Legal Theory Blog

Horwitz on Judicial Character

Paul Horwitz (University of Alabama School of Law) has posted Judicial Character (and Does it Matter) (Constitutional Commentary (forthcoming)) on SSRN. Here is the abstract:

This Essay, forthcoming in Constitutional Commentary, discusses three recent books about judicial decision making: Richard A. Posner's How Judges Think, H. Jefferson Powell's Constitutional Conscience: The Moral Dimension of Judicial Decision, and Daniel A. Farber and Suzanna Sherry's Judgment Calls: Principle and Politics in Constitutional Law. It uses them as the foundation for an exploration of the nature and role of judicial character, or judicial virtue, in constitutional judging.

All three books have in common the rejection of any single comprehensive theory of or approach to constitutional judging. What divides them is the extent to which they focus descriptively on the "is" of judging or normatively on the "ought" of judging: here, Posner and Powell represent the respective poles, with Farber and Sherry located somewhat awkwardly in the middle. I argue that in order for us to find some livable space between the "is" and the "ought," we must take the aretaic turn: we must focus on the nature of judicial character or virtue and what it demands of the judge. Drawing on work on virtue ethics and virtue jurisprudence, I explore the role of judicial virtue and its relationship to constitutional decision making. I argue that the aretaic turn may help us to develop an understanding of judging that is both consistent with the judicial "is" and productive of new ways of thinking about the judicial "ought." In particular, I argue that reflection on the meaning and implications of the judicial oath may provide a fertile space in which to recapture and reconceive a normative sense of the judicial virtues without neglecting the real-world motivations and limitations that act on judges. This Essay is a prelude to larger work on the relationship between oaths and the Constitution.

Highly recommended.

Legal Theory Lexicon: Welfare, Well-Being, and Happiness

Introduction

Normative legal theory is concerned with the ends and justifications for the law as a whole and for particular legal rules.  Previous entries in the legal have examined exemplars of the three great traditions in normative theory--consequentialist, deontological, and aretaic (or virtue-centered) perspectives.  There are important differences between these three families of theories at a very general and abstract level: for example, deontologists emphasize rights and wrongs while consequentialists emphasize the goodness or badness of states of affairs.  And there are differences between particular theories within the broad families: within consequentialism, for example, welfarists emphasize preference satisfaction, whereas hedonistic utiliarians emphasize pleasure and pain.

Despite these disagreements, I think it is fair to say that many or most of the reasonable views about normative theory agree that what is good or bad for individual humans is morally salient.  Welfarists believe that humans are better off if their preferences are satisified.  Hedonistic utilitarians believe an individual is better off if she experiences more pleasure and less pain.  Aristotle believed that humans flourish if they live lifes of social and rational activity that expresses the human excellences or virtues under conditions of peace and prosperity.  A deontologist who believes that autonomy is the central value might believe that humans are better off if they are autonomous and worse off if they are not  In other words, a wide variety of moral theories agree that what is good for humans is morally salient.

This entry in the Legal Theory Lexicon will examine three related concepts that are related to the good for humans, welfare, well-being, and happiness--and along the way we will explore some related ideas like pleasure, satisfaction, pain, flourishing, and eudaimonia.  Of course, the nature of the human good is a deep topic--one that that has been debated by philosophers, psychologists, economists, theologians, and others for millennia.  All of the great moral and political philosopher, from Plato and Aristotle, through Hobbes, Hume, Kant, Bentham, and Mill, to contemporary figures like Thomas Scanlon and Derek Parfit have engaged in debates about the nature of the human good.  This entry in the Legal Theory Lexicon will only scratch the surface of these debates.  As always, the Lexicon is aimed at law students, especially first-year law students with an interest in legal theory.

Three Concepts

Let's begin by saying a few words about each of the three concepts.  Our aim in this section is not to provide a canonical definition, but instead is to give a sense for the way these terms are used in normative legal theory:

Welfare--The term "welfare" is heavily theory laden.  For contemporary law-and-economics scholars, welfare sometimes operates as a technical term.  One's welfare is a function of one's utility, and most contemporary economists understand utility as a function of one's preferences over states of affairs.  If I prefer a world in which I eat an ice cream cone after lunch to one in which I am abstemious, then the ice cream cone increases my welfare.  But the term "welfare" is also used in a much broader sense, in which my "welfare" is a function of what is good (and bad) for me.  In this sense, my "welfare" might be synonymous with my "well-being" or "flourishing or "happiness."  We might say that there are competing conceptions of the general concept of welfare.

Well-Being--The term "well-being" is similar to "welfare" in the broad and nontechnical sense.  In ordinary language, we frequently associate "well-being" with health--primarily physical health but mental health as well.  Philosophers use this term to refer to what is noninstrumentally good for someone.

Happiness--In ordinary language, the term "happiness" is frequently used to refer to a mental state.  One might think of happiness as a feeling of pleasure, contentment, satisfaction, or enjoyment.  But the word "happiness" is also used as a translation for the Greek word "flourishing," and even in ordinary talk the use of phrases like "true happiness" suggests that not one can have pleasant feelings from moment to moment, but lack "happiness."  Some theorists would reserve the term "happiness" for a stable or enduring quality that is produced by the appropriate features of one's life.  Thus, it might be the case that "a job well done" can make you "happy," but a delicious desert can only give you "pleasure" or "enjoyment."

As is apparent from this very brief introduction of these three concepts, they are connected with others like "pleasure," "pain," "preference," "utility," "flourishing," "enjoyment," and so forth.  But rather than defining each of these concepts, we will now move to a more abstract level and discuss three general views about the nature of human well-being (or welfare in the broad sense).  These three views are offered only as illustrations.  I am not going to attempt to provide a comprehensive catalog.

Three Theories of the Human Good

One way for us to get a better handle on the concepts of welfare, well-being, and happiness is to examine three particular theories of the good for humans:

Hedonism: Philosophical hedonism (which may or may not be related to the view that the good human life is produced by lots of sex, drugs, and rock 'n roll) is the view that the good for humans is pleasure (or more generally positive or enjoyable mental states) and bad for humans is pain (or negative mental states).  Hedonists might believe that pleasure is a distinctive brain state that varies continuously, with the intense pleasure induced by opiates or cocaine at one end of the spectrum, and that pain is similar, with the intense pain of passing a kidney stone at the other end.  But some hedonists believe that pains are differ qualitatively.  John Stuart Mill, for example, thought that there were higher pleasures (e.g., from listening to great music or reading a great novel) and lower pleasures (e.g., from strong drink, drugs, or playing video games).  There are deep questions about the nature of pleasure and pain, but for our purposes let us simplify greatly and assume that all hedonic values (positive or negative) consist of mental states (or brain states, which may or may not be equivalent) that are experienced as positive or negative.

Welfarism: In the legal academy, "welfarism" is strongly associated with normative law and economics.  (But in other disciplines, the terms "welfare" and "welfarism" have other meanings.)  Of course, economists differ among themselves on the nature of welfare, but let us stipulate (for the sake of simplicity) that "welfare" in the economic sense is a function of "utility" and that utility for an individual is a function of the individual's ordinal preferences among states of affairs.  If my preferences are satisfied, then my utility and welfare goes up.  If the world moves in a direction that I would rank lower (and hence disprefer), then my level of welfare goes down.  We might call this theory of "welfare" a "preference satisfaction" theory.

