This essay explores the development of "virtue jurisprudence," a general theory of law that draws on ideas developed in virtue ethics.

The Aretaic Turn in Constitutional Theory argues that an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators. Part I, The Most Dysfunctional Branch, advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their commitment to particular (...) positions on particular issues and the fervor of their ideological passions. Part II, Institutionalism and Constitutional Interpretation, engages Cass Sunstein and Adrian Vermeule's recent essay, "Interpretation and Institutions." Sunstein and Vermeule contend that theories of constitutional interpretation are most fundamentally flawed because of their failure to take an institutional turn, but their supporting arguments lead to a related but quite distinct conclusion. Only a theory of judicial character can supply the diagnosis for the ills that Sunstein and Vermeule identify: constitutional theory must take an aretaic turn. Part III, Making the Aretaic Turn in Constitutional Theory, sketches an alternative approach to judicial review and constitutional interpretation that is rooted in contemporary virtue ethics. In Part IV, Constitutional Virtues and Vices, this sketch is given flesh and bones in the form of a theory of constitutional virtue and vice. Excellence in constitutional adjudication requires the virtues of judicial courage, judicial temperament, judicial temperance, judicial intelligence, and judicial wisdom (or phronesis). Most importantly, a virtuous constitutional interpreter must have the virtue of justice, which includes as components impartiality, lawfulness, and legal vision. Part V, The Aretaic Reconstruction of the Institutional Critique, returns to institutionalism as an approach to the theory of constitutional interpretation and argues that institutionalists cannot coherently refrain from making the aretaic turn. The article ends with speculation about the possibility of a path to the restoration of judicial virtue. (shrink)

This article criticizes the recent “aretaic-turn” in legal theory. Within Criminal law theory, the main concern of aretaic theorists is culpability, and their main source of inspiration is Aristotle’s virtue ethics. Too focused on Aristotle’s virtue ethics, however, aretaic theorists fail to consider Aristotle’s views on culpability proper. Aristotle himself did not turn to virtue ethics when he discussed culpability; and thus I suggest that Aristotle himself would have rejected the contemporary aretaic turn. Still, I (...) believe that Aristotle’s work on culpability is important insofar as it laid the foundations of subsequent theories of culpability in most of the non-English-speaking West. Through Aristotle, then, I seek to show the relevance of rich and venerable legal and philosophical traditions for the advancement of our understating of some thorny problems of contemporary criminal law. (shrink)

ABSTRACTThis article investigates a virtue-centered approach to normative legal theory in the context of legislation. The core idea of such a theory is that the fundamental aim of law should be the promotion of human flourishing, where a flourishing human life is understood as a life of rational and social activities that express the human excellences. Law can promote flourishing in several ways. Because peace and prosperity are conducive to human flourishing, legislation should aim at the establishment and maintenance (...) of these conditions. The human excellences are developed in childhood and young adulthood by stable and nurturing families and by educational institutions: therefore, the law should support and foster families and schools. Although some critics have argued that an aretaic theory of legislation must support so-called “vice laws,” this is not the case. A virtue-centered approach must take into account the effects produced by criminalization of alcohol, drugs, gambling, and prosti... (shrink)

This paper argues for a coherentist theory of the justification of evidentiary judgments in law, according to which a hypothesis about the events being litigated is justified if and only if it is such that an epistemically responsible fact-finder might have accepted it as justified by virtue of its coherence in like circumstances. It claims that this version of coherentism has the resources to address a main problem facing coherence theories of evidence and legal proof, namely, the problem of (...) the coherence bias. The paper then develops an aretaic approach to the standards of epistemic responsibility which govern legal fact-finding. It concludes by exploring some implications of the proposed account of the justification of evidentiary judgments in law for the epistemology of legal proof. (shrink)

"Law week soccer competition: 16-19 May 2005." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (198), pp. 25.

