Balancing Freedom and Restraint: The Role of Virtue in Legal Analysis

64 Pages Posted: 28 Apr 2022 Last revised: 9 Sep 2022

Date Written: April 23, 2022

Abstract

Even if one sees the law as “a self-contained system of legal reasoning” from which we deduce “neutral,” non-political conclusions from “general principles and analogies among cases and doctrines” (including formalist claims that judges simply call “balls and strikes” like umpires in a baseball game), one should still consider certain characteristics of the party making such deductions or calling such “balls and strikes.” [Relevant citations to quoted language are in the Article.] If such decision maker has questionable motivations, lacks proper perspective, does not grasp the flexibility in the concepts in play, does not grasp the restraints on concepts in play, does not follow the proper processes involved, and lacks the detail, courage, and tenacity needed to reach the proper “deduction” or “call,” on the face of things the formalist, too, should have reason to re-examine any “deduction” or “call” by such party. Thus, even the formalist should not deny the critical role of virtue when examining legal analysis, a role belying the notion of law as a "self-contained system of legal reasoning."

This Article thus explores basic freedoms and restraints applicable to legal analysis and the role that virtue plays in balancing such freedoms and restraints. Such exploration covers: (i) the origin, nature, and purpose of concepts and categories used in legal analysis; (ii) the experiential nature of the meaning of such concepts and categories used in legal analysis; (iii) the freedoms and restraints applicable to such concepts and categories as a result of either experience or of the concepts or categories themselves; (iv) how workable notions of virtue rightly balance such freedoms and restraints in legal analysis; (v) the distinction between such virtue and skill; (vi) reconceiving the analytically virtuous mean as a proper balance between such applicable freedoms and restraints; and (vii) defining and surveying the particular virtues that lead us to such proper balance and thus to good legal analysis. My hope is that lawyers and law schools in their curricula will follow such explorations as well in a quest to better understand legal analysis and how to teach and perform it well.

Keywords: legal analysis, virtue, skill, formalism, character, phronesis, concept, category, hermeneutic pragmatism, Peirce, Rorty, Putnam, deduction, induction, semiotics, legal education, rhetoric

Suggested Citation

Lloyd, Harold Anthony, Balancing Freedom and Restraint: The Role of Virtue in Legal Analysis (April 23, 2022). Southern California Interdisciplinary Law Journal, Forthcoming , Available at SSRN: https://ssrn.com/abstract=4092075 or http://dx.doi.org/10.2139/ssrn.4092075

Harold Anthony Lloyd (Contact Author)

Wake Forest University School of Law ( email )

Winston-Salem, NC
United States

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