Eudaimonism: The third view that I will outline is based on Aristotle's claim that the highest humanly achievable good is "eudaimonia," which I will translate as "flourishing".  Aristotle believed that humans flourished if they both fared well (lived under the right circumstances) and did well (engaged in valuable activities): hence, Aristotle's claim was that eudaimonia consisted in faring well and doing well.  Let's put faring well aside, and focus on doing well.  Aristotle believed that the nature of "doing well" depends on human nature.  Humans are rational and social creatures.  So a flourishing human life consists of rational and social activities done well.  "Done well" for Aristotle means "expressing the human excellences or virtues."  In sum, a flourishing human life is a life of rational and social activity that expresses the human excellences, and hence a life under conditions of peace and prosperity sufficient to support or enable such activity.

Let's try to make this more concrete by offering examples of three different lives:

The Life of Pleasure: The first life is lived by Ben, who takes great pleasure in sex, drugs, and rock 'n roll.  Ben does what it takes to get enough money to party hard.  He is careful not to overdo or to party so hard that he screws up his life.  Ben's wits are somewhat dulled, and his social interactions might be a bit superficial, but he has a ton of fun almost every day.  It turns out that lots of the time, things don't go the way that Ben prefers--his favorite bands always break up, he doesn't get job he wants, his girlfriends cheat on him.  But Bob doesn't let disappointment interfere with pleasure--if things don't go well, he grabs a brewski, takes a couple of tokes, and chills.

The Life of Satisfaction:  Alice has many preferences about how things should go.  She wants her children to get a good education and live up to their potential.  She wants her city to care for the homeless.  She wants endangered species to be saved.  She works for those things, and as a result of her efforts, her kids do well.  For reasons that were largely out of her control, her city does care for the homeless and many endangered species are saved.  Things go as she wants them to go, but because Alice worries a lot, her satisfaction is only rarely translated into pleasure.  Some of Alice's friends observe that she had the potential to do more with her life, as things turned out, she has what she wants.

The Life of Accomplishment:  Phillipa grows up in an loving and nurturing family and gets an excellent education.  As a result, she becomes an adult who is smart, wise, courageous, temperate, good tempered, caring, responsible: she is a truly excellent human beings, or to put it differently, she is virtuous.  She is reasonable fortunate in her life circumstances as well, so she has a good and stable relationship with her partner, many friends, and meaningful work as an architect.  She lives a balanced life, with periods of intense and difficult work, but also times for fun.  Many of her preferences are satisfied, but many are not.

I hope the description of the three lives is not so oversimplified that it becomes unrealistic.  The point is that the three theories we have described will evaluate the three lives differently.  At least some varieties of hedonism will count Ben's life as the best life--it is a life of pleasure.  There may be pleasure in Alice and Philippa's lives as well, but not as much as in Ben's.  A welfarist who counts all preferences equally might view Alice's life as the life that goes the best: her preferences are satisfied.  Although she doesn't get as much pleasure as Ben, she doesn't prefer a life of pleasure; likewise, she doesn't want to live up to her potential for excellence: she is satisfied with a more passive life.  Philippa gets much of what she wants and experiences her share of pleasures, but as things turn out, her life is worse than Ben and Alice's lives are if the scale is either pleasure or preference satisfaction.  A eudaimonist or virtue theorist will nonetheless say that Philippa's life is the best life.

The Conceptual Space of Debates about the Nature of the Good for Humans

Things are about to get abstract, so watch out.  The next step we will take involves mapping the ways in which the three theories of human good differ.  This is not the only way we could map the conceptual space, but it illuminates some of the important issues.  This map is going to rely on a distinction between the subjective (which is associated with our minds or inner lives) and the objective (which is associated with the world, including our bodies and our environment).  That distinction will then be applied in two dimensions: one concerned with the source of the standards for value and the other concerned with the things that can satisfy those standards.  I warned you--this is abstract, but bear with me.

Objective and Subjective Views of the Sources of the Standards for Human Good: What is the source of our criteria for well-being, happiness, welfare, or the human good?  One possibility is the standards are subjective--they are relative to what we think or feel.  Another possibility is that the standards are objective--they depends on the nature of the world and not our feelings or beliefs about it.

Objective and Subjective Views of the Conditions to Which the Standards for Human Good Are Applied: Once we have standard for human good, we need to apply them to something.  We could apply them to things that are subjective--to our mental states.  Or we could apply them to things that are objective--to states of the world.

OK.  Now we can characterize our three theories of value in light of the two dimensions in which a theory of human value can be objective or subjective.

Hedonisim is usually understood as having both a subjective understanding of the sources of value and a subjective understanding of what those standards apply to.  Our mental states determine what is good or bad for us: it depends on what we get our kicks from and what makes us feel bad.  And our mental states or subjective experiences are what the standards apply to.  So hedonism is subjective in both senses.

Welfarism is committed to a subjective view of what is good and bad for humans.  Our preferences (which are mental states) provide the criteria or standards by which utility and welfare are judged.  But welfarists are objectivists about what these standards are applied to.  Utility is a function of preference over states of the world.  My utility goes up if the world moves to a state I prefer.

Eudaimonism as I have described is a hybrid theory on both levels.  The basic standard of a flourishing life is objective--it is derived from an account of human nature and the virtues.  But for any particular individual, a flourishing life will also be a function of that individuals plans and goals and also a function of what that individual finds satisfying, rewarding, and to some extent pleasurable.  Likewise, a virtue-centered theory of human flourishing takes how one fares (faring well) and how one does (doing well) as the conditions to which the theory is applied.  So the conditions are partially objective.  But the human virtues involve subjective states.  Doing well involves doing the right actin for the right reason.  A flourishing human being has the right preferences and takes enjoyment from the right kinds of things: for this reason, the conditions to which the criteria for the human good are applied are partially subjective.

In other words, hedonism is a subjective-subjective view, welfarism is a subjective-objective view, and eudaimonism is a hybrid-hybrid view.  One can imagine views that might be objetive-objective: for example, if you believed that well-being was cashed out by a list of objective goods, such as health, meaningful work, and an active social life, you might have a view that the standards for human good are objective and that they are satisfied by objective features of particular human lives.

Arguing About (or Investigating) the Nature of Welfare, Well-Being, and Happiness

Which of these rival accounts is the best one?  Of course, the nature of the human good has been the subject of philosophical debate and cultural strife for more than two millennia.  So it will surprise no one that the Legal Theory Lexicon will just skim to the surface of the arguments that can be made for and against various conceptions of welfare, well-being, and happiness.

Let's begin with methodology.  What kinds of reasons might be offered for and against various conceptions of the human good?  Now that is a big topic in itself, but we can identify three of the common strategies used to advance our thinking about this topic:

Reflective Equilibrium: One strategy is to attack the problem directly using the method of reflective equilibrium.  We can begin with intuitions (our unreflective beliefs and the opinions of others) about the topic at hand.  Some of those beliefs will be general and abstract (e.g. "happiness is a feeling").  And some of those beliefs will be quite particular: a serious illiness involves a loss of well-being even if the pain is completely managed).  We can then attempt to formulate a theory of the good for humans (or of welfare, well-being, or happiness) that best fits those intuitions.  Some of our intuitions may need to be revised in light of the tentative theory, and some aspects of the theory may need to be revised in light of recalcitrant intuitions.  Eventually, we can reach a reflective equilibrium between beliefs that have become well-considered judgments and our general theory.

Ethical Theory & Metaethics:  There is a second method that we might employ.  We might begin with our best understanding of metaethics (at what we might think of as the highest level or "top" of normative theory.)  We could then work down through ethical theory to our conception of the human good.  For example, if we adopted an internalist view of moral motivation (i.e., that what is morally good necessarily provides motivation) then we might conclude that our view of the human good must have a certain form if it is to play this motivational role.  We might call this the top-down strategy: we proceed from axioms of metaethics to deduce the postulates and lemmas of our theory of the human good.

