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Judicial Virtues and Vices:Thinking About Character
Lawrence Solum
September 2010
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Outline
Two Antinomies
Virtue Ethics Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity Dissolving the Antinomies
Implications for Judging
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Outline
Two Antinomies
Virtue Ethics Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity Dissolving the Antinomies
The Implications for Judging
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Two Antinomies
The Antinomy of Rights and Consequences
Deontological approachesDworkin Consequentialist approachesKaplow/Shavell
The Antinomy of Realism and Formalism
Legal RealismLlewellyn, Kennedy
Legal FormalismBlackstone, Scalia
The state of legal theory
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Rights versus Consequences
LouisKaplow
StevenShavell
The legal analyst
should only consider
welfare!
By welfare, Louis
means a Bergson-
Samuelson Social
Welfare Function,such as
H
h
hu
1
W
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Rights versus Consequences
Hercules will only
consider arguments of
principle!
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Rights versus Consequences
Two mutually exclusive and inconsistent views of
normative legal theory.
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Two Antinomies
The Antinomy of Rights and Consequences
Deontological approachesDworkin Consequentialist approachesKaplow/Shavell
The Antinomy of Realism and Formalism
Legal RealismLlewellyn, Kennedy
Legal FormalismBlackstone, Scalia
The state of legal theory
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Realism versus Formalism
William Blackstone,Karl Llewellyn Antonin ScaliaSonia Sotomayor
The rule of law is
a law of rules!
The appellate
court is wherepolicy is made.!
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Realism versus Formalism
On the one hand, we are all realistswe all
seem to believe in an instrumentalistconception of law. Policy talk is ubiquitous.
On the other hand, formalist intuitions are
stubborn. Some interpretations are out of
bounds. We may want the law be sufficientlyindeterminate to conform to our ideals, but
once it does conform, we want it to be hard
law.
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The State of Legal Theory
Contemporary legal theory is characterized by twoopposing tendencies with respect to the two
antinomies. Tendency One: Perpetual warfare, examples:
The debate over Kaplow & Shavells Fairness versusWelfare.
The debate over CLS & the indeterminacy thesis in the1980s.
Tendency Two: Mutual disengagement, after thesedebates, everyone goes on as if they had notoccurred.
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Outline
Two Antinomies
Virtue Ethics Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity Dissolving the Antinomies
The Implications for Judging
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Outline
Two Antinomies
Virtue Ethics Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity Dissolving the Antinomies
The Implications for Judging
Aristotles Ethics
Contemporary Virtue Ethics
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Aristotles Ethics
Virtue ethics dominatedmoral philosophy until
the modern period. Focus on Aristotle,
historical importance &influence oncontemporary virtueethics.
Other approaches tovirtue, e.g. Stoics,Hume
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Aristotles Ethics
Eudaimonia
The Function Argument The Virtues
Intellectual Virtues
Sophia (theoretical wisdom)
Phronesis
Moral Virtues
Courage, good temper, justice
Practical Wisdom:
The ability to size
up the situation,
moral vision. The
phronimos seeswhat is morally
salient & what
responses are
workable.
Translated as
happiness, but not
a feeling of well-being.
Faring well and
doing well.
Highest humanly
achievable good
is a life of
rational activity
in accord withthe human
excellences.
Disposition to the mean
with respect to a
morally neutralemotion, i.e. fear.
Excess = cowardice.
Deficiency = rashness.
Mean=courage.
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Contemporary Virtue Ethics
Essay, Modern Moral
Philosophy Critique of deontology &
consequentialism.
Suggestion that we turn
to Aristotle.
Elizabeth Anscombe
Leads to Philippa Foots
Virtues & Vices.
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Contemporary Virtue Ethics
No decision procedure for ethics, contra
utilitarianism or Kantian ethics. Replace Aristotelian science with
contemporary science.
Excise Aristotles errors about women &
slaves.
Take into account contemporary metaethics.The complexity of
human life outruns
any rule or
procedure for
deciding how to act.
