Virtue Jurisprudence A Virtue–Centred Theory of Judging

"Virtue jurisprudence" is a normative and explanatory theory of law that utilises 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–centred 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 judgement. A virtue–centred 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 analysing 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–centred theory accounts for the role that virtuous practical judgement plays in the application of rules to particular fact situations. Moreover, it contends that a virtue–centred theory of judging can best account for the phenomenon of lawful judicial disagreement. Finally, a virtue–centred 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.     

Virtue Epistemology and Epistemic Luck

The recent movement towards virtue–theoretic treatments of epistemological concepts can be understood in terms of the desire to eliminate epistemic luck. Significantly, however, it is argued that the two main varieties of virtue epistemology are responding to different types of epistemic luck. In particular, whilst proponents of reliabilism–based virtue theories have been focusing on the problem of what I call "veritic" epistemic luck, non–reliabilism–based virtue theories have instead been concerned with a very different type of epistemic luck, what I call "reflective" epistemic luck. It is argued that, prima facie at least, both forms of epistemic luck need to be responded to by any adequate epistemological theory. The problem, however, is that one can best eliminate veritic epistemic luck by adducing a so–called safety–based epistemological theory that need not be allied to a virtue–based account, and there is no fully adequate way of eliminating reflective epistemic luck. I thus conclude that this raises a fundamental difficulty for virtue–based epistemological theories, on either construal.     

Virtue Epistemology and Epistemic Luck

The recent movement towards virtue–theoretic treatments of epistemological concepts can be understood in terms of the desire to eliminate epistemic luck. Significantly, however, it is argued that the two main varieties of virtue epistemology are responding to different types of epistemic luck. In particular, whilst proponents of reliabilism–based virtue theories have been focusing on the problem of what I call "veritic" epistemic luck, non–reliabilism–based virtue theories have instead been concerned with a very different type of epistemic luck, what I call "reflective" epistemic luck. It is argued that, prima facie at least, both forms of epistemic luck need to be responded to by any adequate epistemological theory. The problem, however, is that one can best eliminate veritic epistemic luck by adducing a so–called safety–based epistemological theory that need not be allied to a virtue–based account, and there is no fully adequate way of eliminating reflective epistemic luck. I thus conclude that this raises a fundamental difficulty for virtue–based epistemological theories, on either construal.     

Epistemic Presuppositions and their Consequences

Traditional epistemology has, in the main, presupposed that the primary task is to give a complete account of the concept knowledge and to state under what conditions it is possible to have it. In so doing, most accounts have been hierarchical, and all assume an idealized knower. The assumption of an idealized knower is essential for the traditional goal of generating an unassailable account of knowledge acquisition. Yet we, as individuals, fail to reach the ideal. Perhaps more important, we have epistemic goals not addressed in the traditional approach – among them, the ability to reach understanding in areas we deem important for our lives. Understanding is an epistemic concept. But how we obtain it has not traditionally been a focus. Developing an epistemic account that starts from a set of assumptions that differ from the traditional starting points will allow a different sort of epistemic theory, one on which generating understanding is a central goal and the idealized knower is replaced with an inquirer who is not merely fallible but working from a particular context with particular goals. Insight into how an epistemic account can include the particular concerns of an embedded inquirer can be found by examining the parallels between ethics and epistemology and, in particular, by examining the structure and starting points of virtue accounts. Here I develop several interrelated issues that contrast the goals and evaluative concepts that form the structure of both standard, traditional epistemological and ethical theories and virtue–centered theories. In the end, I sketch a virtue–centered epistemology that accords with who we are and how we gain understanding.     

Epistemic Presuppositions and their Consequences

Traditional epistemology has, in the main, presupposed that the primary task is to give a complete account of the concept knowledge and to state under what conditions it is possible to have it. In so doing, most accounts have been hierarchical, and all assume an idealized knower. The assumption of an idealized knower is essential for the traditional goal of generating an unassailable account of knowledge acquisition. Yet we, as individuals, fail to reach the ideal. Perhaps more important, we have epistemic goals not addressed in the traditional approach – among them, the ability to reach understanding in areas we deem important for our lives. Understanding is an epistemic concept. But how we obtain it has not traditionally been a focus. Developing an epistemic account that starts from a set of assumptions that differ from the traditional starting points will allow a different sort of epistemic theory, one on which generating understanding is a central goal and the idealized knower is replaced with an inquirer who is not merely fallible but working from a particular context with particular goals. Insight into how an epistemic account can include the particular concerns of an embedded inquirer can be found by examining the parallels between ethics and epistemology and, in particular, by examining the structure and starting points of virtue accounts. Here I develop several interrelated issues that contrast the goals and evaluative concepts that form the structure of both standard, traditional epistemological and ethical theories and virtue–centered theories. In the end, I sketch a virtue–centered epistemology that accords with who we are and how we gain understanding.     

The Salience of Moral Character

In this essay I review an underappreciated strand of thought according to which the best Kantian moral theory has less in common with paradigmatically deontological theories and more in common with virtue theories than is standardly maintained. I then argue this program should be continued further, to provide not only a virtue‐based account of moral judgment but also a virtue‐based account of moral worth. I make a case that this fusion of Kantian theory with virtue theory provides the best account of moral rules, and I close by suggesting that it generates a promising new understanding of moral rights.     

