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 theories (e.g. Kant
and contractualism), (2) consequentialist moral theory (e.g.
utilitarianism and welfarism), and (3) aretaic moral theories (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 and Natural Justice.
Related Lexicon Entries
- Legal Theory Lexicon 008: Utilitarianism
- Legal Theory Lexicon 010: Deontology
- Legal Theory Lexicon 012: Virtue Ethics
Bibliography
- Colin Farrely & Lawrence B. Solum, eds., Virtue Jurisprudence (Palgrave 2008).
- Ekow N. Yankah, Virtue's Domain (2008).
(This entry last revised on October 11, 2009.)