THE ROLE OF VIRTUE IN LEGAL JUSTIFICATION*
Amalia Amaya
The concept of virtue is central in contemporary discussions over the nature of justification.
Virtue ethics, which seeks to analyze moral justification in aretaic terms, is nowadays one
of the major approaches to normative ethics, and virtue epistemology, which understands
the normative properties of beliefs in terms of the epistemic virtues of agents, is one of the
most important developments in contemporary epistemology. In law, however, with few
exceptions, there has not been a comparable trend towards explaining normativity on the
model of virtue theory.1 The theory of legal justification is dominated by a debate between
normativist approaches, i.e., approaches that explain legal justification primarily in terms of
rule-application, and instrumentalist views, which make consequentialist arguments the
clincher of justification. In this paper, my aim is to explore the possibility of developing a
virtue theory of legal justification, which puts a primary emphasis on virtues, rather than on
rules or consequences.
The structure of this paper is as follows. In section I, I shall distinguish different
versions of a theory of legal justification by the role that they assign to virtue in the analysis
of justification. In section II, I argue that a weak version of a virtue theory of legal
justification, according to which legal justification requires a combination of both aretaic
and non-areatic concepts, is problematic. In section III, I argue for a strong areatic approach
to legal justification that says that a legal decision is justified if and only if it is a decision
that a virtuous legal decision-maker would have taken in like circumstances. Section IV
considers some objections that may be raised against the proposed account of legal
justification. I conclude, in section V, by claiming that a virtue theory of legal justification
* Earlier versions of this paper were presented at the International Symposium of Philosophy at the National
Autonomous University of Mexico; the XIV Iberoamerican Coloquium of Philosophy at the University of
Lisbon; and the X International Seminar of Legal Theory at the South National University at Bahia Blanca. I
want to thank the participants in these seminars as well as the participants of the Special Workshop on
‘Virtues in Law’ at the 24th World Congress of Philosophy of Law for helpful comments.
1
For a pioneering work, see Solum (2003).
1
is grounded on an Aristotelian conception of practical reason, which contributes a
distinctive perspective to our understanding of reason in law.
I. Three Versions of an Aretaic Theory of Legal Justification
There are different roles that a notion of virtue may play in a theory of legal justification.
First, one may assign virtue an “auxiliary role.” In this approach, legal justification is
explained without any reference to the virtues. The proper locus of virtue theory is not
within a theory of justification, but rather, within a theory of legal ethics. On this view,
while virtues are crucial for developing a plausible account of the role of a judge, a lawyer,
or a prosecutor, they are, nevertheless, irrelevant when determining whether a judge’s
decision, a lawyer’s decision, or a prosecutor’s decision is justified. A virtue theory
developed along these lines is compatible with rule-based theories of legal justification as
well as with consequentialist approaches to legal justification. Virtue theory, on this view,
isn’t an alternative theory of adjudication, but rather a complement to existing accounts of
legal justification. Any adequate theory of adjudication should give an account of the
qualities of the agents that make for good legal decision-making. However, neither
normativism nor instrumentalism have provided a thorough account of the traits of
character needed by legal decision-makers if they are to discharge their responsibilities
properly. Virtue theory would then come to the fore to fill in this important gap in current
approaches to adjudication.
That virtues ought to play a role in a theory of professional ethics in law is, I
believe, a claim that most legal theorists would be ready to accept. To date, most theories of
legal ethics are, however, deontological or utilitarian theories. The possible application of
virtue theory to legal ethics remains a relatively unexplored topic.2 A potential advantage of
virtue theory over other approaches to legal ethics is that it may give richer accounts of the
legal institutional roles. Good decision-making, particularly in hard cases, requires the
possession of capacities that go beyond the ability to properly assess relevant consequences
2
For some attempts to study legal ethics from within a virtue perspective, see Saguil (2006); Milde (2002);
Graham (2003); Cassidy (2006); and Markovits (2008).