INSENSITIVITY

Ethical theories do not always focus sufficiently on the correct characterization of morally bad choices. Standard accounts include: acts that are unprincipled, low‐utility, badly directed, or in violation of contracts. These standard accounts of immorality are inadequate. The concept of vices – a key part of virtue theory – offers a better account of bad choice. Most virtue ethics focuses on the warm vices (greed, lust, pride, anger, acquisitiveness …), but the cool vices – the vices of insensitivity – may pose as many dangers to human life and happiness. I discuss a range of insensitivities and the ways in which they can infiltrate personality, often spreading so as to affect the entire character. I address the objection that insensitivity is a weak account of bad choice since insensitivity is often an involuntary characteristic. I borrow from Adam Smith the concept of ‘piacularity’ to explain how involuntary habits (and the acts they cause) can be bad despite the fact they are not culpable.     

Redeeming the Acquired Virtues

The probing readings of Putting On Virtue offered by Sheryl Overmyer, Darlene Weaver, and James Foster provide a welcome opportunity for further reflection on key questions: Was Aquinas really concerned with the status of pagan virtues? Can we properly understand a thinker whose driving questions are not the same as our own without taking up a stance of pure deference? Can an inquiry into hyper‐Augustinian anxiety over acquired virtue assist us in arriving at an account of positive self‐regard? Can an account that stresses the graced character of all virtue formation be coherent? And can it do justice to the ways in which Christians reached for accounts of infused virtue precisely in order to affirm how grace overcomes the ways in which fortune hounds acquired virtue? I respond affirmatively to all of the above.     

Communication,Punishment, and Virtue

This essay suggests that while Antony Duff's model of criminal punishment as secular penance is pregnant with possibilities for theological reception and reflection, it proceeds by way of a number of separations that are brought into question by the penitential traditions of Christianity. The first three of these—between justice and mercy, censure and invitation, and state and victim, constrain the true communicative character of his account of punishment. The second set of oppositions, between sacrament and virtue, interior character and external action, and formal and moral reconciliation, subject the model of state punishment as secular penance to problematic liberal and libertarian constraints. A postsecular analogy, outlining a theology of the invitational nature of divine judgment, and drawing on Thomas Aquinas's account of penance as both sacrament and virtue, is proposed.     

Do Rawls's theories of justice fit together? A reply to Pogge

In my reply to Pogge's critique of Rawls's international relations theory, I will try to show two things: (1) that Pogge's account of the public criterion of domestic social justice endorsed by Rawls is a partial one and (2) that this leads him to wrongly postulate a significant asymmetry between Rawls's domestic and international theories of justice. In the end, I hope to show that the domestic and international accounts are characterized by a significant degree of symmetry – that both accounts are motivated by Rawls's fundamental concern with self-respect. In other words, a more expansive, complete account of the domestic public criterion of social justice necessarily leads us (contra Pogge) to affirm a significant degree of continuity between the domestic and international accounts.     

Understanding Peace within Contemporary Moral Theory

In this essay, I continue Nicholas Wolterstorff’s work of developing a rights-based theory of ethics called eirenéism, which maintains the good life only occurs when justice—as a moral state of affairs where agents enjoy the goods to which they have a right—is achieved. As a result, justice is eirenē (the Greek word for peace). In the process of developing eirenéism I explain how eirenē differs from other conceptions of peace, and I offer several interpretive arguments for how best to understand eirenéism in relation to better-known competing ethical theories, like utilitarianism, virtue ethics, duty ethics, and care ethics.     

Indiscriminable shades and demonstrative concepts

Virtue ethicists argue that modern ethical theories aim to give direct guidance about particular situations at the cost of offering artificial or narrow accounts of ethics. In contrast, virtue ethical theories guide action indirectly by helping one understand the virtues—but the theory will not provide answers as to what to do in particular instances. Recently, this had led many to think that virtue ethical theories are self-effacing the way some claim consequentialist and deontological theories are. In this paper I defend virtue ethics against the charge of self-effacement. I distinguish between modestly self-effacing theories, immodestly self-effacing theories and theories that recommend indirect guidance. Though all self-effacing theories are indirect, not all indirect theories are self-effacing. I argue that virtue ethics is not self-effacing, but rather indirectly action-guiding. The response I articulate draws on the distinctive virtue ethical mode of action-guidance: namely, that thinking hard about virtue and what kind of person one aims to be offers the kind of guidance we want (or should want) as we face practical moral problems.     

Medieval Consideration and Moral Pace

This essay examines the relationship between virtue and understandings of time through a comparative examination of two medieval Christian writers, Bernard of Clairvaux and Thomas Aquinas. By locating temporal dimensions of virtue primarily in discussions of prudence, this essay compares Thomas's account of the virtue of counsel as preparatory to prudent judgment with Bernard's earlier account of consideration as an integrating virtue that coordinates an examination of physical surroundings and social responsibilities with an examination of one's own inner life and history of moral decisions. The essay argues that accounts of virtue ethics focusing on tradition‐specific views of the human good and practical reasoning are insufficient if they do not also examine how practical reasoning interprets and responds to religious interpretations of time that disclose the distinctive kinds of moral problems arising in each historical period.     

