Private Law, Public Consequences, and Virtue Jurisprudence
35 Pages Posted: 31 Oct 2010
Date Written: October 29, 2010
Virtue Jurisprudence is an ambitious work which seeks to significantly reshape normative legal theory debate. Modern legal theory is typically undergirded by one of two foundational assumptions. On one hand, law-and economics theory assumes that the goal of law is to maximize individual preferences. On the other, rights-based theory assumes that protecting autonomy or equality is the central purpose of law.
In Virtue Jurisprudence, Professors Farrelly and Solum reject this dichotomy. They contend that normative legal theory should be grounded in a neo-Aristotelian philosophy of virtue. Virtue is a relatively unfamiliar concept to legal academics, and Virtue Jurisprudence is the first extended work seeking to place the notion of virtue at the center of legal theory. Virtue Jurisprudence sets out to alter the course of normative theoretical debate in dramatic ways by suggesting that we may need to rethink how - and why - law works best.
This Review Essay argues that before we can determine how well aretaic theory compares with law and economics and rights theory as the best normative basis for law, we need to know much more about how virtue influences law. My critique of Virtue Jurisprudence focuses particularly on one area largely ignored by the authors: what is typically called "private law." In critiquing the work, I challenge the traditional distinction between "public" and "private" law. I assert generally that all law has public consequences, even "private law," and I posit specifically that times of economic stress shine a bright light on the distributional (i.e., public) consequences of private law rules. I conclude that virtue theory offers an intriguing new approach to the law and theory of private exchange transactions. Finally I apply my ideas to two current problems in private law: the possibility of litigation arising out of the many questions implicated by A.I.G.’s decision to pay hefty bonuses to many of the company’s executives in the wake of the government bailout and many questions arising out of the federal government’s initiatives toward helping distressed homeowners reform or modify mortgage loans with their lenders.
Keywords: virtue, contracts, moral philosophy, virtue jurisprudence, book review, review essay
Suggested Citation: Suggested Citation