2
and the mere compliance with a number of duties. The possession of some character traits,
such as prudence, courage, wisdom, or justice, is arguably conducive to good (justified)
decisions as well as constitutive of the conception of a good judge, a good lawyer, or a
good prosecutor. Thus, a virtue approach to legal ethics would allow us to provide a thicker
conception of professional legal roles than that offered by either consequentialist or
deontological accounts. In this sense, either as a supplement to existing theories of legal
ethics or as an alternative to them, virtue theory may play an important (albeit, auxiliary)
role in a theory of legal justification.
A second role that virtues may play in a theory of justification is an “epistemic”
one. It is, one may argue, by looking at what virtuous legal decision-makers do that we may
identify which legal decisions are right. On this view, what virtuous legal decision-makers
do is the best criterion for what is legally justified. A theory of adjudication that gives
virtue an epistemic role does not hold, however, that what is legally justified is a function
of what a virtuous legal decision-maker would do. That is to say, an epistemic version of
virtue jurisprudence rejects the claim that a legal decision is right because it is a decision
that a virtuous legal decision-maker would take. To the contrary, on this view, the notion of
a justified legal decision is prior to that of a virtuous legal decision-maker. In other words,
the status of legal decisions as justified is independent from the evaluation of legal
decision-makers. Nonetheless, virtues are exceedingly important in a theory of legal
justification, as they play a crucial role in determining which decisions are justified.
According to this approach, the notion of a virtuous judge is best viewed as an important
heuristic device. It is by thinking about how a virtuous judge would proceed when faced
with a particular case, that one may determine what one ought to do. It might even be the
case that, in hard cases, it takes virtue to recognize which decision is justified. That is to
say, there might be cases in which virtue is not only the best criterion for determining what
is legally justified, but also the only criterion we have. But the status of a decision as
justified does not depend on whether a virtuous judge would take it. One could interpret
Ronald Dworkin’s theory of law as integrity as a theory that gives virtue an epistemic role
in legal justification. For Hercules, the virtuous judge par excellence, reaches the decision
3
that is justified in the particular case, but what makes the decision justified is not that
Hercules would have taken it, but rather, a condition of coherence.3
Last, virtue may play a ‘constitutive role’ in a theory of legal justification. In this
view, virtue is not merely a criterion of justification, but rather a condition of justification.
That is to say, it is not merely the case that what a virtuous judge would decide is the best
criterion for determining what is right, but rather the claim is that the rightness of the
decision itself depends on it being a decision that a virtuous judge might have taken. There
are different ways in which one could develop a theory of adjudication that gives virtue a
constitutive role. I would like to distinguish between two different aretaic conceptions of
legal justification: a ‘strong’ version and a ‘weak’ one. According to a ‘strong’ version, the
justificatory status of legal decisions is entirely derivative from the character of legal
decision-makers. In contrast, a ‘weak’ aretaic theory of legal justification denies that one
may explain all there is to legal justification in aretaic terms. On this view, while one
cannot explain the nature of legal justification without appealing to aretaic concepts, these
aren’t sufficient either to give an account of adjudication. I turn now to examine in some
detail each of these constitutive versions of a virtue theory of legal justification. I start by
discussing the weaker, less controversial, thesis about the connection between virtue and
legal justification.
II. Judicial Wisdom and Hard Cases
One could give virtue a constitutive role in a theory of adjudication, but deny that legal
justification may be entirely explained in aretaic terms. In this approach, while virtue is a
main contributor to legal justification, it is necessary to appeal to non-aretaic concepts in
order to give a full account of the conditions under which legal decisions are justified.
There are two reasons why –it might be argued- virtues do not suffice to explain the nature
of legal justification. First, virtues may play a legitimate role in the justification of
Dworkin explicitly averts us against any interpretation of Hercules’ answer to legal problems as defining
what law as integrity requires. Hercules merely illustrates how a judge approaching a legal problem as law as
integrity demands would proceed, but his judgments are not meant to be constitutive of the truth of the answer
at which he arrives. See Dworkin (1986: 33).