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Contemporary Virtue Ethics
Rosalind Hursthouse Christine SwantonNancy Sherman Julia Annas
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Outline
Two Antinomies
Virtue Ethics Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity Dissolving the Antinomies
The Implications for Judging
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Outline
Two Antinomies
Virtue Ethics Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity Dissolving the Antinomies
The Implications for Judging
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Outline
Two Antinomies
Virtue Ethics
Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity Dissolving the Antinomies
The Implications for Judging
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Outline
Two Antinomies
Virtue Ethics
Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity Dissolving the Antinomies
The Implications for Judging
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Aretaic Theory of Judging
Uncontested Judicial Virtues
Judicial courage Incorruptibility
Judicial temperament
Judicial intelligence
Contested Judicial Virtues Judicial wisdom
Justice
We need a theory of
the virtues of judicial
wisdom and justice.
No one thinks judges should
be cowardly, corrupt, stupid,
and have anger
management problems.
Every plausible
normative theory of
judging can
endorse these
virtues.
These virtues will be
controversial. Different
normative theories ofjustice will offer different
conceptions of justice and
practical wisdom.
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The Excellent Judge is Nomimos &
PhronimosJust and Practically Wise
Nomimos
An excellent judge is Nomimos. The Greek nomos is more encompassing than
our word lawincludes social norms.
Phronimos
An excellent judge possesses practical wisdom. Legal visionability to size up the situation,
perceive what is salient.
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The Excellent Judge is Nomimos &
PhronimosJust and Practically Wise
NomimosJustice
An excellent judge is Nomimos. The Greek nomos is more encompassing than
our word lawincludes social norms.
PhronimosJudicial Wisdom
An excellent judge possesses practical wisdom. Legal visionability to size up the situation,
perceive what is salient.
Two conceptions of the
virtue of justice:
Justice as fairness &
Justice as lawfulness.
The fairness
conceptionrequires reliance
on private, first-
order normative
judgments.
The lawfulness
conception permitsagreement through
reliance on public,
second-order
judgments (nomoi).
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The Excellent Judge is Nomimos &
PhronimosJust and Practically Wise
NomimosJustice
An excellent judge is Nomimos. The Greek nomos is more encompassing than
our word lawincludes social norms.
PhronimosJudicial Wisdom
An excellent judge possesses practical wisdom. Legal visionability to size up the situation,
perceive what is salient.
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The Excellent Judge is Nomimos &
PhronimosJust and Practically Wise
Nicolas Poussin.The J udgment of Solomon (1649)
Solomon
(not
Hercules) is
the modelof the
virtuous
adjudicator.
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Statement of the Theory
A judicial virtue: Naturally possible disposition of mind or will that when
present with the other judicial virtues reliably disposes itspossessor to make virtuous decisions.
Content identified by a theory of the judicial virtues.
A virtuous judge: A judge who possesses the judicial virtues.
A virtuous decision: A decision that would characteristically be made by a
virtuous judge acting from the judicial virtues in thecircumstances that are relevant to the decision.
A lawful decision: Identical to a virtuous decision.
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Statement of the Theory
A judicial virtue: Naturally possible disposition of mind or will that when
present with the other judicial virtues reliably disposes itspossessor to make virtuous decisions.
Content identified by a theory of the judicial virtues.
A virtuous judge: A judge who possesses the judicial virtues.
A virtuous decision: A decision that would characteristically be made by a
virtuous judge acting from the judicial virtues in thecircumstances that are relevant to the decision.
A lawful decision: Identical to a virtuous decision.
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Outline
Two Antinomies
Virtue Ethics Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity Dissolving the Antinomies
The Implications for Judging
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Outline
Two Antinomies
Virtue Ethics Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity Dissolving the Antinomies
The Implications for Judging
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Rules & Equity
Rule application Phronesis is required for correct application of the
rules. Rules do no apply themselves.
Virtue jurisprudence accounts for the fact of lawfuljudicial disagreement.
Equity Life outruns codification. Phronimos can do equity in the Aristotelian
sense.
Dworkin argues that there is a
uniquely correct solution to eachand every legal problem, but in a
wide range of cases, competent
lawyers believe that there is more
than one legally correct resolution.
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Outline
Two Antinomies
Virtue Ethics Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity
Dissolving the Antinomies
The Implications for Judging
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Outline
Two Antinomies
Virtue Ethics Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity
Dissolving the Antinomies
The Implications for Judging
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Dissolving the Antinomies
The Aretaic response to the antinomy of rights and
consequences.
Similar to pragmatist absorption, but
With a theoretical foundation.
The Aretaic response to the antinomy of realism and
formalism.
They both tell part of the story. Practical wisdom and justice in a complex relationship.
