embedded in a
theory of the virtue of justice
Who are the phronomoi?



The problem of identifying the practically
wise. If practical wisdom is rare, how do we
know who has it.
Compounded by ideological & political
disputes.
Who would you ask for advice? Who would
you trust in a real emergency? Who would
you want as your Dean?
Against the Fairness Conception

Justice is the disposition to act fairly, where
the content is given by an antecedent theory
of fairness.
–


Bernard Williams’s essay, “Justice as a Virtue.”
The theory of fairness does all the work &
threatens to swallow the rest of virtue ethics.
The virtue does not do the necessary social
work—first order, private judgments.
For the lawfulness conception
For the Lawfulness Conception


Normatively attractive: allows the virtue of
justice to serve the function coordinating
social behavior & enabling the rule of law.
Has the features of a “virtue”:
–
–

Stable disposition.
Natural quality of well functioning humans.
Qualification: not just any social norm counts
as a nomos—must be internalizable by the
phronomoi.
Against the fairness conception
Nomoi & Baselines


Does the fairness conception of the virtue of
justice assume “natural baselines”?
Yes & No
–
–
Yes, in any given community, the nomoi provide
baselines. That is the point of the lawfulness
conception.
No, the baselines can vary both synchronically
(across cultures) and diachronically (within
cultures across time).
Fact of Judicial Disagreement

Claim:
–

Reason:
–

Different phronomoi (fully virtuous judges) could decide the
same issue or case differently.
Pace Dworkin’s Right Answer Thesis:
–

There is at least one legal issue (or concrete case) such
that more than one resolution is legally correct.
In each and every case, there is one and only one legally
correct resolution.
Preserves Dworkin’s argument against Hart:
–
The phenomenology of judging is that law does not run out.
Spock, McCoy, and Kirk
Hot-Tempered
The Virtue of
Proates
The Stoic Sage
Is Hercules really Solomon?




If Hercules were to take “law as integrity”
seriously, then he would need to internalize
the nomoi.
But Dworkin’s Hercules seems to set a very
low threshold of “fit”.
Hercules moves easily to the method of
moral philosophy.
Dworkin’s Hercules embraces the “fairness
conception” of the virtue of justice.