3
4
decisions in hard cases; however, in easy cases there is no need to appeal to the judicial
virtues in order to determine the justificatory status of a legal decision. Decisions in easy
cases are fully justified on the grounds of non-aretaic notions. Thus, an aretaic approach to
legal justification is at best applicable only to hard cases. Secondly, the aretaic theory of
legal justification is insufficient even in those cases where it may be said to apply. In hard
cases, as much as in easy cases, legal rules and principles ought to play a role in
justification. While virtues are necessary to correctly apply the law in hard cases, this does
not dispense with the requirement that legal decisions be grounded on the applicable law.
Thus, virtue theory is a crucial supplement to a rule-based conception of adjudication, but it
is not a sufficient substitute for this conception.
Neil MacCormick seems to be sympathetic to this mixed account of adjudication.4
In easy cases, claims MacCormick, the justification of legal decisions can be achieved by
simple deduction from clearly established rules and the undisputed facts of the case.
However, when the application of law becomes problematic (because of problems of
interpretation, relevance, proof, or classification)5 a judge needs “Solomon’s wisdom,” that
is, a capacity for practical judgment, a moral sense which allows her to make “a fresh
judgment directed at its very particulars.”6 In hard cases, where the decision is not tractable
as a ‘rule case,’7 the judge may take King Salomon as a model to guide her reasoning. In
this approach to legal justification, virtues help the decision-maker apply the rules: wisdom
will lead the judge to problematize the rule’s applicability, and thus to remove it from the
category of rule-cases, and decide in a way that is fully responsive to the particularities of
the case. This, however, does not mean that in hard cases rules do not play any role. For,
according to MacCormick, the particular facts of the case, as detected by the judge
endowed with wisdom, may be justifying reasons only if they are subsumable under a
relevant principle of action universally stated.8 Further, such principle has to be shown to
4
See MacCormick (2005: 78-100).
5
MacCormick (1994: 65-97).
6
MacCormick (2005: 81).
7
The term is Detmold’s. See Detmold (1984). Quoted in MacCormick (2005: 81).
8
MacCormick (2005: 88-91).
5
be grounded in pre-established law in order to comply with the requirements of the Rule of
Law.9 Hence, on this view, virtues are essential to legal justification, in that they are
necessary to justify decisions in hard cases, but they function as aids to rule-application
rather than as substitutes for rules.
This mixed approach to adjudication has some problems. To start with, this
approach fails to provide a unitary theory of adjudication for both easy and hard cases.
However, it is desirable that one and the same method be shown to apply to all legal cases.
In addition, this mixed theory assumes too sharp a distinction between easy cases and hard
cases. The distinction between easy cases and hard ones is neither rigid nor stable over
time. 10 Moreover, there is often disagreement about whether a case is hard or not. It might
take virtue to determine whether the application of a rule to a case is, despite appearances
to the contrary, problematic. Hence, the distinction between easy and hard cases cannot be
used to determine when a virtue approach is called for and when, to the contrary, a rulebased method of reasoning is appropriate.
Another problem with this mixed approach to adjudication stems from the
relationship between theories of legal justification and conceptions of practical reason. The
attempt to explain adjudication in terms of both rule-application and virtue notions may be
viewed as an effort to fix a main problem of normativist approaches to adjudication,
namely, the problem of indeterminacy. Rule-based conceptions of adjudication fail to
supply a criterion for choosing among different outcomes of rule application. As a result,
they do not give determinate guidance to legal decision-makers as to how they ought to
decide in cases in which more than one decision is justifiable under the applicable rules.
Virtues solve this problem by providing a further criterion for choosing among several
justifiable outcomes. Faced with a case in which more than one decision seems to be
equally legitimate, the justified one is the decision that a virtuous judge would have taken.