Not mechanical rule application; informed by legal vision.
Equity not the imposition of personal preferences.
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Outline
Two Antinomies
Virtue Ethics Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity
Dissolving the Antinomies
The Implications for Judging
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Outline
Two Antinomies
Virtue Ethics Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity
Dissolving the Antinomies
The Implications for Judging
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Implications for Judging
The importance of judicial selection
The virtue of justice the values of judgesmatter, because lawfulness is a value.
The virtue of practical wisdom the mostimportant stage in the process occurs is notdecision but sizing up the case perception.
Character!
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irtue Ethics
Virtue
Jurisprudence
An Aretaic
Theory of
Judging
Nomimos &
Phronimos
Modern Moral
Philosophy
Solomon, not Hercules
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Outline
Two Antinomies
Virtue Ethics Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity Dissolving the Antinomies
The Implications for Judging
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Outline
Two Antinomies
Virtue Ethics Virtue Jurisprudence
Aretaic Theory of Judging
Rules & Equity Dissolving the Antinomies
The Implications for Judging
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Questions
Action Guiding?
Wicked Societies
Equality
Rival Theories of Equality
Internalization Test
Slaves & Women
Nomoi Indeterminate
Nomoi Disputed Pluralism
Relativism
Fact-Value Distinction
Legal Realism
Situationalism
Moral Realism
Sources of the Nomoi
Positivism/Natural Law
Communitarianism
Liberty
Pragmatism Cash Value
Social Construction
More
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More Questions
Aristotle on Justice
Post-Marxist Gramscian
Normative Economics Positive Economics
Decision Procedures
Ideal vs Nonideal Theory
Success Conditions I Dont Buy It
It takes a theory to beat a theory
Political Valence
Happiness & Morality
Positive or normative
Fairness Conception Lawfulness Conception
Baselines
Judicial Disagreement
Spock, McCoy, and Kirk Hercules & Solomon
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Is virtue jurisprudence capable of
guiding action?
Do as a virtuous judge would do?howdoes that provide guidance for action? Analogous to problem with virtue ethics
Several solutions: Hursthouse: The phronimos provides the
standard for action. (Common sense version.)
Swanton: The virtues provide the standard foraction. V rules. (Act courageously.) For judges, the relevant virtue, justice, refers us to the nomoi,
that is, to the social norms and laws of our community.
But dont expect a decision procedure.
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The Nomoi in Wicked Societies
3 Cases
Well functioning society & ideal theory Problem does not arise in a well-functioning society.
Problem bracketed by ideal theory. Radically dysfunctional society
Phronimos will do the best she can under thecircumstances.
Identifying the true nomoi.
Mixed case. Reasonably well-functioning societywith isolated wickedness. Identify the wicked norms, act wisely.
Limit the damage to the rule of law.
Relationship to slaves & womenInternalization testEqualityRival Theories of Equality
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Equality
Equality and aretaic theories of legislation End of law is flourishing of humans & their
communities. Aretaic conception of equality
Martha Nussbaum & Amartya Sen.
Equality of capacities for valuable functioning.
Tradeoffs depend on complex and familiar factors,
including level of economic development, Internalization test: true nomoi must be
capable of internalization by the phronomoi
Comparison with rival theories (next slide)
Relationship to slaves & women
Nussbaum
Sen
Internalization test
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Comparison with Rival Theories of
Equality
Aretaic equality versus utilitarian equality
Each counts for one but only one & declining marginal utility
of resources (wealth & income). Preferences (or other conceptions of utility) are too thin.
Preferences can be shaped by culture.
Aretaic equality versus deontological equalitythe
equality of what question Rawlss two principles, equality of wealth & income, equality
of welfare, equality of opportunity for welfare, equality of
resources, equality of opportunity for resources.
Relationship to slaves & womenInternalization test
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Aristotles Views on Slaves & Women
Very Bad! But: These views are inconsistent with modern science & the
deep premises of his theory. Nothing in contemporary virtue ethics depends on these
views.
And: His view of slavery had the consequence that almost all
slavery was unjustified in Athens His view of justice in the family was progressive for 4th
Century B.C. Greece.
Also, distinctive virtues of the oppressed.
Relationship to equality
Distinctive virtues can be
developed through
emancipatorypraxis.
