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.