37 Pages Posted: 16 Jan 2003
"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. The main focus of this essay is the development of a virtue-centered theory of judging. 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. This includes judicial wisdom, a form of phronesis, or sound practical judgment. A virtue-centered account of justice is defended against the argument 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 include judicial impartiality (even-handed sympathy for those affected by adjudication) and judicial integrity (respect for the law and concern for its coherence). The essay argues that a virtue-centered theory accounts for the role that virtuous practical judgment plays in the application of rules to particular fact situations. Moreover, it contends that a virtue-centered theory of judging can best account for the phenomenon of lawful judicial disagreement. Finally, 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: D69
Suggested Citation: Suggested Citation
Solum, Lawrence B., Virtue Jurisprudence: A Virtue-Centered Theory of Judging. Metaphilosophy, Vol. 34, No. 1/2, pp. 178-213, January 2003. Available at SSRN: https://ssrn.com/abstract=369940 or http://dx.doi.org/10.2139/ssrn.369940
By Orin Kerr
By Joseph Raz