Lawrence B. Solum, Virtues and
Voices, Chicago-Kent Law
Review 111 (1991).
Internalization test
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Internalization Test for True Nomoi
This test is internal to my theory & not Aristotle.
To qualify as a nomoi, a social norm must be internalizable by
fully virtuous humans, i.e., the phronomoi. To be internalizable, a nomos must be consistent with
flourishing, i.e., the development and exercise of the virtues.
Norms of exclusion and repression are inconsistent with
flourishing.
Exemplary case: Phronimos is a member of the excludedgroup.
Example: Could Frederick Douglass internalize the norms that
supported slavery?
Relationship to slaves & womenInternalization testEqualityRival Theories of Equality
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Indeterminacy of the Nomoi
Distinction:
Indeterminacy
Determinacy
Underdeterminacy
Two roles for positive law:
Specification
Resolution of conflict
Radical indeterminacy would be a problem for any
normative theory of law.
The nomoi do
underdetermine results:
social norms vary in
vagueness.
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Nomoi are disputed
Yes and no.
Most social norms are uncontested most of the
time.
But there can be large and persistent disputes,
especially given the fact of pluralism.
One role of positive law is to settle normativedisputes.
This requires sufficient agreement on social
norms recognizing legitimate authority.
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Pluralism Objection:
Fact of pluralism.
Virtue ethics could be characterized as a comprehensive
conception of the good. Rawls/Solum: Legal reason should be public reason.
Three strategies: Virtue ethics & virtue jurisprudence are consistent with
pluralismJulia Annas.
Virtue ethics & virtue jurisprudence can be formulated so as torely only on thin conceptions of virtue, happiness, etc.
Pluralism cannot be taken as a given for the purposes of idealtheory.
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Relativism
Different ways in which relativism could be relevant: Descriptive relativismno argument yet.
Metaethical relativism: no truth about morality. Normative ethical relativism: good is relative to community
norms.
Epistemic value of knowing about relativism.
Ubiquity of virtue talk across normative communities.
The lawfulness conception of the virtue of justiceabsorbs some but not all of relativism.
Epistemic modesty is appropriate but not decisive.
Noncognitivist
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Fact-Value Distinction
Three distinct points: David Humes argument about fact premises
& value conclusions. G.E. Moores open-question argument.
Facts are empirically verifiable, values arematters of preference or emotion. Moralpropositions are not truth apt.
Answers: Humes argument is irrelevant.
Moores argument is contested in metaethics.
Noncognitivism
Noncognitivist
metaethics!
1. Crude
noncognitivist
theories are
nonviable.2. Sophisticated
noncognitivist
theories make
room for
normative
ethics.3. Cognitivist
alternative
moral
propositions are
truth apt.Moral Realism
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Legal Realism
Does virtue jurisprudence add anything torealism? (Qualification: Many realisms.)
Reconcptualizations: Llewellyns idea of situation sense is
reconceptualized as the virtue of practical wisdom.
Purposive interpretation of statutes isreconceptualized in terms of the relationship betweenthe nomoi and the positive laws.
Rigorous foundations.
Differences: Flourishing versus interests.
Internalization versus instrumentalism.
Level of normative theory versus description of legal
practice.
Karl LlewellynThese realist insights
can be embedded in a
rigorous normative
theory.
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Situationalism
What is situationalism?
John Doris & Gilbert Harman.
Heated debate currently underway. Extreme situationalist claims are untenable.
Reasons to trust folk knowledge anddistrust social science.
Experiments were not designed to test
sophisticated character theorieswrongkinds of dispositions or character traits.
Virtue ethics explains many of the results.
Bottom line: commitment to the results ofempirical inquiry.
Social psychology.
Radical situationalism: all humans will perform the
same actions in the same situations.
Experiments, including Milgram
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Moral Realism
The Basic Realist Claim:
Morality is not invented, projected, or
constructed.
Moral Natualism as an interpretation of
moral realism.
Michael Thompson & Philippa Foot on
Natural Goodness
Natural science: biology & ethology.
What are the characteristics of well-
functioning humans & human societies?
Relationship to fact/value
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Sources of the Nomoi
Possibilities:
Natural development of human communities.
Game theoretic explanations.
Universal moral grammar.
Hard-wired, on the analogy of the capacity for language.
Criterion: the explanation should benaturalistic.
This criterion rules out constructivism or
invention.