Thus, a mix theory of justification, one that combines aretaic notions with normativist
elements, apparently has the resources to address the nagging problem of legal
9
MacCormick (2005: 99-100).
10
See Dworkin (1986: 350-54). See also MacCormick (1994: 197, 227-28).
6
indeterminacy. Doubts may be raised, however, as to whether such a mixed account may be
developed into a coherent theory of justification. While a normativist conception of
justification is grounded on a rule-based approach to practical reason, generally associated
with Kant, an areatic approach has its roots in an Aristotelian conception of practical
reason. Thus, the coherence of a theory of legal justification which coordinates irreducible
notions of virtue along with irreducible normative notions will, at the end, depend on the
controversial issue of whether the Kantian and the Aristotelian views on practical reason
may be satisfactorily reconciled.11 In light of these problems, it is worth exploring the
possibility of providing a unified account of legal justification that explains all there is to
legal justification in aretaic terms.
III. Legal Justification by Virtue
The strong aretaic conception of adjudication defines legal justification by appealing
exclusively to aretaic notions. On this view, the justification of legal decisions entirely
depends on the character traits of legal decision-makers. There are different forms which a
strong aretaic virtue theory might take. Two main versions may be distinguished: a ‘causal’
version and a ‘counterfactual’ version. They may be succinctly stated as follows:
Counterfactual version. A legal decision is justified iff it is a decision that a virtuous
legal decision-maker would have taken in like circumstances.
Causal version. A legal decision is justified iff it has been taken by a virtuous legal
decision-maker.
According to the counterfactual version, the justification of a legal decision is a
function of what an idealized, virtuous, legal decision-maker would have done if she had to
decide the case. If the decision is one which a virtuous legal decision-maker would not have
taken under the circumstances, then the decision is unjustified. The causal version sets up a
11
For an argument to the effect that it is desirable to seek an integration of an ethics of rules and an ethics of
virtue, see Louden (1997: 201). For a thorough examination of the possibilities of bringing Kant and Aristotle
together, see Sherman (1997).
7
more demanding standard for the justification of legal decisions: it is not enough for a legal
decision to be justified that it be a decision that a virtuous person might have taken in like
circumstances, but the decision itself has to be virtuously motivated. Thus, on this view, the
rightness of a legal decision crucially depends on its causal history. A decision is justified if
and only if it has its source in virtue. A legal decision that is viciously motivated, e.g., a
decision which is the product of bias, corruption, impartiality, etc. is unjustified, even if it
is the same decision that a virtuous legal decision-maker would have taken. For example,
consider a case of murder in which, in light of the evidence available, a fact-finder
possessing the epistemic virtues, such as impartiality, intellectual sobriety, the ability to
recognize salient facts, diligence, open-mindedness, etc. would have decided that the
defendant is guilty.12 Now, suppose that the fact-finder finds the defendant guilty, but he
reaches this verdict out of racial prejudice against the defendant. According to the causal
theory, the verdict would be unjustified. In contrast, the counterfactual approach would
hold that the verdict is justified, despite the fact that it was not virtuously motivated.
The causal version of a strong aretaic theory of legal justification is, to my mind,
untenable. There is a crucial difference between the reasons that support a decision and the
reasons that explain why a particular decision was taken that is missing in the casual
account. To be sure, an agent may do the right act for the wrong reasons. That he so acted
does not make the act wrong, but it prevents us from giving the agent any moral credit for
it. That is to say, we should distinguish between the evaluation of an act and the evaluation
of an agent for doing an act. So if a person does the right thing (e.g., she takes care of an
elderly uncle) for the wrong reason (e.g., out of a desire to inherit her uncle’s fortune), the
act itself is right, but the agent is not morally praiseworthy for doing it.
In law, a distinction between normative and explanatory reasons is crucial as well.13
Further, because of the institutional nature of legal decision-making, such a distinction is
even sharper. For while the fact that a right action was done for the wrong reasons seriously
detracts from its moral worth, that a right legal decision was taken for the wrong reasons
12
For an account of the traits of character that mark off virtuous behavior in the context of legal fact-finding,
see Amaya (2008).