This book explores the relevance of virtue theory to law from a variety of perspectives. The concept of virtue is central in both contemporary ethics and epistemology. In contrast, in law, there has not been a comparable trend toward explaining normativity on the model of virtue theory. In the last few years, however, there has been an increasing interest in virtue theory among legal scholars. 'Virtue jurisprudence' has emerged as a serious candidate for a theory of law and adjudication. (...) Advocates of virtue jurisprudence put primary emphasis on aretaic concepts rather than on duties or consequences. Aretaic concepts are, on this view, crucial for explaining law and adjudication. This book is a collection of essays examining the role of virtue in general jurisprudence as well as in specific areas of the law. Part I puts together a number of papers discussing various philosophical aspects of an approach to law and adjudication based on the virtues. Part II discusses the relationship between law, virtue and character development, with some of the essays selected analysing this relationship by combining both eastern perspectives on virtue and character with western approaches. Parts III and IV examine problems of substantive areas of law, more specifically, criminal law and evidence law, from within a virtue-based framework. Last, Part V discusses the relevance of empathy to our understanding of justice and legal morality. (shrink)

This article reviews the thoughts of some major Jewish philosophers. It presents a case study of Jewish philosophical theology, which demonstrates how Maimonides explicates the reasons for the revealed commandments. Prima facie, some of the commandments appear to be quite arbitrary and irrational, and it is shown how Maimonides deals with this. Further, this ‘theoretical’ discussion in legal philosophy about the reasons for the commandments has manifestly practical implications, specifically aretaic implications about the inculcation and establishment of certain (...) dispositions. Jewish philosophical theology muddies the grand dichotomy of theory and practice. Study is commanded for the sake of moral and social reform. And the law itself becomes most effective in a human life when obedience follows on consideration of its grounds. (shrink)

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 David Hume's famous argument about deriving ought from is, G. E. 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. (shrink)