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Positivism & Natural Law
General strategy: end run around the what is lawdebate.
Three kinds of disagreement: Conceptualnecessary content of the concept of law oressence.
Descriptivewhether the law in a particular jurisdiction isbest described by natural law theory or positivism.
Normativewhether law as a practice should incorporate
criteria of normative validity in the criteria for legal validity. Nomos versus law: (1) conflicts between positive law
& the nomoi & (2) nomoi that are defective becausethey fail to serve the function of law.
Razs Authority Argument
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Razs Authority Argument
The argument:
Because law claims authority, the validity conditions for law
must be content independent. But virtue jurisprudence does not adopt content
independent validity conditions for positive law.
Therefore, virtue jurisprudence is false.
The answer:
Razs premise about authority is false. It is the nomoi rather
than law that are action guiding & it is internalization rather
than authority that does the work.
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Communitarianism
Points of comparison: Aristotle on the Polis as a strong community.
Particular communities as source of the nomoi.
Flourishing of individuals and their communities.
Humans are social creatures.
Points of difference: Universal human nature.
No a prioricommitment to particular empiricalclaims about role of communities in flourishing.
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Liberty
Is virtue jurisprudential essentially opposed to evenmodest libertarianism?
End of law is fostering the acquisition, maintenance,and exercise of the virtues.
But: Role of liberty and autonomy in human developmentMills
thesis.
Role of liberty in the exercise of the diverse forms of life
consistent with the expression of the virtues. And:
The acquisition of the human excellences is a prerequisitefor the full value of liberty.
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Pragmatism
Two forms of pragmatism: Philosophical pragmatism: Dewey, James, and
Pierce. Legal pragmatism: Richard Posner, the Prairie
Pragmatists, e.g., Dan Farber.
The aretaic reconceptualization of legalpragmatism:
Purge pragmatism of ad hoc particularizedjudgment.
Provide theoretical foundations.
Retain practical judgment and practical wisdombalance by the rule of law. Phronimos andnomimos.
Ad hoc pragmatism
without foundations is
unsatisfying.
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Cash Value
William James on Cash Value.
Defense of intrinsic value ofknowledge & its role in the legalacademy.
Quinean holism about the web ofbelief: Connection of the core to the edge.
Normative theory is relatively near to the core.
Particular applications: reasonableperson standardFeldman.
QuineFeldman
[I]f you follow the pragmaticmethod, you . . . must bring
out of each word its practical
cash-value, set it at work
within the stream of yourexperience.
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Social Construction
Two Questions:
Is human nature socially constructed?
Are the nomoisocially constructed?
Three perspectives:
Aretaic theory (neutral between conceptions of
virtue) NeoAristotelian Virtue Ethics (Hursthouse)
Natural Goodness (Foot/Thompson)
No, humans like other
creatures have naturalcharacteristics. We are
social, rational,
communicating beings.
Empirical question!
--Universal moral grammer
--Natural solutions toproblems of interaction
--Contingency, path-
dependence
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Aristotle on Justice
Aristotle presents both the fairness conception and
the lawfulness conception. NE, Book V.
Opinion about the nature of justice reveal ambiguity.
Possible implications of ambiguity:
Two virtues.
Resolve the conflict in opinion.
But not an essentially ambiguous virtue.
From the point of view of virtue jurisprudence, the
task is not exegesis of Aristotle.
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The Standard Post-Marxist
Gramscian Question
In the capitalist
mode of
production,
bourgeoisie
values provide
the content of
the nomoi.
Isnt justice-as-
lawfulness
simply the
rationalization
of hegemony!
More
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Gramsci & Virtue Jurisprudence
The theory of natural goodness rightly rejects
Gramscis assertions that:
There is no human nature. All concepts are historical, contextual, and arise from social
relations.
Virtue politics could embrace Gramscis theory of
norm reformation that recognizes that existing
norms are sticky and must be transformed from
within.
Gramsci embraced Antonio Labriolas notion that
Marxism is a critical theory every element of which
is subject to revision.
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Comparison with Normative Law &
Economics
Normative law & economics is a family of
theorieswelfarism, Kaldor-Hicks, pareto
efficiency, etc.
Exclusive versus inclusive versions.
Only welfare countsexclusive.
Welfare counts tooinclusive. Virtue jurisprudence absorbs inclusive
normative law & economics but rejects
exclusive variants.