Thought Experiments: The notion of a thought experiment (or "hypothetical") is familiar to all legal theorists.  One of the problems of the method of reflective equilibrium may be the tendency of various conceptions of human good to coincide or converge in particular cases.  Our preferences and subjective experiences of happiness may align with elements of objective well-being such as health.  In order to pry these things apart, we might want to construct thought experiments in which force us to evaluate cases in which our subjective happiness diverges from our preferences or health.

The Experience Machine

Robert Nozick is famous for a thought experiment that can be used to test the subjective exerience conception of well-being.  Suppose you have a choice between two lives.  One is roughly equivalent to your current life (or a typical human life).  You experience pleasure and pain; some of your preferences are satisfied and some aren't.  The other life involves your being attached to an experience machine that directly feeds experiences into your brain.  You will be given an amnesiac when you are attached so that you will forget the fact that you are on the experience machine: it will seems as if you current life is continuing.  But your life on the experience machine will be supremely good from the subjective point of view.  You will feel supremely happy.  You will be successful, adored by your friends and partners, and everything that makes you feel good (whether it be career success or Jimmy Choo shoes) will come your way.  This life will involve very little or no pain, frustration, or disappointment.  Finally, the experience machine is well tested, and you are truly convinced that it will cause you no serious physical harm.  Which life would you choose?

Many people would choose a normal life with real experiences and would believe that there life on the experience machine would go very badly--although it would seem as if it were going well.  If you have this reaction to the thought experiments, then you have a reason to believe that you have metaethical intuitions that are inconsistent with a hedonistic-subjectivist conception of well-being.

Of course, this thought experiment can be criticized in various ways.  It might be argued that you aversion to the experience machine is improperly influence by a reaction that being on the machine would be "yucky"--when (by hypothesis) it would not be.  Or it might be the cases that you distrust the long-range effectiveness of the machine.  These issues have to be considered carefully before we place too much stock in the results of a thought experiment.

There is so much more to be said about the inquiry into the nature of the human good, and my discussion of methodology and one thought experiment does not even begin to scratch the surface.  Nonetheless, I hope I have given you an idea of how you might begin to think and argue about this topic.

Why Does the Human Good Matter to Legal Theory?

I imagine that most readers of the Lexicon can see that the nature of the human good has important implications for legal policy.  If the preference satisfaction view of welfare were correct, then normative law and economics might provide the correct methodology for normative legal theory.  If the hedonistic approach were correct, then we would want to pay close attention to empirical research on subjective happiness.  Normative evaluation of legal policy is one of the central activities of legal scholars, and one's views about the human good surely plays a big rule in such evaluations.  Of course, some normative theories (e.g., consequentialism) will given the human good a decisive role in the evaluation of legal policy, whereas others, e.g., deontological or rights based theories might give the human good a less prominent role.

Can We Do Normative Legal Theory Without a Conception of the Human Good?

Given the difficulty of arriving at confident conclusions about the nature of the human good, you might ask, "Can we ever reach confident conclusions in applied normative legal theory?"  Or to put the question differently, "If I can't make up my mind about the nature of the human good, can I still reach confident conclusions about what legal rules are better than others?"  One answer to this question might invoke the Rawlsian idea of an overlapping consensus.  There may be a wide range of cases where the most plausible theories of the human good converge, and legal theorists might focus on those cases.  A related strategy might invoke the idea of "public reasons," and argue that controversial conceptions of the human good are inappropriate as reasons for public policy.  Another strategy might involve a kind of what is called "pragmatism."  (I am using the scare quotes, because I have doubts about the use of that term, but those doubts can be set aside for now.)  That is, we could invoke the theory of the human good that seems most appropriate or salient for each context.  When we do tax policy, we might use the welfarist conception of the human good, but when we are thinking about health policy, we might focus on objective health outcomes.  Of course, there is always the option of abandoning normative theory altogether.  You might come to the conclusion that legal scholars can only describe existing doctrine and provide information about the probably effects of changing that doctrine.

Conclusion

As usual, the Lexicon is both too short and too long.  Too short to even give you and elementary introduction to the issues, but too long for a one minute read.  Nonetheless, I hope to have given you the tools that can help you to identify questions about the human good and to read intelligently about this topic.

Related Entries in the Lexicon

• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 012: Virtue Ethics
• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 025: Social Welfare Functions
• Legal Theory Lexicon 028: Concepts and Conceptions
• Legal Theory Lexicon 041: Metaethics
• Legal Theory Lexicon 060: Efficiency, Pareto, and Kaldor-Hicks

Other Resources on the Web

• Roger Crisp, Well-Being, Stanford Encyclopedia of Philosophy
• Andrew Moore, Hedonism, Standford Encyclopedia of Philosophy

Bibliography

• Bentham, J., (1789), An Introduction to the Principles of Morals and Legislation.
• Feldman, F. (2004) Pleasure and the Good Life (Oxford: Clarendon Press).
• Griffin, J. (1986) Well-being (Oxford: Clarendon Press).
• Mill, J.S., (1863), Utilitarianism.
• Nozick, R., (1974), Anarchy, State, and Utopia (Oxford: Basil Blackwell).
• Nussbaum, M and A. Sen (ed.) (1993) The Quality of Life, Oxford: Clarendon Press.
• Scanlon, T. (1998) What Do We Owe to Each Other?, Harvard: Belknap Press.
• Sumner, W. (1996) Welfare, Happiness, and Ethics (Oxford: Clarendon Press).

(This entry in the Legal Theory Lexicon was last revised on May 31, 2009.)

Yankah on Virtue Jurisprudence

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.

Highly recommended.

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:

Virtue Jurisprudence: A Virtue-Centered Theory of Judging

Natural Justice

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 and if 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.

Read Yankah!

Gowans on Virtue and Nature

Christopher W. Gowans (Philosophy, Fordham University) has posted Virtue and Nature on the Internet. Here is the abstract:

The Neo-Aristotelian ethical naturalism of Philippa Foot and Rosalind Hursthouse purports to establish a naturalistic criterion for the virtues. Specifically, by developing a parallel between the natural ends of nonhuman animals and the natural ends of human beings, they argue that character traits are justified as virtues by the extent to which they promote and do not inhibit natural ends such as self-preservation, reproduction, and the well-being of one’s social group. I argue that the approach of Foot and Hursthouse cannot provide a basis for moral universalism, the widely-accepted idea that each human being has moral worth and thus deserves significant moral consideration. Foot and Hursthouse both depict a virtuous agent as implicitly acting in accord with moral universalism. However, with respect to charity, a virtue they both emphasize, their naturalistic criterion (especially in the more elaborate form developed by Hursthouse) at best provides a warrant for a restricted form of charity that extends only to a limited number of persons. There is nothing in the natural ends of human beings, as Foot and Hursthouse understand these, that gives us a reason for having any concern for the well-being of human beings as such.

Blogging from the APA Pacific Division

It is 9:00 a.m. PDST, and I am blogging from the American Philosophical Association's Pacific Division Meeting in Pasadena California.  It's especially nice to be here--I grew up in Monterey Park a few miles to the south and lived for many years just a few blocks from the conference hotel.  If only the session could be held in the glorious California sunshine!