13
See MacCormick (2009: 6-12).
8
does not in the least reduce its correctness. For instance, a legal decision to provide
compensation for physical injury caused by driving under the influence of alcohol might be
correct even if the decision itself was motivated by the judge’s disgust for whoever drinks
alcohol rather than by a careful assessment of the facts of the case and the applicable rules.
Of course, the judge who takes the right decision for the wrong reasons is not praiseworthy
for doing it. Indeed, a judge who takes a decision based on revulsion at the defendant
deserves criticism. But this does not imply in any way the incorrectness of the decision,
which might well be justified, in light of the evidence available and the principles
regulating compensation for physical injury.
This is not to say that it is irrelevant whether judges take their decisions for the right
reasons. To be sure, there is something amiss in a right legal decision which has been taken
for the wrong reasons. We expect legal decision-makers to be properly motivated, and it is
certainly desirable that the justifications they offer for their decisions are not merely a
rationalization aimed at making them publicly acceptable. But from this it does not follow
that the normative and the explanatory reasons for a legal decision are indistinguishable.
The rightness of a legal decision is a function of the former, but not of the latter. The causal
version, however, makes the justification of a legal decision (wrongly) depend on the
psychological process whereby such a decision was taken.14 Thus, this theory fails to
distinguish the conditions under which a legal decision is justified from the conditions
under which a legal decision-maker is justified in taking a decision.
Lawrence Solum seems to endorse a causal version of virtue jurisprudence.15 Solum
distinguishes between a ‘virtuous’ (or ‘just’) decision and a ‘correct’ (or ‘lawful’)
decision.16 According to Solum, whereas a virtuous decision is one made by a virtuous
judge acting from the judicial virtues, a correct decision is a decision that would
Cf. Duff (2003: 199). In his view, “the justice or correctness of a judicial decision is in part a matter of the
justice of the process by which it was reached.” Id. at 205.
14
15
See Solum (2003).
16
The virtuous and the just are made equivalent, but this cannot be right, as there might be just decisions
which aren’t virtuous. Judicial integrity, that is, fidelity to law, is also a virtue, and this might make it the case
that the virtuous decision turns out to be different from the decision which best satisfies the demands of
justice.
9
characteristically be made by a virtuous judge in the circumstances that are relevant to the
decision. Thus, it would seem that Solum holds that a legal decision could be justified (i.e.,
correct) even if it was made for the wrong reasons.17 However, he writes:
In cases in which the judge was not acting from virtue, but was acting from vicious
motives, such as corruption, wilful disregard of the law, or bias, then a discretionary
decision may be legally incorrect –even though the very same outcome would have
been acceptable if the decision had been made by a virtuous judge.18
Hence, according to Solum, in cases in which the law commits decision to the
discretion of the judge, the justification of a legal decision depends on the motives of the
legal decision-maker. Thus, in these cases there does not seem to be any relevant distinction
between the correct decision and the virtuous one: legal justification does not merely
demands deciding in accordance with virtue, but rather it requires deciding from virtue. It is
unclear whether Solum would be willing to extend this thesis beyond cases which involve
discretion. But given the (quite common) view according to which hard cases involve
discretion, the thesis can potentially hold in a significant number of cases (and, in any
event, in the most interesting cases). This thesis, as argued, cannot be right. We can
certainly criticize a judge who is corrupt, who shows a disregard for the law, and who is
biased towards one of the parties. But we need to allow for the possibility that he might
have taken a right decision in the case. If a judge who is honest, impartial, and faithful to
the law would have taken the very same decision, the vicious judge’s decision is correct,
even if such judge could hardly be given any credit for it.
In contrast, the counterfactual version holds, more plausibly, that accordance with
the requirements of virtue is enough for legal justification. This aretaic theory is very close
to views that tie justification to what would be rationally acceptable in ideal conditions,
which have been very popular in legal theory.19 A main problem with these theories is that
17
See Solum (2003: 183 n.66).