In diesem Beitrag werde ich die Wege untersuchen, auf denen Moraltheoretiker philosophischen Sinn in der These entdecken könnten, daß das Gesetz die moralische Schlechtigkeit von Personen dadurch tolerieren sollte, daß es den Bürgern Rechte zuerkennt, moralisch Falsches zu tun. Dabei vernachlässige ich Fälle, in denen diese Toleranz deshalb angemessen erscheint, weil die Moralität des in Rede stehenden Verhaltens ungewiss oder jedenfalls unter gleichermaßen vernünftigen Personen hinreichend umstritten ist, so daß die Gewährung von Freiheit auch für den Staat als das angemessene (...) Mittel erscheint, die Problematik zu lösen. Stattdessen werde ich mich auf Fälle konzentrieren, in denen der Gesetzgeber davon überzeugt ist, daß das betreffende Verhalten tadelnswert ist, so daß weder Zweifel noch Uneinigkeit über die Bewertung des Verhaltens als ausreichende Gründe dafür genannt werden können, daß der Staat sich der Sache nicht annimmt.Wie ich im 1. Teil zeige, kann sowohl von konsequentialistischen als auch von deontologischen Moraltheorien angenommen werden, daß sie unmoralisches Verhalten erlauben, das keine Verletzung von konsequentialistischen bzw. deontologischen Pflichten darstellt. Regel-Konsequentialisten verlangen Toleranz für akt-konsequentialistisch betrachtete Verstöße, sofern sie im Rahmen ihrer Regeln erfolgen; und Deontologen fordern Toleranz für kategorisch erlaubte Taten, die sub-optimale Konsequenzen haben. Im Hinblick darauf, daß wir eine Tugenpflicht haben könnten, uns zu Personen zu entwickeln, die deontologische Erlaubnisse nicht mißbrauchen, untersuche ich eine Reihe von Gründen, die es nahe legen, daß diejenigen, die sich einer Moraltheorie der Tugendpflichten verbunden fühlen, die die Besorgnis um Handlungen durch eine Besorgnis um den Charakter der Person ersetzt, gleichwohl gute Gründe dafür hat, die Kultivierung eines guten Charakters außerhalb der Reichweite des Staates zu belassen.Die Problematik wird schwieriger, wenn wir von den unmoralischen Handlungen, die keine Pflichten verletzen , zu den unmoralischen Handlungen übergehen, die solche Pflichten verletzen. Kann ein Konsequentialist sich damit einverstanden erklären, daß der Staat Personen die Freiheit zugesteht, etwas zu tun, was konsequentialistisch verboten ist? Kann ein Deontologe nicht nur die Freiheit, Erlaubnisse zu missbrauchen, verteidigen, sondern auch die Freiheit, kategorische Verbote zu verletzen? Im 2. Teil des vorliegenden Beitrages vertrete ich die These, daß es durchaus einleuchtende Gründe dafür geben mag, daß Freiheit entweder intrinsisch oder instrumentell gut ist, um andere intrinsisch gute Dinge zu bewirken, in welchem Fall Konsequentialisten gute Gründe dafür haben, daß der Staat grundsätzlich moralische Schlechtigkeit tolerieren sollte, oder sie zumindest dann tolerieren sollte, wenn dies der Preis dafür ist, größeres Gutes zu befördern. Im 3. Teil behaupte ich, daß selbst unsere beste deontologische Theorie Maximen in sich aufnehmen kann, die es dem Gesetzgeber kategorisch verbieten, den Bürgern die Verletzung kategorischer Maximen zu verbieten. So kann es dem Gesetzgeber z.B. verboten sein, in die Privatsphäre der Bürger einzugreifen, um das Fehlverhalten von Bürgern zu ermitteln. Oder es kann dem Gesetzgeber auferlegt sein, nicht etwas zu verbieten, wenn er dieses Verbot nicht gegenüber allen Bürgern durchsetzen kann.Das Ergebnis meiner Analyse ist, daß die Theorie liberaler Toleranz nicht von der Behauptung vernünftigen Zweifels und der Uneinigkeit zwischen Gesetzgeber und Bürgern abhängt, wie es unter liberalen Politikwissenschaftlern oftmals voraus-gesetzt wird. Selbst dann, wenn vernünftige Personen sich darüber einig sind, daß eine bestimmte Art von Verhalten unmoralisch ist, und selbst dann, wenn bei dem Gesetzgeber kaum Zweifel an der Unmoralität des Verhaltens vorhanden sind, gibt es doch schwerwiegende moralische Gründe dafür, weshalb der Gesetzgeber moralisch verpflichtet sein kann, die Begehung unmoralischer Handlungen zu tolerieren. In this article I explore the ways in which moral theorists might make philosophical sense of the claim that the law ought to tolerate moral wickedness by according citizens legal rights to do moral wrongs. I set aside cases in which tolerance is proper because the morality of the conduct in question is uncertain or sufficiently contested by equally reasonable persons so as to make liberty the appropriate default solution for the state. Instead, I confine my inquiry to cases in which lawmakers are confident that the conduct in question is blameworthy, so that doubt and disagreement cannot be said to be sufficient reasons for staying the hand of the state. As I argue in Part I, both consequentialist and deontological moral theories can be thought to permit immoralities that are not violations of consequentialist or deontological obligations. Rule-consequentialists require tolerance of act-consequential wrongs that are done in the name of their rules; and deontologists require tolerance of consequentially sub-optimal deeds that are categorically permitted. While we may have aretaic obligations to become the kinds of persons who do not abuse deontological permissions, I explore a series of reasons to think that those who subscribe to an aretaic moral theory that substitutes concerns for character for concerns for actions will nevertheless have good grounds to place the cultivation of good character beyond the scope of the state. The question is harder when we move from immoralities that do not violate obligations to immoralities that do violate such obligations. Can consequentialists make sense of the state according persons liberty to do what is consequentially prohibited? Can deontologists defend not just the liberty to misuse permissions but the liberty to violate categorical prohibitions? I argue in Part II that there may be sound arguments for why liberty is either intrinsically good or instrumentally good for the achievement of other intrinsically good things, in which case, consequentialists have sounds reasons for supposing that the state ought to tolerate wickedness, tu cour , or tolerate it when it is a price that purchases greater goods. And I argue in Part III that our best deontological theory may contain within it maxims that categorically prohibit legislators from prohibiting violations of categorical maxims on the part of citizens. For example, they may be enjoined from invading citizens' privacy in the ways required to detect citizens' wrongdoing; or they may be enjoined not to prohibit what they cannot equally enforce against all. The upshot of my analysis is that a theory of liberal tolerance does not depend upon claims of reasonable doubt and disagreement amongst lawmakers and citizens, as is so often supposed amongst liberal political theorists. Even if reasonable persons agree that a kind of conduct is immoral, and even if lawmakers are in little doubt about its immorality, there are powerful moral reasons why lawmakers might be morally obligated to tolerate its persistence. (shrink)

Considerations of virtue and character appear from time to time in the agricultural biotechnology literature. Critics of the technologies often suggest that they are contrary to some virtue (usually humility) or do not fit with the image of ourselves and the human place in the world that we ought to embrace. In this article, I consider the aretaic or virtue-based objection that to engage in agricultural biotechnology is to exhibit arrogance, hubris, and disaffection. In section one, I discuss Gary (...) Comstock's treatment of this objection. In section two, I provide an alternative interpretation of the objection that more accurately reflects the concerns of those who offer the criticism than does Comstock's standard interpretation. In sections three and four, I assess the objection. I argue that despite its merits, the objection does not justify global opposition to agricultural biotechnology. Instead, it favors a limited endorsement position not unlike the one defended by Comstock. (shrink)