The philosophy of law panel is especially interesting this year.  Here are the details:

Invited Symposium: Philosophy of Law: What Determines the Content of Law
9:00 a.m.-Noon
Chair: Deirdre Golash (American University)
Speakers: Mark Greenberg (University of California–Los Angeles)
“Foundations of Law: Moral Facts or Social Facts”
Lawrence Solum (University of Illinois–Urbana-Champaign)
“The Content of Nomoi”
Scott Shapiro (University of Michigan–Ann Arbor)
“The Planning Theory of Law”

I'm very excited by the papers by Greenberg and Shapiro.  Frequent readers of legal theory blog know that I believe that "normative legal theory" (an exploration of the normative foundations of law in moral and political philosophy) is the most productive direction for legal philosophy and essential for rigorous thinking about particular legal problems and the nature of law in general.  Nonetheless, and somewhat to my own surprise, I think that analytic jurisprudence addressing the "what is law?" question has recently entered a particularly vibrant period.  The papers by Greenberg and Shapiro are brilliant exemplars of this work.  You may think you are bored by arcane debates between inclusive and exclusive legal positivism, but Greenberg and Shapiro's work is compelling reading--addressing the fundamental questions from fresh and exciting perspectives.

If you are't familiar with Scott Shapiro's planning theory of law or Mark Greenberg's work on the "standard picture" (SP) and his "Dependence View" (DP), this session will be a superb introduction.  If you aren't joining us here, then here are two other papers by Greenberg and Shapiro that will give you a sense of what will be happening this morning:

Mark Greenberg, The Standard Pciture and its Discontents:

In this paper, I argue that there is a picture of how law works that most legal theorists are implicitly committed to and take to be common ground. This Standard Picture (SP, for short) is generally unacknowledged and unargued for. SP leads to a characteristic set of concerns and problems and yields a distinctive way of thinking about how law is supposed to operate. I suggest that the issue of whether SP is correct is a fundamental one for the philosophy of law, more basic, for example, than the issue that divides legal positivists and anti-positivists, at least as the latter issue is ordinarily understood.

The goals of the paper are fourfold: 1) to identify and articulate in some detail the Standard Picture; 2) to show that SP is widely held and has important consequences for other debates in the philosophy of law; 3) to show that SP leads to a serious theoretical problem; 4) to sketch an alternative picture that promises to avoid this problem. I emphasize the modesty of these goals in one respect. I make no claim to refute SP or to fully develop and defend an alternative picture.

Scott J. Shapiro, Laws, Plans, and Practical Reason, 8 Legal Theory 387 (2002).  I don't have an abstract for this paper.

My paper ("The Contet of the Nomoi") isn't available online either, but you can get a sense of the argument from the following:

Lawrence B. Solum, Natural Justice:

Justice is a natural virtue. Well-functioning humans are just, as are well-ordered human societies. Roughly, this means that in a well-ordered society, just humans internalize the laws and social norms (the nomoi) - they internalize lawfulness as a disposition that guides the way they relate to other humans. In societies that are mostly well-ordered, with isolated zones of substantial dysfunction, the nomoi are limited to those norms that are not clearly inconsistent with the function of law - to create the conditions for human flourishing. In a radically dysfunctional society, humans are thrown back on their own resources - doing the best they can in circumstances that may require great practical wisdom to avoid evil and achieve good. Justice is naturally good for humans - it is part and partial of human flourishing. All of these are natural ethical facts.

"Natural Justice" develops these claims in four stages. Part I contextualizes the claim that justice is a natural virtue in relationship to Hume's famous argument about deriving ought from is, Moore's open-question argument, and the so-called fact-value distinction. The upshot of the discussion in Part I is the claim that there are no clearly decisive objections to existence of natural ethical facts.

Part II traces the movement from neo-Aristotelian virtue ethics to virtue jurisprudence by articulating a theory of the judicial virtues. Among these are the virtues of practical wisdom and of justice. Practical wisdom or phronesis is best understood on the model of moral vision, which in the context of law is legal vision or situation sense. The virtue of justice is best understood as lawfulness. Just humans are law-abiding or nomimos - in that they internalize the widely shared and deeply held social norms of their social groups. This part concludes with the claim that a legally correct decision is the decision that characteristically would be rendered by a fully virtuous judge under the circumstances of the case.

Part III argues that natural justice can be understood on the model of natural goodness as articulated in the work of Philippa Foot and Michael Thompson. The intuitive idea is that justice as lawfulness is naturally good for reason - using social creatures in human circumstances. This part also articulates and responds to a variety of objections.

Part IV concludes by articulating the sense in which an aretaic theory of law that incorporates a natural virtue of justice as lawfulness can be viewed as an expression of the natural law tradition. The natural law idea that an unjust enactment is not a true law corresponds to two senses in which positive laws can fail to be nomoi (in the technical sense specified by virtue jurisprudence). First, a given enactment may contravene deeply held and widely shared social norms. Second, such enactments may be fundamentally inconsistent with the purpose of law - the promotion of human flourishing.

I won't be "live blogging" since I'm on the program!  Hope to see you here.

Virtue Jurisprudence at the University of Arizona

I'm in the Denver airport, changing planes on my way back from Tucson to Washington, DC (where I'm visiting at Georgetown this semester).  I just wanted to say thank you to my hosts at the University of Arizona, where I presented "Virtue Jurisprudence: An Aretaic Theory of Law," at the law schools colloquium series.  I owe special thanks to Darian Ibrahim & David Marcus for their assistance during the visit.

In addition to a fine law school, the University of Arizona is the home of one of the world's great philosophy departments.  It was particularly thrilling to have Julia Annas in the audience.  It was also great to meet Rachana Kamtekar.

The paper I gave at Arizona is not yet available on the web, but you can download Natural Justice for a sense of the most recent directions this project is taking.  Here is the abstract:

Justice is a natural virtue. Well-functioning humans are just, as are well-ordered human societies. Roughly, this means that in a well-ordered society, just humans internalize the laws and social norms (the nomoi) - they internalize lawfulness as a disposition that guides the way they relate to other humans. In societies that are mostly well-ordered, with isolated zones of substantial dysfunction, the nomoi are limited to those norms that are not clearly inconsistent with the function of law - to create the conditions for human flourishing. In a radically dysfunctional society, humans are thrown back on their own resources - doing the best they can in circumstances that may require great practical wisdom to avoid evil and achieve good. Justice is naturally good for humans - it is part and partial of human flourishing. All of these are natural ethical facts.

"Natural Justice" develops these claims in four stages. Part I contextualizes the claim that justice is a natural virtue in relationship to Hume's famous argument about deriving ought from is, Moore's open-question argument, and the so-called fact-value distinction. The upshot of the discussion in Part I is the claim that there are no clearly decisive objections to existence of natural ethical facts.

Part II traces the movement from neo-Aristotelian virtue ethics to virtue jurisprudence by articulating a theory of the judicial virtues. Among these are the virtues of practical wisdom and of justice. Practical wisdom or phronesis is best understood on the model of moral vision, which in the context of law is legal vision or situation sense. The virtue of justice is best understood as lawfulness. Just humans are law-abiding or nomimos - in that they internalize the widely shared and deeply held social norms of their social groups. This part concludes with the claim that a legally correct decision is the decision that characteristically would be rendered by a fully virtuous judge under the circumstances of the case.

Part III argues that natural justice can be understood on the model of natural goodness as articulated in the work of Philippa Foot and Michael Thompson. The intuitive idea is that justice as lawfulness is naturally good for reason - using social creatures in human circumstances. This part also articulates and responds to a variety of objections.

Part IV concludes by articulating the sense in which an aretaic theory of law that incorporates a natural virtue of justice as lawfulness can be viewed as an expression of the natural law tradition. The natural law idea that an unjust enactment is not a true law corresponds to two senses in which positive laws can fail to be nomoi (in the technical sense specified by virtue jurisprudence). First, a given enactment may contravene deeply held and widely shared social norms. Second, such enactments may be fundamentally inconsistent with the purpose of law - the promotion of human flourishing.

