Judicial Virtues and Vices: Thinking About Character

Judicial Virtues and Vices:Thinking About Character Lawrence Solum September 2010

Outline • Two Antinomies • Virtue Ethics • Virtue Jurisprudence • Aretaic Theory of Judging • Rules & Equity • Dissolving the Antinomies • Implications for Judging

Outline • Two Antinomies • Virtue Ethics • Virtue Jurisprudence • Aretaic Theory of Judging • Rules & Equity • Dissolving the Antinomies • The Implications for Judging

Two Antinomies • The Antinomy of Rights and Consequences • Deontological approaches—Dworkin • Consequentialist approaches—Kaplow/Shavell • The Antinomy of Realism and Formalism • Legal Realism—Llewellyn, Kennedy • Legal Formalism—Blackstone, Scalia • The state of legal theory

The legal analyst should only consider welfare! Rights versus Consequences Louis Kaplow By “welfare,” Louis means a Bergson-Samuelson Social Welfare Function, such as Steven Shavell

Hercules will only consider arguments of principle! Rights versus Consequences

Rights versus Consequences Two mutually exclusive and inconsistent views of normative legal theory.

Two Antinomies • The Antinomy of Rights and Consequences • Deontological approaches—Dworkin • Consequentialist approaches—Kaplow/Shavell • The Antinomy of Realism and Formalism • Legal Realism—Llewellyn, Kennedy • Legal Formalism—Blackstone, Scalia • The state of legal theory

Realism versus Formalism The appellate court is where policy is made.! The rule of law is a law of rules! Sonia Sotomayor Karl Llewellyn William Blackstone, Antonin Scalia

Realism versus Formalism • On the one hand, we are all realists—we all seem to believe in an instrumentalist conception 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 sufficiently indeterminate to conform to our ideals, but once it does conform, we want it to be “hard law.”

The State of Legal Theory • Contemporary legal theory is characterized by two opposing tendencies with respect to the two antinomies. • Tendency One: Perpetual warfare, examples: • The debate over Kaplow & Shavell’s “Fairness versus Welfare.” • The debate over CLS & the indeterminacy thesis in the 1980s. • Tendency Two: Mutual disengagement, after these debates, everyone goes on as if they had not occurred.

Outline • Two Antinomies • Virtue Ethics • Virtue Jurisprudence • Aretaic Theory of Judging • Rules & Equity • Dissolving the Antinomies • The Implications for Judging Aristotle’s Ethics Contemporary Virtue Ethics

Aristotle’s Ethics • Virtue ethics dominated moral philosophy until the modern period. • Focus on Aristotle, historical importance & influence on contemporary virtue ethics. • Other approaches to virtue, e.g. Stoics, Hume

Highest humanly achievable good is a life of rational activity in accord with the human excellences. Aristotle’s Ethics • Eudaimonia • The Function Argument • The Virtues • Intellectual Virtues • Sophia (theoretical wisdom) • Phronesis • Moral Virtues • Courage, good temper, justice Disposition to the mean with respect to a morally neutral emotion, i.e. fear. Excess = cowardice. Deficiency = rashness. Mean=courage. Practical Wisdom: The ability to size up the situation, moral vision. The phronimos sees what is morally salient & what responses are workable. Translated as happiness, but not a feeling of well-being. “Faring well and doing well.”

Contemporary Virtue Ethics • Essay, “Modern Moral Philosophy” • Critique of deontology & consequentialism. • Suggestion that we turn to Aristotle. • Leads to Philippa Foot’s “Virtues & Vices.” Elizabeth Anscombe

Contemporary Virtue Ethics • No decision procedure for ethics, contra utilitarianism or Kantian ethics. • Replace Aristotelian science with contemporary science. • Excise Aristotle’s errors about women & slaves. • Take into account contemporary metaethics. The complexity of human life outruns any rule or procedure for deciding how to act.

Christine Swanton Rosalind Hursthouse Contemporary Virtue Ethics Nancy Sherman Julia Annas

Virtue Jurisprudence • An Aretaic Theory of Legislation • Eudaimonia & virtue as the end of law. • An Naturalistic Theory of Law and Justice • The aretaic spin on the natural law/positivism debate. • An Aretaic Theory of Judging • An account of judicial virtue and vice. 

