American Journal of Jurisprudence, Vol. 51, pp. 65-105, 2006
42 Pages Posted: 27 Jan 2007
Justice is a natural virtue. Well-functioning humans are just, as are well-ordered human societies. Roughly, this means that in a well-ordered society, just humans internalize the laws and social norms (the nomoi) - they internalize lawfulness as a disposition that guides the way they relate to other humans. In societies that are mostly well-ordered, with isolated zones of substantial dysfunction, the nomoi are limited to those norms that are not clearly inconsistent with the function of law - to create the conditions for human flourishing. In a radically dysfunctional society, humans are thrown back on their own resources - doing the best they can in circumstances that may require great practical wisdom to avoid evil and achieve good. Justice is naturally good for humans - it is part and partial of human flourishing. All of these are natural ethical facts.
"Natural Justice" develops these claims in four stages. Part I contextualizes the claim that justice is a natural virtue in relationship to Hume's famous argument about deriving ought from is, Moore's open-question argument, and the so-called fact-value distinction. The upshot of the discussion in Part I is the claim that there are no clearly decisive objections to existence of natural ethical facts.
Part II traces the movement from neo-Aristotelian virtue ethics to virtue jurisprudence by articulating a theory of the judicial virtues. Among these are the virtues of practical wisdom and of justice. Practical wisdom or phronesis is best understood on the model of moral vision, which in the context of law is legal vision or situation sense. The virtue of justice is best understood as lawfulness. Just humans are law-abiding or nomimos - in that they internalize the widely shared and deeply held social norms of their social groups. This part concludes with the claim that a legally correct decision is the decision that characteristically would be rendered by a fully virtuous judge under the circumstances of the case.
Part III argues that natural justice can be understood on the model of natural goodness as articulated in the work of Philippa Foot and Michael Thompson. The intuitive idea is that justice as lawfulness is naturally good for reason - using social creatures in human circumstances. This part also articulates and responds to a variety of objections.
Part IV concludes by articulating the sense in which an aretaic theory of law that incorporates a natural virtue of justice as lawfulness can be viewed as an expression of the natural law tradition. The natural law idea that an unjust enactment is not a true law corresponds to two senses in which positive laws can fail to be nomoi (in the technical sense specified by virtue jurisprudence). First, a given enactment may contravene deeply held and widely shared social norms. Second, such enactments may be fundamentally inconsistent with the purpose of law - the promotion of human flourishing.
Keywords: virtue, jurisprudence, arete, aretaic, philosophy of law, natural, naturalism, justice, fact value, open question, is ought, Hume, G.E. Moore, Aristotle, perfectionism, natural law, positivism
Suggested Citation: Suggested Citation
Solum, Lawrence B., Natural Justice. American Journal of Jurisprudence, Vol. 51, pp. 65-105, 2006; Illinois Public Law Research Paper No. 08-28. Available at SSRN: https://ssrn.com/abstract=959646