When we criticize someone for being unjust, deceitful, or imprudent -- or commend him as just, truthful, or wise -- what is the content of our evaluation? On one way of thinking, evaluating agents in terms that employ aretaic concepts evaluates how they regulate their actions (and judgment-sensitive attitudes) in light of the reasons that bear on them. On this virtue-centered view of practical reasons appraisal, evaluations of agents in terms of ethical virtues (and vices) are, 'inter alia', evaluations (...) of them as practical reasoners. Here I consider and respond to an objection that threatens to debunk the virtue-centered view. (shrink)

This paper defends the claim that there is deontic knowledge - knowledge of rightness and wrongness - which can be inferred from aretaic knowledge - knowledge of the possession of virtue-attributes. In doing so, it seeks to address two forceful objections, identified at the outset. The first is that the only way of making the claim appear plausible is by assuming a practice of virtue-ascription which actually makes the reverse inference. The second objection is that there is that " (...) class='Hi'>aretaic cognitivism" will face a familiar non-cognitivist challenge - that the cognitivist must choose between an "intuitionism" and a "naturalism", against both of which there are well-known attacks - and that there is no reason to believe that this challenge can be met any more readily than by a direct deontic cognitivism. After a first section in which I outline a certain weak sense of the term "norm" in which our actions are often normatively guided, the defence of aretaic cognitivism begins with a schematic expression of the practical norms which are central to a number of important moral virtues. Guidance by any one of the schematized norms is not sufficient to guarantee the virtuousness of an action, because there may be countervailing applications of competing practical norms. However, aretaic knowledge does not require knowledge that there are no such countervailing considerations - and what it does require can apparently be satisfied. Therefore, I argue, both objections can be met: there are at least some circumstances in which our possession of aretaic knowledge does not depend on the possession of deontic knowledge, and since it does not, there is a way between the horns of the non-cognitivist's dilemma. (shrink)

This thesis argues that the practices of attributability for beliefs constitutes the core of the phenomenon of ‘responsibility for beliefs’, against a strong tendency in the debate to focus exclusively on the practices of accountability for beliefs. The overarching aim of this thesis then is to offer an alternative account to the dominant theory of responsibility for beliefs, the accountability view, which is modelled on the practices of accountability for actions and is thus unsuitable to explain the practices of attributability (...) for beliefs. In particular, being control- and norm-based, the accountability view neglects cases in which we are criticisable in responsibility involving ways for our beliefs even when no breach of norms can be detected. I develop the aretaic model as an alternative virtue-centred account. On the aretaic model, someone is responsible for a belief insofar as it expresses their evaluative orientation, which is their sensitivity to both practical and theoretical reasons, oriented by their values. To explain the normativity of aretaic appraisals, I articulate the notion of evaluative orientation in aretaic terms: someone is open to commendation if their belief expresses a virtue, to criticism if it expresses a vice and to either commendation or criticism if it displays a value that is neither a virtue nor a vice. I develop several implications of my view: I resist the reduction of doxastic responsibility onto epistemic responsibility, I reject the distinction between ‘moral’ and ‘epistemic’ virtues and vices, and I deny the cogency of the control requirement. Finally, where the accountability view is unable to make sense of the practices of attributability, I suggest that the aretaic model can offer a satisfactory explanation of both the practices of attributability and accountability for beliefs. (shrink)

In this paper, we provide a philosophical perspective on the domain of business ethics in our attempt to examine to what extent an aretaic model can serve as an adequate moral context that can also accommodate the practical requirements of business. Our main objective is to show that despite any conflicts that may occur between an aretaic model and what is required in business, the Aristotelian ethical theory can serve as a morally adequate theoretical framework for business. To (...) that effect, we examine certain aspects of this model, such as the notion of virtue as a settled ethical quality, as well as that of practical wisdom as the capacity of making a choice on the basis of proper ethical reasoning. Certain criticisms of such a model are also discussed. We derive the conclusion that the aretaic model can serve the organization's objectives to a great extent, since it provides a creative fusion of individual morality with the integrity of the corporate environment as reflected in its collective responsibility. (shrink)