Setiya on Efficiency as a Vice

Kieran Setiya (Pittsburg, Philosophy) has posted Is Efficiency a Vice? on the web. Here is the abstract:

Argues against the form of instrumentalism on which being practically rational is being efficient in the pursuit of one's ends. The trait of means-end efficiency turns out to be a defect of character, and therefore cannot be identified with practical reason at its best.

And here is a bit more from the text of the paper:

This paper is about the peculiar ethics of means-end efficiency. It can present itself as an aspect of good character, so that its absence is a defect . . . . But it does not always do so. It is tempting tosay about the efficiency of the nasty person what Kant says about the “coolness of a scoundrel,” that it “makes him not only far more dangerous but also immediately more abominable in our eyes” (Kant 1785, Ak. 4: 394). When Aristotle writes about cleverness (deinotes), “which is such as to be able to do the actions that tend to promote whatever end is assumed and to attain them,” he takes the middle ground: “[if], then, the goal is fine, cleverness is praiseworthy, and if the goal is base, cleverness is unscrupulousness.” But is this right? After all, there is another kind of middle ground. We might argue, against the Aristotelian view, that effi ciency in itself is neither good nor bad. It is valuable as a means, not as a virtue or a vice.

Highly recommended.

Forgiveness, Secular Values, and Public Reason

Over at the Mirror of Justice, Thomas Berg has a post entitled "Can the Secular State Forgive People?" He quotes John McCullough, who asks:

My question is whether or not the state has a moral obligation to forgive those that commit unlawful acts. Should the state, at some point, forgive an individual who has repented (i.e. served time, probation, remained law abiding, is rehabilitated) by sealing the criminal record from public view, erasing any collateral consequences associated with the conviction, offering a certificate of rehabilitation, etc. Forgiveness, from what I understand, is a Judeo-Christian virtue. Is there a place for it in the secular state? Can the secular state forgive people?

There are really two questions here.  One concerns the possibility of "forgiveness" as an action by a state that is secular.  The other concerns the underlying grounding for forgiveness--is "forgiveness" a distinctively "Judeo Christian" virtue?

As to the first question, it seems obvious that a secular state (or individual) can forgive.  Forgiveness has two components.  One is a speech act--"I forgive you."  The other is dispositional.  True forgiveness requires that the speech act be accompanied by a disposition to act in forgiving ways--to cease blaming, to treat the offending individual as if the wrongful act had not been committed, and so forth.  It seems clear to me that forgiveness by a secular state is possible--with the caveat that states are not persons and that "dispositions" by states are actually complex bundles of institutional arrangements.

As to the second question, it seems clear that a variety of secular moral theories can support a "virtue" or practice of forgiveness.  Two examples:  First, utilitarianism naturally supports forgiveness--as the disposition to engage in blaming and punishing behavior creates disutility and hence can only be justified on utilitarian grounds if it also creates counterbalancing benefits.  A utilitarian state would be obligated to forgive in a variety of circumstances.  Second, secular (neoaristotelian) virtue ethics is well suited to support a virtue of forgiveness--as a disposition to forgive for the right reasons in the right circumstances is likely a component of human flourishing.

Moreover, I should think that the idea of a "fresh start" for persons who have "paid the price of wrongdoing" can also be seen as a public value--which can be shared by reasonable persons who affirm a variety of comprehensive moral and religious doctrines.  If this is correct, then forgiveness can be a well-grounded practice in a liberal state that is neither "secular" nor "religious."

Legal Theory Lexicon: Virtue JurisprudenceIntroduction

Legal Theory Lexicon: Virtue Jurisprudence

Introduction Law students with a background in philosophy are sure to notice the strong influence of moral philosophy on legal thinking. Theories like Kant's have had a profound influence on the idea of fairness in legal theory and on the conception of rights that is at the heart of deontological legal theory. Utilitarianism and the law reform agenda of Jeremy Bentham provide an important part of the normative version of law and economics. But if you recently studied moral philosophy as an undergraduate or in graduate school, you might notice that something is missing. The moral philosophy pie can be cut in many ways, but the conventional slicing divides normative moral theory into three kinds: (1) deontological moral theores (e.g. Kant), (2) consequentialist moral theory (e.g. utilitarianism), and (3) aretaic moral theory (e.g. virtue ethics). Recently, however, a variety of legal theorists have begun to consider the implications of aretaic (virtue-centered) moral theory for the law.
This entry in the Legal Theory Lexicon series provides an introduction to "virtue jurisprudence." As always, the discussion is aimed at law students, especially first-year law students, with an interest in legal theory.
Modern Moral Philosophy and Contemporary Legal Theory The Legal Theory Lexicon already includes entries on Utilitarianism and Deontology, two of the most influential approaches for moral philosophy. In an essay titled Modern Moral Philosophy, Elizabeth Anscombe famously noted persistent problems with the deontological and utilitarian approaches that dominated normative ethics when she wrote in 1958. Anscombe's suggestion was for moral philosophers to return to Aristotle, and that is just what happened. Starting in the 1960s and accelerating through the 1980s and 1990s, there was a trickle and then an avalanche of philosophical work on virtue ethics--an approach to moral theory that emphasizes character and the virtues--as opposed to right action (deontology) or good consequences (utilitarianism). A prior entry in the Legal Theory Lexicon provided an introduction to virtue ethics and you might want to review that before you continue with this post.
Modern legal theory has strong connections with modern moral philosophy. Historically, the connection is evident in the work of Jeremy Bentham: his work combined a conceptual separation of law and morality with a utilitarian program of legal reform. Contemporary legal scholarship frequently invokes general moral theories, including preference-satisfaction utilitarianism and deontological theories like Kant’s, to make arguments about what the law should be. Such normative legal theories are addressed to lawmakers (in the broad sense), including legislators and adjudicators. Developments in political philosophy, sparked by John Rawls’s A Theory of Justice and its libertarian and communitarian critics, have met with avid attention from the legal academy.
Virtue Ethics and Legal Theory There is, however, an exception to general reflection of developments in moral philosophy in legal theory. Legal philosophy (as practiced by philosophers or academic lawyers) has only recently paid attention to one of the most significant developments in moral theory in the second half of the twentieth century, the emergence of virtue ethics.
An outpouring of articles and monographs attests to the interest of philosophers in virtue ethics. In the law, the situation has been different. The hegemony of deontological and utilitarian theories prevails, at least among legal theorists working in the common-law tradition. There are, however, a growing number of exceptions to this hegemony. Kyron Huygens (of Punishment Theory) and Stephen Bainbridge (of ProfessorBainbridge.com) are just two of a growing number of legal scholars who have discussed virtue ethics in their work.
Towards a Virtue Jurisprudence A full account of the implications of virtue ethics and epistemology for legal theory is a very large topic. Among the issues raised by virtue jurisprudence are the following:

• Virtue ethics has implications for an account of the proper ends of legislation. If the aim of law is to make citizens virtuous (as opposed to maximizing utility or realizing a set of moral rights), what are the implications for the content of the laws?
• Virtue ethics has implications for legal ethics. Current approaches to ethical lawyering emphasize deontological moral theory, i.e. duties to clients and respect for client autonomy, and these deontological approaches are reflected in the various codes of professional conduct that have been devised for lawyers, judges, and legislators. How can we reconceive legal ethics from a virtue-centered perspective?
• Accounts of the virtue of justice (in particular, Aristotle’s and Aquinas’s theories of natural justice) have implications for debates between natural lawyers and legal positivists over the nature of law.