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Comparison with Positive Law &
Economics
Virtue jurisprudence incorporates a moral
psychology.
Ends can be rationally chosen & preferences can berevised.
Gerald Dworkins view of autonomy, second order
preferences and beliefs.
Akrasia or weakness of will. This may or may notconflict with the revealed preference assumption.
Is akratic action contrary to preference?
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A Decision Procedure for Ethics
Qualification: Many deontologists have taken
this criticism on board, e.g. Barbara Herman.
Why not a decision procedure?
Complexity thesis:
Life outruns rules. General and abstract versus
particular and concrete. Example: Attempts to formalize threshold
deontology are unsatisfactory.
Role of practical wisdom (phronesis).
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Ideal versus Nonideal Theory
Virtue jurisprudence as ideal theory:
Assume good faith efforts at compliance by
citizens and officials (judges, executives,
legislators).
Virtue jurisprudence as nonideal theory:
Begin with current conditions.
Strategic action (ideological judging & judicial
selection).
Is transition possible?
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What are the success conditions?
What considerations bear on the decision to accept
a large-scale normative theory of law?
Two strategies: The Method of Geometrydeduce from self-evident
principles.
The Method of Reflective Equilibriumcoherence with our
considered judgments about: metaethics, moral and political
philosophy, normative theories of doctrinal fields.
What counts as success? Sweep the field? On the
table?
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It takes a theory to beat a theory.
Assumptions:
There are sufficient arguments to put the theory on the
table. The topic at hand is theory apt.
Then: Theory comparison is required.
What are the rivals of virtue jurisprudence:
Normative theories: consequentialism, deontology. Antifoundationalist theories: legal pragmatism, legal
particularism.
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Political valence
Is virtue jurisprudence liberal/progressive or
illiberal/conservative?
First answer: wrong level of generality. This
is like asking whether consequentialism or
deontology favors the Tories or New Labor.
Second answer: virtue politics suggests thepossibility of the reconfiguration of political
space.
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Is this a positive or normative
theory?
Virtue jurisprudence is a normative theory of
law.
Aretaic theory of legislation: what is the aim of
law?
Aretaic theory of judging: what makes for
excellent judging?
Positive components:
Moral psychology
Account of the nature of lawembedded in a
theory of the virtue of justice
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Who are the phronomoi?
The problem of identifying the practically
wise. If practical wisdom is rare, how do we
know who has it.
Compounded by ideological & political
disputes.
Who would you ask for advice? Who wouldyou trust in a real emergency? Who would
you want as your Dean?
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Against the Fairness Conception
Justice is the disposition to act fairly, where
the content is given by an antecedent theory
of fairness.
Bernard Williamssessay, Justice as a Virtue.
The theory of fairness does all the work &
threatens to swallow the rest of virtue ethics. The virtue does not do the necessary social
workfirst order, private judgments.
For the lawfulness conception
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For the Lawfulness Conception
Normatively attractive: allows the virtue of
justice to serve the function coordinating
social behavior & enabling the rule of law.
Has the features of a virtue:
Stable disposition.
Natural quality of well functioning humans. Qualification: not just any social norm counts
as a nomosmust be internalizable by the
phronomoi.Against the fairness conception
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Nomoi & Baselines
Does the fairness conception of the virtue of
justice assume natural baselines?
Yes & No
Yes, in any given community, the nomoiprovide
baselines. That is the point of the lawfulness
conception.
No, the baselines can vary both synchronically
(across cultures) and diachronically (within
cultures across time).
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Fact of Judicial Disagreement
Claim:
There is at least one legal issue (or concrete case) such
that more than one resolution is legally correct. Reason:
Differentphronomoi(fully virtuous judges) could decide the
same issue or case differently.
Pace Dworkins Right Answer Thesis: In each and every case, there is one and only one legally
correct resolution.
Preserves Dworkins argument against Hart:
The phenomenology of judging is that law does not run out.
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Spock, McCoy, and Kirk
Hot-Tempered The Virtue of
Proates
The Stoic Sage
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Is Hercules really Solomon?
If Hercules were to take law as integrity
seriously, then he would need to internalize
the nomoi.
But Dworkins Hercules seems to set a very
low threshold of fit.
Hercules moves easily to the method ofmoral philosophy.
Dworkins Hercules embraces the fairness
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