I argue that, if doxastic involuntarism is true, then we should reconceive what are traditionally called reasons for belief. The truth of doxastic involuntarism would rule out a certain understanding of reasons for belief according to which they are reasons to form, alter, or relinquish beliefs. Thus, reconceiving reasons for belief would require reconceiving doxastic obligations. I argue that, in fact, a reconception of reasons for belief warrants abandoning the notion of doxastic obligations, understood as obligations to perform acts of (...) belief formation, alteration, or relinquishment. Instead, the only sorts of obligations we would have that concern our doxastic states would be aretaic or practical. (shrink)

BackgroundThe nursing profession requires ethical and legal regulations to guide nurses’ performance. Ethical climate plays a part in shaping nurses’ ethical practice. Therefore, ethico-legal aspects and ethical climate contribute to improving nurses’ ethical practice and competencies with reducing medical errors in hospital settings.ObjectiveThis study examined the effect of ethico-legal aspects and ethical climate on managing safe patient care and medical errors among nurses.Materials and methodsA cross-sectional correlational study was carried out on 548 nurses. Data were collected through (...) self-administered questionnaires about nurses’ knowledge in both ethical and legal aspects, ethical practice, competencies, ethical climate and experience with medical error.ResultsThe main sources of nurses’ knowledge of ethical and legal aspects were undergraduate lectures, job experience and colleagues. Nurses’ knowledge in both ethical and legal aspects, nurses’ ethical practice and competencies were insufficient. Nurses fairly perceived their ethical climate. Also, nurses experienced medical errors about 22.6% in their units. Nurses’ knowledge of ethical and legal aspects, as well as the ethical climate were positive predictors of inadequate nurses’ ethical practice and competencies. Additionally, nurses’ knowledge in both ethical and legal aspects, ethical climate and practice had a negative influence on the occurrence of medical errors.ConclusionEnhancing nurses’ knowledge in both ethical and legal aspects as well as ethical climate could significantly influence improving nurses’ ethical practice, competencies and reducing medical errors in the study units. Therefore, planning for enhancing the nurses’ ethico-legal learning and ethical climate seems to be mandatory. (shrink)

I propose a new formalist account of legal (/proximate) causation – one that holds legal causation to be a matter of amoral, descriptive fact. The account starts with a metaphysical relation, akin to but distinct from common-sense causation, and it argues that legal causation aligns exactly with that relation; it is unified and principled.

Introduction -- Defamation Criteria: Fact or Value? -- The Elusive Distinction between Fact and Opinion -- Defamation and Freedom of Expression -- Conclusion -- 10 Conclusion: A Unifying Prescription -- Introduction -- Socialist Positivism -- Critical Legal Positivism -- Feminist Positivism -- Alternative Dispute Resolution -- Conclusion -- Bibliography -- Index.

Since the publication of Nikolas Rose’s ‘The Politics of Life Itself’ there has been vivid discussion about how biopolitical governance has changed over the last decades. This article uses what Rose terms ‘molecular politics’, a new socio-technical grip on the human body, as a contrasting background to ask anew his question ‘What, then, of biopolitics today?’ – albeit focusing not on advances in genetics, microbiology, and pharmaceutics, as he does, but on the rapid proliferation of wearables and other sensor-software gadgets. (...) In both cases, new technologies providing information about the individual body are the common ground for governance and optimization, yet for the latter, the target is habits of moving, eating and drinking, sleeping, working and relaxing. The resulting profound differences are carved out along four lines: ‘somatic identities’ and a modified understanding of the body; the role of ‘expert knowledge’ compared to that of networks of peers and self-experimentation; the ‘types of intervention’ by which new technologies become effective in our everyday life; and the ‘post-discipline character’ of molecular biopolitics. It is argued that, taken together, these differences indicate a remarkable shift which could be termed aretaic: its focus is not ‘life itself’ but ‘life as it is lived’, and its modality are new everyday socio-technical entanglements and their more-than-human rationalities of governance. (shrink)

In order to perform certain actions – such as incarcerating a person or revoking parental rights – the state must establish certain facts to a particular standard of proof. These standards – such as preponderance of evidence and beyond reasonable doubt – are often interpreted as likelihoods or epistemic confidences. Many theorists construe them numerically; beyond reasonable doubt, for example, is often construed as 90 to 95% confidence in the guilt of the defendant. -/- A family of influential cases suggests (...) standards of proof should not be interpreted numerically. These ‘proof paradoxes’ illustrate that purely statistical evidence can warrant high credence in a disputed fact without satisfying the relevant legal standard. In this essay I evaluate three influential attempts to explain why merely statistical evidence cannot satisfy legal standards. (shrink)