In this Legal Theory Lexicon post, however, I will discuss only one aspect of virtue jurisprudence--a virtue-centered theory of judging in general and the virtue of justice in particular. Virtue-centered theories of judging answer the question: How should judges decide the controversies that are presented to them? A virtue-centered theory of judging provides an answer along the following lines: Judges should decide cases in accord with the virtues, or judges should render the decisions that would be made by a virtuous judge.
A Virtue-Centered Theory of Judging How would a virtue-centered theory of judging go? Let’s begin with the uncontroversial idea that good judging is inconsistent with the worst judicial vices and that it requires some minimal set of judicial virtues.

The Thin Theory of Judicial Vice Begin with the assumption that humans have characters. More particularly, let’s assume that humans have dispositional traits that incline them to behave in more or less predictable ways. Our vocabulary is rich with words to describe such traits. We use terms like “coward,” “procrastinator,” “reliable,” “hard-working,” “studious,” “curious,” “sensitive,” and so forth. Following Aristotle, let’s sort the traits, picking out those which we count as human excellences, “virtues,” and those which we count as defects, “vices.” Let’s set the virtues and any traits that are neutral to the side, and focus on the defects—traits like cowardice, gluttony, avariciousness, foolishness, and so forth.
Are there judicial vices that are inconsistent with excellence in judging? Once asked, the question answers itself. Hardly anyone thinks that corruption and incompetence are consistent with excellence in judging.
We can systematize the worst judicial vices, borrowing Aristotle’s distinction between intellectual and moral character traits. There are two important intellectual vices that are inconsistent with excellent judging. The first of these is judicial stupidity. Judges who suffer from this vice in its worst form lack the intelligence (and hence also the knowledge) necessary to do the complex intellectual work required of judges. They do not know what the rules of law are, and they are unable to see how they could be applied in particular fact situations. The second intellectual vice is judicial foolishness. Even a very smart judge can have terrible practical judgment. A foolish judge may know the law, but he cannot discern the difference between the rules that are important to the case and those that are only marginally relevant. Foolish judges are likely to make impractical demands are the lawyers and parties who appear before them.
There are also moral vices that should are inconsistent with excellent adjudication. The most obvious of these is corruption. Judges should not accept bribes. Although judges are only infrequently in physical danger, they are more frequently faced with situations in which rendering the legally correct decision might injure their popularity, social standing, or opportunities for promotion or nonjudicial work. Hence we should not select civil cowards for judicial office. Judges are often placed in anger-inducing situations. A judge who is prone to fly off the handle at small provocations is not likely to be effective in the courtroom, and hence we ought not to select the hot-tempered for judicial office.
What I have offered is a thin theory of judicial vice. This is a thin theory, because it rests on very weak assumptions about what counts as bad character. So far as I can see, no sensible normative account of judicial selection provides good reasons to reject the normative implications of the thin theory of judicial vice. No one wants stupid, foolish, corrupt, cowardly, or hot-tempered judges. Of course, these vices are not always apparent when candidates are nominated and confirmed for judicial office. There are, I am afraid, some judges on the bench today who possess the full range of these vices.
The Thin Theory of Judicial Virtue The next step in our investigation of the judicial virtues is simple. If you accept the thin theory of judicial vice, you should also accept a thin theory of judicial virtues. Why? The basic reason is conceptual: virtue is required for the absence of vice. To select a judge who lacks the intellectual defect of judicial stupidity, you must select a candidate who has the corresponding virtue of judicial intelligence. To avoid, civic cowardice, you must select a judge with the virtue of civic courage. To avoid corruption, you must select a judge with the virtue of temperance. To avoid, ill temper, you must look for candidates who have judicial temperaments. A fully-developed virtue jurisprudence would flesh out this list of judicial virtues--specifying the character traits and mental abilities that make for good judging.

A Preliminary List of the Judicial Virtues So let's make a tentative list of judicial virtues:

Judicial Sobriety "Sober as a judge" is the say that expresses the idea that judges should have what was classically called the virtue of temperance. Good judging requires that one’s desires be in order. This is clear when the temperate judge is contrasted to the judge who lacks the ability to control her appetites. Judges who care too much for their own pleasures are prone to temptation; they are likely to be swayed from the course of reason and justice by the temptations of pleasure. A libertine judge may indulge in pleasures that interfere with the heavy deliberative demands of the office. Hence, the saying “sober as a judge,” reflects the popular understanding that excessive indulgence in hedonist pleasures would interfere with excellence in the judicial role.
Judicial Courage A second virtue, judicial courage is a form of “civic courage.” The courageous judge is willing to risk career and reputation for the ends of justice.
Judicial Temperament A third virtue, judicial temperament, corresponds to the vice of bad temper. The traditional concern in judicial selection with judicial temperament is illuminated by Aristotle's account of the virtue of good temper or proates: the disposition to anger that is proportionate to the provocation and the situation. The virtue of good temper requires that judges feel outrage on the right occasions for the right reasons and that they demonstrate their anger in an appropriate manner.
Judicial Intelligence The corrective for the vices of judicial stupidity and ignorance is a form of sophia or theoretical wisdom. I shall use the phrase “judicial intelligence” to refer to excellence in understanding and theorizing about the law. A good judge must be learned in the law; she must have the ability to engage in sophisticated legal reasoning. Moreover, judges need the ability to grasp the facts of disputes that may involve particular disciplines such as accounting, finance, engineering, or chemistry. Of course, judicial intelligence is related to theoretical wisdom in general, but the two are not necessarily identical. The talents that produce theoretical wisdom in the law may be different from those that produce the analogous intellectual virtue in physics, philosophy, or microbiology. Or it may be that theoretical wisdom is the same for all these disciplines. If this is the case, then judicial intelligence may simply be general theoretical wisdom supplemented by the skills or knacks that produce fine legal thought combined with deep knowledge of the law.
Judicial Wisdom The final virtue on my short list is the corrective for bad judgment or foolishness. I shall use the phrase “judicial wisdom” to refer to a judge’s possession of the virtue of phronesis or practical wisdom: the good judge must possess practical wisdom in her selection of the proper legal ends and means. Practical wisdom is the virtue that enables one to make good choices in particular circumstances. The person of practical wisdom knows which particular ends are worth pursuing and knows which means are best suited to achieve those ends. Judicial wisdom is simply the virtue of practical wisdom as applied to the choices that must be made by judges. The practically wise judge has developed excellence in knowing what goals to pursue in the particular case and excellence in choosing the means to accomplish those goals. In the literature of legal theory, Karl Llewellyn’s notion of “situation sense” captures much of the content of the notion that judicial wisdom corresponds to the intellectual virtue of phronesis.
This abstract account of judicial wisdom can be made more concrete by considering the contrast between practical wisdom and theoretical wisdom in the judicial context. The judge who possesses theoretical wisdom is the master of legal theory, with the ability to engage in sophisticated legal reasoning and insight into subtle connections in legal doctrine. But even a judge who possesses judicial intelligence is not necessarily a reliably good judge, even if she employs the correct decision procedure in her judicial decision-making. Why not? An answer to this question begins by clarifying the distinction between judicial intelligence and judicial wisdom.