How to Think About Virtue and Right

Abstract

Robert Johnson argues that virtue ethical accounts of right action fail because they cannot take account of the fact that there are things we ought to do precisely because we do not possess virtuous character traits. Self-improving actions are his paradigm case and it would indeed be a problem if virtue ethics could not make sense of the propriety of self-improvement. To solve this serious problem, I propose that virtue ethics ought to define right action in terms of the virtuous agent's reasons for action instead of defining right action in terms of the actions that the virtuous agent performs. I argue that this revised definition of right action makes sense of the Tightness of self-improving actions and that it can be given a genuinely virtue ethical interpretation.     

Colour Discrimination And Monitoring Theories of Consciousness

According to the monitoring theory of consciousness, a mental state is conscious in virtue of being represented in the right way by a monitoring state. David Rosenthal, William Lycan, and Uriah Kriegel have developed three different influential versions of this theory. In order to explain colour experiences, each of these authors combines his version of the monitoring theory of consciousness with a specific account of colour representation. Even though Rosenthal, Lycan, and Kriegel disagree on the specifics, they all hold that colours are represented by a single type of mental state. The main goal of this paper is to show that a more complex account of colour representation is needed for the monitoring theory of consciousness to do justice to the phenomenology of colour experiences. In particular, I will argue that the fine-grained character of colour experience—that is, the fact that perceivers can become conscious of small differences between colours—requires that colour representation be construed in terms of two different types of mental states, namely sensory states that represent appearance properties and colour representations that represent physical colours.     

Virtue Ethics,Applied Ethics and Rationality twenty-three years after After Virtue

Abstract

In evaluating the merits and shortcomings of virtue ethics I focus on some central differences between virtue ethics and rival theories such as deontology and utilitarianism. Virtue ethics does not prescribe strict rules of conduct. Instead, the virtue ethical approach can be understood as an invitation to search for standards, as opposed to strict rules, that ought to guide the conduct of our individual lives. This requires a particular method. The importance of this approach in present times will become clear when we investigate the relation between virtue ethics and postmodernity. In our postmodem age moral concepts are no longer perceived as deriving their meaning from larger frameworks. Instead, their meanings are perceived as being derived from the contingencies that define our particular existences. Thus ongoing grassroots moral engagement is required, and virtue ethics is the appropriate moral framework for doing this. This results in a broadening of rationality insofar as the full richness of our situated lives are factored into our accounts of rationality. At the same time virtue ethics prevents relativism, mainly because it does justice to the social embeddedness of human activities. In order to illustrate the virtue ethical approach I will discuss two key concepts in our moral vocabulary: responsibility and integrity. We will see how these basic concepts can be properly understood only if one takes into consideration the contingencies, inherent paradoxes and tensions in human life.     

Aquinas on Natural Law and the Virtues in Biblical Context Homosexuality as a Test Case

Marriagelike homosexual relationships expose a division among ethicists following Aquinas. Those emphasizing natural law may call such relationships unnatural; those emphasizing the virtues may approve of relationships fostering love and justice. Natural law, the virtues, and homosexuality all show up in Aquinas's Commentary on Romans —untranslated and hardly cited. Romans 1:18 opens a discussion of justice. Verse 20 provides Aquinas's chief warrant for natural law. Verse 26 applies virtue and law to "the vice against nature." But Aquinas's account also depends on Paul as an exemplar of virtue and on Aquinas's high regard for the Bible. Aquinas deploys natural law as a mode of biblical exegesis, not an alternative to it. In the De potentia , Aquinas considers how to proceed when nature and Scripture seem to conflict. The account does not settle, but rather makes more room for, dispute.     

Abstract

Although Aristotle did not mention it, integrity can be understood in an Aristotelian framework. Seeing it in these terms will show that it is an executive virtue which concerns the existential well being of an agent. This analysis is not offered as an exegesis of Aristotle's text, but as an attempt to use an Aristotelian framework to understand a virtue deemed important today. This account will have the benefit of solving some problems relating to motivational internalism and, as such, will contribute to that recent current of thought which has been highlighting the importance of virtue thinking in moral theory. I will distinguish moral judgement from decision and show that moral judgement is dependent upon virtue more strongly than it is upon impartial rationality. I will suggest that integrity is the virtue to which moral judgement gives expression and is the virtue which links judgement to decision so as to overcome akrasia.     

Thomas Aquinas on Virtuous Warfare

Thomas Aquinas, one of the "founding fathers" of just war theory, offers an account of virtuous warfare in practice. The author argues that Aquinas's approach to warfare, with its emphasis on justice and charity, is helpful in providing a coherent moral account of war to which Christians can subscribe. Particular attention is given to the role of charity, since this virtue is the distinguishing characteristic of the Christian soldier. Charity compels him to soldier justly, and by fighting justly, he is elevated by God to friendship with God. Notable features of this approach are its emphasis on the criteria for judging whether a war is just and its relativizing of the criteria for proper combat behavior.