Virtue jurisprudence
Encyclopedia
In the philosophy of law, virtue jurisprudence is the name given to theories of law related to virtue ethics
. By making the aretaic turn
in legal theory, virtue jurisprudence focuses on the importance of character and human excellence or virtue to questions about the nature of law, the content of the law, and judging.
A contemporary restatement of this view is found in the writings of Robert George. In his book, Making Men Moral, George argues for the promotion of virtue as the end of law and against the contrary view that the purpose of law is the protection of rights.
ideas about virtue. In the Analects, Confucius
argues that a society in which people are virtuous would have no need of judges, rules, or jurisprudence because people would be able to resolve social conflicts by themselves. Thus, it is argued that the idea of virtue is opposed to the idea of law.
It can be argued that that even virtuous citizens might disagree about the application of the law, especially where their own interests or ideological commitments are at stake. However, this argument is rather foreign to both traditional and modern Chinese political thought. Chinese political theory tends to assume that the truly virtuous are selfless to the point of martyrdom and would not consider their own personal interests and that the virtuous are able to transcend ideology. At the same time, traditional Chinese political thought regards those with absolute virtue to be historically extremely rare, and that most people, including the Emperor and his officials, are prone to both corruption and error. Consequently, there is a belief that law and indeed government is an unfortunate necessity in dealing with an imperfect world and with imperfect people.
The view that the inculcation of virtue is the proper end of legislation contrasts markedly with traditional Chinese thinking on the subject, which argues that laws exist because men are lacking in virtue. Confucianism places very little faith on the ability of law or external pressure to make men moral but rather believes that virtue must come from introspection and education. Throughout Chinese political and intellectual history, the Confucian view on law was frequently contrasted in discourse and practice with Chinese Legalist philosophy.
Virtue ethics
Virtue ethics describes the character of a moral agent as a driving force for ethical behavior, rather than rules , consequentialism , or social context .The difference between these four approaches to morality tends to lie more in the way moral dilemmas are...
. By making the aretaic turn
Aretaic turn
The aretaic turn is a movement in contemporary moral philosophy and ethics to emphasize character and human excellence or virtue, as opposed to moral rules or consequences. This movement has been extended to other philosophical disciplines, including epistemology, political philosophy, and...
in legal theory, virtue jurisprudence focuses on the importance of character and human excellence or virtue to questions about the nature of law, the content of the law, and judging.
The topics encompassed by virtue jurisprudence
Among the topics encompassed 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 legal ethics 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.
- Accounts of the virtue of justice (in particular, Aristotle and Aquinas’s theories of natural justice) have implications for debates between natural lawyers and legal positivists over the nature of law.
- A virtue-centered theory of judging, which describes the particular excellences required by judges.
The judicial virtues
The most developed aspect of virtue jurisprudence is its distinctive theory of judging. 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. 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.Criticism of a virtue-centered theory of judging
Many of the criticisms of virtue jurisprudence are parallel to those offered in the context of debates over virtue ethics. Some of these include:- The charge that virtue jurisprudence does not provide sufficient guidance for the making of legal decisions. "Do as a virtuous judge would do!" This formula provides little instruction to an ordinary decision maker.
- The argument that virtue jurisprudence requires inordinate trust in the capacities of judges. In a democratic society, the rightness or wrongness of legal decisions should be decided by criteria that are public and accessible to all citizens.
Virtue as the proper end of law
Aristotle argued that the inculcation of promotion of virtue was the proper end of law. Aquinas argued that true laws (which are rational) can teach virtue by being internalized by those who already possess sufficient virtue to grasp the purpose of the law. Even those who have not yet achieved this level of virtue can be coerced into obedience to the law, and this may enable them to become more virtuous.A contemporary restatement of this view is found in the writings of Robert George. In his book, Making Men Moral, George argues for the promotion of virtue as the end of law and against the contrary view that the purpose of law is the protection of rights.
Law and virtue outside the Western tradition
The phrase "virtue jurisprudence" is usually applied in the context of contemporary Western philosophical thinking about law. There are, however, important ideas about the relationship between law and virtue in other intellectual traditions. One example is provided by ConfucianConfucianism
Confucianism is a Chinese ethical and philosophical system developed from the teachings of the Chinese philosopher Confucius . Confucianism originated as an "ethical-sociopolitical teaching" during the Spring and Autumn Period, but later developed metaphysical and cosmological elements in the Han...
ideas about virtue. In the Analects, Confucius
Confucius
Confucius , literally "Master Kong", was a Chinese thinker and social philosopher of the Spring and Autumn Period....
argues that a society in which people are virtuous would have no need of judges, rules, or jurisprudence because people would be able to resolve social conflicts by themselves. Thus, it is argued that the idea of virtue is opposed to the idea of law.
It can be argued that that even virtuous citizens might disagree about the application of the law, especially where their own interests or ideological commitments are at stake. However, this argument is rather foreign to both traditional and modern Chinese political thought. Chinese political theory tends to assume that the truly virtuous are selfless to the point of martyrdom and would not consider their own personal interests and that the virtuous are able to transcend ideology. At the same time, traditional Chinese political thought regards those with absolute virtue to be historically extremely rare, and that most people, including the Emperor and his officials, are prone to both corruption and error. Consequently, there is a belief that law and indeed government is an unfortunate necessity in dealing with an imperfect world and with imperfect people.
The view that the inculcation of virtue is the proper end of legislation contrasts markedly with traditional Chinese thinking on the subject, which argues that laws exist because men are lacking in virtue. Confucianism places very little faith on the ability of law or external pressure to make men moral but rather believes that virtue must come from introspection and education. Throughout Chinese political and intellectual history, the Confucian view on law was frequently contrasted in discourse and practice with Chinese Legalist philosophy.
See also
- AquinasThomas AquinasThomas Aquinas, O.P. , also Thomas of Aquin or Aquino, was an Italian Dominican priest of the Catholic Church, and an immensely influential philosopher and theologian in the tradition of scholasticism, known as Doctor Angelicus, Doctor Communis, or Doctor Universalis...
- AristotleAristotleAristotle was a Greek philosopher and polymath, a student of Plato and teacher of Alexander the Great. His writings cover many subjects, including physics, metaphysics, poetry, theater, music, logic, rhetoric, linguistics, politics, government, ethics, biology, and zoology...
- ConstitutionalismConstitutionalismConstitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
- Constitutional economicsConstitutional economicsConstitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
- Rule according to higher lawRule according to higher lawThe rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...
- Judicial activismJudicial activismJudicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
- JurisprudenceJurisprudenceJurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
- Natural lawNatural lawNatural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
- Philosophy of law
- Virtue ethicsVirtue ethicsVirtue ethics describes the character of a moral agent as a driving force for ethical behavior, rather than rules , consequentialism , or social context .The difference between these four approaches to morality tends to lie more in the way moral dilemmas are...
- VirtueVirtueVirtue is moral excellence. A virtue is a positive trait or quality subjectively deemed to be morally excellent and thus is valued as a foundation of principle and good moral being....
External links
- Law and Virtue in Aquinas by Joseph M. Magee
- Legal theory lexicon: virtue jurisprudence by Lawrence B. Solum.