Beyond a Thin Theory of Judicial Virtue A thin theory of judicial virtue should prove uncontroversial because it avoids the tough questions about judging. Formalists and realists, conservatives and liberals—all can endorse a thin theory of judicial virtue, because thin theories don’t answer hard questions. We can distinguish thin theories of judicial virtue from theories that are “thick.” A thick theory of judicial virtue expands the list of judicial excellences to include characteristics of mind and will that are controversial. Corresponding to any particular normative theory of judging we can postulate a thick theory of judicial virtue that specifies those dispositions and capacities that are required for excellent judging according to the criteria provided by the particular theory.
An example may help. Consider Dworkin’s imaginary judge, Hercules, who decides cases by constructing the theory that fits and justifies the law as a whole; this task can only be accomplished by someone who is able to appreciate legal complexity and to see the subtle interconnections between various legal doctrines summarized in the slogan, “the law is a seamless web.” Moreover, Dworkin’s theory requires judges to have a special concern for the coherence of the law, a virtue we might call “judicial integrity.” But other normative theories of judging may not value this characteristic. For example, “judicial integrity” might not be important to an act-utilitarian theory of judging. Perhaps, the act-utilitarian would consider Hercules to be obsessed with consistency—the hobgoblin of a foolish mind.
Instrumental and Virtue-Centered Theories Thick theories of judicial virtue may be divided in two kinds, instrumental and virtue-centered. Instrumental theories of judicial virtue are those which begin with some independent criteria for what constitutes a good judicial decision and then selects a list of judicial virtues based on those criteria. For example, many normative theories of judging are decision (or outcome) centered. A decision-centered theory offers criteria for what should count as a good, right, just, or legally valid decision. For a decision-centered theory of virtue, the notion of a correct decision is primary and the judicial virtues are derived from it. Thus, Dworkin’s description of Hercules begins with the criteria for good decisions and then constructs the ideal judge who is able to render such decisions. By way of contrast, a virtue-centered theory does not proceed in this way. Rather, a virtue-centered theory begins with the an account of the virtuous judges as primary and then proceed to derive the notion of a virtuous decision from it.
A Virtue-Centered Theory So what would a virtue-centered theory look like? This is just a blog post, so I can only give you a brief outline. For the sake of simplicity and clarity, we can formulate a virtue-centered theory of judging in the form of five definitions:

• A judicial virtue is a naturally possible disposition of mind or will that when present with the other judicial virtues reliably disposes its possessor to make just decisions. The judicial virtues include but are not limited to temperance, courage, good temper, intelligence, wisdom, and justice.
• A virtuous judge is a judge who possesses the judicial virtues.
• A virtuous decision is a decision made by a virtuous judge acting from the judicial virtues in the circumstances that are relevant to the decision.
• A lawful decision is a decision that would be characteristically made by a virtuous judge in the circumstances that are relevant to the decision. The phrase “legally correct” is synonymous with the phrase “lawful” in this context.
• A just decision is identical to a virtuous decision.

The central normative thesis of a virtue-centered theory of judging is that judges ought to be virtuous and to make virtuous decisions. Judges who lack the virtues should aim to make lawful or legally correct decisions, although they may not be able to do this reliably given that they lack the virtues. Judges who lack the judicial virtues ought to develop them. Judges ought to be selected on the basis of their possession of (or potential for the acquisition of) the judicial virtues.
Conclusion Of course, this very short introduction raises many more questions than it answers. But I hope that even this very sketchy account of one aspect of virtue jurisprudence has sparked your interest. Some of the most interesting applications of virtue ethics to legal theory can be found in torts and criminal law, and we haven't even touched on those. Another very interesting set of questions arises from the notion that the aim of the law is to inculcate virtue--an idea that may be at odds with pluralist idea that morals is a matter of individual choice.
For a short introduction to my own work, check out Virtue Jurisprudence: An Aretaic Theory of Judging.

Legal Theory Lexicon: Virtue EthicsIntroduction

Legal Theory Lexicon: Virtue Ethics

Introduction The Legal Theory Lexicon already includes posts on Deontology and Utilitarianism--representing two important families of ethical theory. This week, the Lexicon provides an introduction to virtue ethics. As always, the Lexicon provides a quick and dirty summary with an eye to law students (especially first-year law students) with an interest in legal theory. Together, these three posts provide a rough and ready introduction to the three most prominent approaches to normative ethics.
What is virtue ethics? Obviously, virtue ethics has something to do with virtue, which in this context is closely related in meaning to the English word "excellence," the Latin "virtu," and the Greek, "arete." Sometimes "virtue ethics" is also called "aretaic moral theory," using the adjective form of the Greek word for virtue.
In moral philosophy, the virtues are the human excellences. Here is the definition offered by the distinguished moral philosopher, Rosalind Hursthouse:

Virtue ethics is currently one of three major approaches in normative ethics. It may, initially, be identified as the one that emphasizes the virtues, or moral character, in contrast to the approach which emphasizes duties or rules (deontology) or that which emphasizes the consequences of actions (consequentialism). Suppose it is obvious that someone in need should be helped. A utilitarian will point to the fact that the consequences of doing so will maximize well-being, a deontologist to the fact that, in doing so the agent will be acting in accordance with a moral rule such as "Do unto others as you would be done by" and a virtue ethicist to the fact that helping the person would be charitable or benevolent.

It might be illuminating to compare virtue ethics to deontology and utilitarianism via the following simplified formulas:

• Utilitarianism: An action is right if and only if the action will produce the best consequences as compared to the alternative actions that could be undertaken by the agent.
• Deontology: An action is right if and only if the action is either (a) required by a moral duty, or (b) allowed by a moral permission, and not (c) forbidden by a moral prohibition.
• Virtue Ethics: An action is right if and only if the action is one which a virtuous moral agent would characteristically perform under the circumstances.

