Virtue Jurisprudence: A Virtue-Centered Theory of Judging

Abstract

"Virtue jurisprudence" is a normative and explanatory theory of law that utilizes the resources of virtue ethics to answer the central questions of legal theory. This essay begins by comparing the situation of legal theory today to the condition of ethics a few decades ago when Elizabeth Anscombe wrote her famous essay "Modern Moral Philosophy." The paper then sketches the general contours of virtue jurisprudence, including (1) the use of virtue theory to determine the aim of legislation as the promotion of virtue, (2) the use of virtue ethics as the basis for theories of legal ethics, (3) the development of a virtue-based theory of the nature of law.

The main focus of the paper is the development of a virtue-centered theory of judging. This normative and explanatory theory rivals the accounts provided by law as integrity (Ronald Dworkin) and welfarism (normative law and economics). The exposition of the theory begins with exploration of defects in judicial character such as corruption and incompetence. Next, an account of judicial virtue is introduced. The judicial virtues include judicial courage, judicial temperance, judicial temperament, judicial intelligence, and judicial wisdom. The final virtue on this list, judicial wisdom, is a form of phronesis or sound practical judgment. This virtue is illustrated by contrasting the United States Supreme Court's approach to free speech by attorneys with the approach taken by the California Supreme Court.

A virtue-centered account of justice is defended against the argument advanced by Bernard Williams that theories of fairness are prior to theories of justice. The centrality of virtue as a character trait can be drawn out by analyzing the virtue of justice into constituent elements. These elements include judicial impartiality (evenhanded sympathy for those affected by adjudication) and judicial integrity (respect for the law and concern for its coherence). The resulting virtue-centered theory of judging is then supported in two contexts. In the first context, justice as lawfulness, it is shown that a virtue-centered theory accounts for the role that virtuous practical judgment plays in the application of rules to particular fact situations. The clearly-erroneous standard of appellate review is used to illustrate this claim. Moreover, the essay argues that a virtue-centered theory of judging can best account for the phenomenon of lawful judicial disagreement. In the second context, justice as fairness, a virtue-centered approach best accounts for the practice of equity, departure from the rules based on the judge's appreciation of the particular characteristics of individual fact situations.

JEL Classification: D63, K40, K41