Solum Virtue Bankruptcy Judges

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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




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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Hercules will only

consider arguments of

principle!


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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






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Outline

Two Antinomies





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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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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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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Rosalind Hursthouse Christine SwantonNancy Sherman Julia Annas


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Outline

Two Antinomies






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Outline

Two Antinomies






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Outline

Two Antinomies

Virtue Ethics

Virtue Jurisprudence





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Outline

Two Antinomies

Virtue Ethics

Virtue Jurisprudence





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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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NomimosJustice



PhronimosJudicial Wisdom



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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NomimosJustice



PhronimosJudicial Wisdom




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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






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Outline

Two Antinomies






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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



Rules & Equity

Dissolving the Antinomies



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Outline

Two Antinomies



Rules & Equity




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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



Rules & Equity




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Outline

Two Antinomies



Rules & Equity




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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






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Outline

Two Antinomies






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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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