Formulas are tricky, and I haven't tried to get these formulations exactly right. Instead, my aim was to paint broadly to give a sense of the basic structure of these three approaches to moral theory. Whereas, utilitarianism makes consequences (or states of affairs) the central idea of moral theory and deontology focuses on moral rules, virtue ethics focuses on character and human excellence.
Modern Moral Philosophy Historically, virtue ethics finds its roots in ancient Greek philosophy, particularly in the work of Plato and Aristotle, but the contemporary revival of virtue ethics can, in a sense, be traced to G.E.M. Anscombe's article, Modern Moral Philosophy published in the journal Philosophy in 1958. Anscombe's famous article noted the well-known deficiencies and problems associated with utilitarianism and deontology and suggested that a return to Aristotle's moral philosophy might provide a fruitful alternative. This marks the beginning of what might be called the aretaic turn in moral philosophy--initiating both a return to Aristotle's theory of the virtues and the development new varieties of virtue theory.
The Virtues What are the virtues? One good way to answer this question is to examine Aristotle's account of human excellence. For Aristotle, the virtues are acquired dispositional qualities; they are potentialities or powers which are states of character or of mind. Aristotle characterizes the virtues as intellectual or moral, and his views can be sketched by examining these two categories.
The moral virtues are states of character concerned with choice; examples include courage, temperance and justice. Aristotle thought that virtues such as courage related to human emotion in a particular way. In the case of courage, there is a morally neutral human emotion--fear. The disposition to excessive fear (fear that is disproportionate to the situation) is the vice of timidity. The disposition to insufficient fear is the vice of recklessness. Courage is the disposition to feel fear that is proportionate to the actual threat or danger. Hence the virtue of mean is a mean between two opposed vices, timidity and recklessness. Moral virtues, says Aristotle, are acquired as a result of habit; one must act courageously in order to become courageous.
The intellectual virtues are practical and theoretical wisdom. Practical wisdom or phronesis is excellence in deliberation: the person of practical reason is able to choose good ends and the means to achieve those ends. Practical wisdom operates in realm of praxis: action in particular situations. Theoretical wisdom or sophia, on the other hand, operates in the realm of theoria; abstract thinking, science and theory. The intellectual virtues are initially developed by teaching and mature through experience.
A fully virtuous agent, then, would be someone who possesses the full complement of the moral and intellectual virtues. This may be rare, as most humans lack some of the virtues and possess others in an imperfect form.
Virtue Ethics and Human Good What are the implications of virtue ethics for human ends and actions? Here is a very simple (and simplified) answer. Virtue ethics counsels us to cultivate virtue--to acquire the human excellences insofar as that is possible. Virtuous agents will then aim at the right goals in life, because their intellectual and emotional makeup naturally points them towards a just and flourishing life. Thus, a fully virtuous human will characteristically act in the right way for the right reasons. And what about those who lack full virtue? Many humans, however, lack fully virtuous characters. What counsel does virtue ethics offer those who lack the full complement of human excellence? The answer to this question can be developed in at least two ways. First, we might ask ourselves, "How would a virtuous human act in these circumstances?" This is, of course, part of ordinary human deliberation. When faced with a difficult choice situation, sometimes we think of someone whose character we admire, and ask, "How would she (or he) deal with this?" Second, we might ask ourselves, "What do the virtues counsel in this situation?" That is, we can take our understanding of the human excellences, and ask questions like, "What action would be courageous?" or "What action would accord with the virtue of justice?"
Particularism and Phronesis Contemporary virtue ethics is distinctive in part, because it denies something that both deontology and utilitarianism seem to affirm--that there is a decision procedure for ethics. Utilitarianism claims that there is a very simple rule (which if correctly applied) yields the morally correct action for each situation: act so as to produce the best consequences. Deontology has a similar claim: to do the right thing, simply consult the moral rules, and perform that action which is required or if no action is required, choose from among those that are permissible. Virtue ethics characteristically denies that there is any mechanical rule that generates the morally correct action. Why not? One answer to that question lies in Aristotle's idea of the phronimos, the person who possesses the virtue of practical wisdom. The phronimos has the ability to respond to the complexities of particular situations, to see what is morally salient, and to choose an action that will work given the circumstances.
Behind the virtue of phronesis or practical wisdom is an assumption about the complexity of life. Virtue ethics characteristically argues that life is more complicated than our theories and rules. It would be impossible, the virtue ethicist might argue, to write a code of rules for moral conduct. No matter how complicated the rules, situations would inevitably arise that were not covered or in which the rules produced a perverse and unintended result. Acting morally requires more than a knowledge of moral principles; it requires a sensitivity to particular situations. One way of putting this is use the metaphor of moral vision, the ability to size up a real-world choice situation, perceiving the morally relevant circumstances.
Virtue Politics and Virtue Jurisprudence What are the implications of virtue ethics for the questions that legal theorists ask? One starting point for an answer might be the development of "virtue politics," i.e. a political theory that builds on the foundations of virtue ethics. A virtue politics might begin with the idea that the goal of the state should be the establishment of the conditions for the development of human excellence. Thus, the aim of the legislator might be described as the establishment of a political and legal framework within which individual citizens can realize their full potential for human excellence. A virtue politics might also consider the implications of virtue theory for the design of political institutions. For example, institutions might both seek to counteract the fact that both citizens and office holders will frequently be less than fully virtuous and also to establish conditions under which legislators, executives, and judges are selected at least in part for their possession of the virtues.
What about the implications of virtue ethics for legal theory? We might call an aretaic approach to legal theory "virtue jurisprudence." Among the topics that aretaic legal theory might explore is a virtue-centered theory of judging, which describes the particular excellences required by judges. A virtue-centered theory of judging offers an account of the characteristics or excellences that make for a good judge. These include: (1) judicial temperance, (2) judicial courage, (3) judicial temperament, (4) judicial intelligence, (5) judicial wisdom, and (6) justice. We might say that a virtuous judge is a judge who fully possesses the judicial virtues. Although every theory of judging can incorporate some account of judicial virtue, a virtue-centered theory of judging makes the distinctive claim that the judicial virtues are central, i.e. that they have basic explanatory and normative significance.
In particular, a virtue-centered theory of judging would contend that a correct legal decision is a decision that would characteristically be made by a virtuous judge in the circumstances relevant to the decision. Thus, the central normative thesis of a virtue-centered theory of judging is that judges ought to be virtuous and to make virtuous decisions. Judges who lack the virtues should aim to make lawful or legally correct decisions, although they may not be able to do this reliably given that they lack the virtues. Judges who lack the judicial virtues ought to develop them. Judges ought to be selected on the basis of their possession of (or potential for the acquisition of) the judicial virtues.
One of the judicial virtues is "judicial wisdom," the judicial form of the phronesis. If the world is too complex for a complete code of moral rules, then what about the law. Aristotle suggested that justice according to law would inevitably fall short in at least some particular cases, because the legislature must speak in relatively general and abstract language which sometimes will produce unintended consequences that are contrary to the purposes of the law. Here is Aristotle's discussion from Chapter 10 of Book V of the Nicomochean Ethics:

What causes the difficulty is the fact that equity is just, but not what is legally just: it is a rectification of legal justice. The explanation of this is that all law is universal, and there are some things about which it is not possible to pronounce rightly in general terms; therefore in cases where it is necessary to make a general pronouncement, but impossible to do so rightly, the law takes account of the majority of cases, though not unaware that in this way errors are made. And the law is nonetheless right; because the error lies not in the law nor in the legislator but in the nature of the case; for the raw material of human behavior is essentially of this kind.

Thus, the particularism that characterizes virtue ethics may translate into a concern with equity in virtue jurisprudence.
Conclusion While utilitarianism and deontology are well-known to legal theory, virtue ethics is only beginning to have an influence on contemporary jurisprudence. Most contemporary American legal theorists were trained before virtue ethics reached its full flower in the 1980s and 1990s, and many law professors who have broad theoretical interests are only vaguely aware of the substantial impact that virtue ethics has had on contemporary moral philosophy. Nonetheless, a theoretically inclined law student can bring virtue ethics to bear on a variety of legal problems. One good example concerns the use of the "reasonable person" standard in tort law. It is interesting that tort law frames the standard of care in negligence cases with reference to the concept of an agent (the reasonable person)--and does not use the "reasonable action" or "reasonable consequences" as the fundamental idea.
If thinking about the reasonable person in tort law is a good place to begin, virtue ethics can be applied to a variety of legal problems. Here is one suggestion. Sometimes, you will find that a strict application of the rules leads to a result that is manifestly unfair and unintended. Ask yourself: "Is this a case where a virtuous judge might choose to depart from the rule on equitable grounds?" And here is another suggestion: Whenever you find yourself dissatisfied with consequentialist or deontological approaches to the moral problems that law addresses, ask yourself, "What would virtue ethics say here?" What character traits or virtues are relevant to this problem? When you start to list the relevant virtues, you will be on your way to a virtue-theoretic analysis of the legal problem!
Bibliography

Anscombe, G.E.M., 1958, "Modern Moral Philosophy", Philosophy 33:1-19.
Crisp, Roger (ed.), 1996, How Should One Live? Oxford: Clarendon Press.
Crisp, Roger and Michael Slote (eds.), 1997, Virtue Ethics, Oxford: Oxford University Press.
Foot, Philippa, 1978, Virtues and Vices, Oxford: Blackwell.
Hursthouse, Rosalind, 1999, On Virtue Ethics, Oxford: Oxford University Press. The single best one-volume statement of virtue ethics.
Solum, Lawrence B. Virtue Jurisprudence: A Virtue-Centered Theory of Judging, 34 Metaphilosophy 178 (2003).
Statman, D. (ed.), 1997, Virtue Ethics, Edinburgh: Edinburgh University Press.

Links

Virtue Ethics in the Stanford Encyclopedia of Philosophy by Rosalind Hursthouse. I highly recommend this as a starting point for further reading on virtue ethics.
Ethics Updates Page on Aristotle and Virtue Ethics.
Internet Encyclopedia of Philosophy Entry on Virtue Theory
Wikipedia Entry on Virtue Ethics.
Wikipedia Entry on Virtue Jurisprudence.
Online Guide to Ethics and Moral Philosophy: Virtue Ethics