Aretaic Theory of Judging • Uncontested Judicial Virtues • Judicial courage • Incorruptibility • Judicial temperament • Judicial intelligence • Contested Judicial Virtues • Judicial wisdom • Justice These virtues will be controversial. Different normative theories of justice will offer different conceptions of justice and practical wisdom. Every plausible normative theory of judging can endorse these virtues. No one thinks judges should be cowardly, corrupt, stupid, and have anger management problems. We need a theory of the virtues of “judicial wisdom” and “justice”.

The Excellent Judge is Nomimos & Phronimos—Just and Practically Wise • Nomimos • An excellent judge is Nomimos. • The Greek “nomos” is more encompassing than our word “law”—includes social norms. • Phronimos • An excellent judge possesses practical wisdom. • “Legal vision”—ability to size up the situation, perceive what is salient.

The Excellent Judge is Nomimos & Phronimos—Just and Practically Wise • Nomimos—Justice • An excellent judge is Nomimos. • The Greek “nomos” is more encompassing than our word “law”—includes social norms. • Phronimos—Judicial Wisdom • An excellent judge possesses practical wisdom. • “Legal vision”—ability to size up the situation, perceive what is salient. The fairness conception requires reliance on private, first-order normative judgments. The lawfulness conception permits agreement through reliance on public, second-order judgments (nomoi). Two conceptions of the virtue of justice: Justice as fairness & Justice as lawfulness.

The Excellent Judge is Nomimos & Phronimos—Just and Practically Wise • Nomimos—Justice • An excellent judge is Nomimos. • The Greek “nomos” is more encompassing than our word “law”—includes social norms. • Phronimos—Judicial Wisdom • An excellent judge possesses practical wisdom. • “Legal vision”—ability to size up the situation, perceive what is salient.

The Excellent Judge is Nomimos & Phronimos—Just and Practically Wise Solomon (not Hercules) is the model of the virtuous adjudicator. Nicolas Poussin. The Judgment of Solomon (1649)

Statement of the Theory • A judicial virtue: • Naturally possible disposition of mind or will that when present with the other judicial virtues reliably disposes its possessor 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 the circumstances that are relevant to the decision. • A lawful decision: • Identical to a virtuous decision.

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 lawful judicial disagreement. • Equity • Life outruns codification. • Phronimos can do “equity” in the Aristotelian sense. Dworkin argues that there is a uniquely correct solution to each and every legal problem, but in a wide range of cases, competent lawyers believe that there is more than one “legally correct” resolution.

Dissolving the Antinomies • 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.

Implications for Judging • The importance of judicial selection • The virtue of justice – the values of judges matter, because lawfulness is a value. • The virtue of practical wisdom – the most important stage in the process occurs is not decision but “sizing up the case” – perception. • Character!

Virtue Ethics An Aretaic Theory of Judging Virtue Jurisprudence Nomimos & Phronimos Modern Moral Philosophy Solomon, not Hercules

Outline Two Antinomies Virtue Ethics Virtue Jurisprudence Aretaic Theory of Judging Rules & Equity Dissolving the Antinomies The Implications for Judging

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 Questions

More Questions • Aristotle on Justice • Post-Marxist Gramscian • Normative Economics • Positive Economics • Decision Procedures • Ideal vs Nonideal Theory • Success Conditions • “I Don’t 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

Is virtue jurisprudence capable of guiding action? • “Do as a virtuous judge would do?”—how does 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 for action. “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 don’t expect a decision procedure.

The Nomoi in Wicked Societies3 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 the circumstances. • Identifying the true nomoi. • Mixed case. Reasonably well-functioning society with isolated wickedness. • Identify the wicked norms, act wisely. • Limit the damage to the rule of law. Internalization test Relationship to slaves & women Rival Theories of Equality Equality

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) Nussbaum Sen Internalization test Relationship to slaves & women

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 equality—the “equality of what question” • Rawls’s two principles, equality of wealth & income, equality of welfare, equality of opportunity for welfare, equality of resources, equality of opportunity for resources. Internalization test Relationship to slaves & women

Aristotle’s 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. Distinctive virtues can be developed through emancipatory praxis. Lawrence B. Solum, Virtues and Voices, Chicago-Kent Law Review 111 (1991). Internalization test Relationship to equality

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 excluded group. • Example: Could Frederick Douglass internalize the norms that supported slavery? Internalization test Relationship to slaves & women Rival Theories of Equality Equality

Judicial Virtues and Vices: Thinking About Character