Ekow Yankah (Cardozo) has posted Virtue's Domain on SSRN. Here is the abstract:
If at the end of your life you were told you had fulfilled all your moral duties, you would be proud. If you were told you only fulfilled your moral duties, you would be less proud. We all aim to do more than fulfill our duties. We wish to have been more generous than obligatory, more patient, more wise... in short, we wish to be virtuous.
This insight, that there is more to moral well-being than either our moral duties or good consequences, is central to modern virtue ethics. In its important neo-Aristotelian strain, virtue ethics advocates that success in life is also determined by living an ethically rich life, showing sound practical reasoning and exhibiting the human virtues.
Virtue ethics is also importantly influencing jurisprudence. Understanding the role virtue plays in law reveals the way in which our criminal punishment regimes are based on a view of poor underlying character. When these insights are embedded in law, however, things go horribly awry. Because virtue theories premise blame, in part, on a failing of character within the offender, they alter our view of the offender and create a permanent criminal caste. With our compassion blunted, our ugliest prejudices flourish and we fail to notice that our criminal law has become a powerful tool of racial and class suppression. Equally disturbing, even the most sophisticated character theories cannot be reconciled with our commitment to liberalism, particularly with the central place of autonomy within liberalism.
This article argues that only by returning to Kantian and Hegelian Act theories of punishment can we dissolve the view of offenders as permanently tainted and stay true to our liberal commitments.
And from the paper:
A virtue-based theory must take some form of the promotion of human excellence as its primary commitment.150 Of course, an aretaic theory of law may view autonomy as important insofar as it is crucial to the development of human excellence.151 Viewing aretaic theory in this light makes it a great deal more plausible and attractive. After all, any sensible theory of the promotion of human excellence must make space for autonomy; space for choosing and learning to choose valuable ends. Aristotle, for example, importantly believed that part of becoming an excellent person was learning to choose the right acts for the right reasons.152 Similarly, it is a familiar argument in liberal thinking that one cannot be coerced into living the good life because it is a precondition for living the good life that one chooses it. Dworkin, for example, notes that one cannot live a good life if forced to live against one’s own convictions.153 Accordingly, Kymlicka has argued that an authentically good life must be lived “from the inside, in accordance with our beliefs about what gives value to life.”154
But one must be careful in making space for autonomy in a virtue ethic, for a single note may dominate the harmony. If an aretaic theory comes to view autonomy as constitutive of human excellence such that everything required to protect autonomy is co-extensive with promoting human excellence, there will be 148 Id.little distinctively aretaic about it.155 This may well be an acceptable détente, with both theories sharing every conclusion but disagreeing as to why. If this is true, so be it… But it does seem to be suspicious. One fears that this conclusion simply rereads aretaic theories as Kantian autonomy (perhaps without rules). A pale sort of virtue as veneer.
What is needed to disentangle the intrinsic values of virtue and autonomy is a case where they are in conflict. Let us take the case of a particular type of harm-to-self. Imagine a fully-functioning, normal adult, free of excessive burdens on her choices, who has autonomously chosen a life that we will stipulate sets her against the human excellences. Let us say, despite a number of reasonable choices, that she has chosen to become a prostitute – a modern Séverine Serizy. Of course, some may find this example hopelessly parochial or prudish, but grant, for the moment, that a proper relationship to one’s own sexuality and sexual intimacy makes Séverine’s submitting sex for sale harmful to herself. It is also fair to note that, though complicated to some, prostitution is a wrong that coincides with many people’s pre-legal sense of wrong. After all, it is currently illegal in all but a few places in the United States. Let us, to be sure, propose that she also believes that she is making a poor choice.156
I take it a robust aretaic theory of law would find Serizy deeply troubling, leveling punishment unless there were strong countervailing reasons that would weaken her well-being or the well-being of society. It is important to note aretaic theorists may have good reasons to avoid punishing prostitution. Perhaps criminalizing this behavior will prevent people from making important decisions about the role of work and sexuality in their lives necessary to develop into successful persons. Perhaps sound practical reasoning requires the ability to exercise poor reasoning or prostitution is only mistakenly believed to be an act that harms others. More plausibly, the intrusive methods necessary to criminalize and enforce certain laws may be too damaging to human society. Thus, there is no need to assume that an aretaic theory would necessarily outlaw prostitution.
Still, in the absence of the kind of countervailing reasons above, I take it an aretaic theory should be ready to prohibit Serizy’s actions.
I am one of the central targets of this essay, although my own work on virtue jurisprudence does not articulate a theory of criminal punishment. My general views are set articulated most fully in two papers:
Revised versions of these essays and many other pieces on aretaic legal theory can be found in the anthology, Virtue Jurispduence.
Just one quick comment on Yankah's argument. Yankah's conclusion that virtue ethics is inconsistent with a theory that views autonomy as the highest (and perhaps only noninstrumental) value is, in my view, correct. But it does not follow that virtue ethics must relegate autonomy to the role of an instrumental good--there are other possibilities. For example, it could be that some form of autonomy is constituitive of human flourishing. Certainly, an Aristotelian virtue ethics could (and in my view should) adopt this view of the relationship between autonomy and flourishing. If an appropriately conceptualized view of human autonomy is accepted as a constituent part of human flourishing andif the proper end of law is to promote human flourishing, then the law should aim to create the conditions for the development, maintenance, and excerize of autonomy by humans. But as Yankah sees, this aim would be integrated with the promotion of other aspects of human flourishing.
Yankah's hypothetical is an interesting one. From a practical perspective, given the actual conditions of human life, the question whether Séverine's actions should be subject to criminal punishment is likely to be determined by a variety of empirical facts. For example, it may be the case that criminalization of prostitution leads to conditions that systematically undermine human flourishing by isolating sex workers and facilitating their exploitation. Ekow asks us to imagine a possible world in which there were no such consequences--for example, a world in which the only consequence of criminalization would be to reduce the incidence of prostitution and result in punishments that would not themselves seriously impair the flourishing of those who incurred them. Even with these assumptions in place, Yankah needs another assumption--that engaging in sex work is inconsistent with human flourishing (otherwise there would be no reason internal to aretaic theory to criminalize it). Where the hypothetical goes from there must surely depend on the particular reasons for concluding that sex work is contrary to human flourishing. For example, we might suppose that sex work systematically undermines the capacity of humans to engage in meaningful relationships involving intimacy. In a possible world in which all of these assumptions held, then an aretaic theory of criminal law might lead us to the conclusion that Séverine's actions should be prohibited by law. Much more would need to be said, but this case (in my opinion) would count in favor of an aretaic theory of criminal law and against an autonomy based theory--insofar as the our considered intuitions about the case are concerned.