18
Id. 189.
Prominent examples include Perelman’s theory of the ideal audience, Habermas’ theory of ideal discourse,
or Smith’s theory of the ideal spectator.
19
10
they involve quite implausible idealizations. These theories abstract away from human
cognitive limitations and contexts and make justification an ideal that is far removed from
human possibilities. As a result, these theories are not well-suited to play a regulatory role
and, thus, to guide the legal practice in an effective way. An aretaic theory which explains
legal justification in terms of what a virtuous person might do has an important advantage
over these theories in that it posits a normative ideal –i.e., a virtuous legal decision-makerthat is, in principle, realizable by flesh and blood legal decision-makers. Thus, such a
theory is in a good position to serve as a regulatory standard and, ultimately, ameliorate the
legal practice. I turn now to examine some objections that may be raised against this aretaic
approach to legal justification.
IV. Some Objections against a Virtue Theory of Legal Justification
There are some objections that are likely to be raised against the proposal to explain legal
justification in terms of what a legal decision-maker might do. In this section, I shall
address three main objections which might be leveled against this proposal, namely, the
‘publicity objection,’ the ‘authority objection,’ and the ‘disagreement objection.’
(i)
The publicity objection
A basic constraint in a democratic system is that legal decisions ought to be backed
by reasons.20 It might be argued that a virtue approach to legal justification is at odds with
the basic requirement that judicial decisions be reasoned. If what the objector has in mind is
that a judge cannot justify her decision by appealing to her own virtue, then, this is
obviously correct.21 Indeed, it would be unacceptable for a judge to justify a decision on the
grounds that she is a virtuous judge. However, that reasons for a legal decision ought to be
publicly stated says nothing about what is that makes legal decisions justified. Justification,
20
See Pettit (2001: 168).
Duff has argued against Solum’s aretaic approach to adjudication on the grounds that it conflicts with the
way in which judicial decisions are justified. See Duff (2003: 206-7).
21
11
as a property of decisions, ought not to be confused with citing reasons. In other words, the
justificatory status of a legal decision needs to be distinguished from the activity of publicly
justifying the decision. Consider, for example, the case of a jury’s decision. While the jury
does not engage in the activity of justifying a belief about guilt, to be sure, at least some of
the decisions reached by the jury are justified. The importance of the distinction between
justification as a property of a decision and the activity of justifying a decision can also be
appreciated by considering poorly justified legal decisions. There are decisions which,
while correct, are poorly reasoned. That they are justified does not depend on their being
publicly defended on the basis of reasons. Thus, the requirement of publicity is a
requirement that is over and above the requirement of justification. The reasons for a legal
decision ought to be made public, but what makes them reasons for a decision is, precisely,
that a virtuous legal decision-maker would recognize them as such.
Another form which the objection from publicity might take appeals to a certain
intuitionist interpretation of the virtues according to which it is in the nature of a virtuous
person that he has a perceptual sensitivity that allows him to see or grasp what would be the
right thing to do, without needing to offer any further reason or justification for his
decision. In other words, virtuous legal decision-makers are those who have a direct insight
into the right which does not admit of discursive justification. But then -the objector might
argue- an aretaic approach to legal justification does not seem plausible, as judges are
expected –indeed, obliged- to give reasons for their decisions. So stated, the objection also
fails to undermine an aretaic theory of legal justification. For a virtue approach to legal
justification need not be committed to claiming that the perceptual sensitivity in which
virtue consists precludes the provision of reasons. On the contrary, the virtuous legal
decision-maker has a perceptual sensitivity which, precisely, enables him to discern the
reasons for his decision in the particular case and to provide the corresponding
justifications. This perceptual sensitivity, as it were, makes visible to the virtuous agent
what are the relevant reasons or justifications in the particular case, and hence, what is that,
in the case at hand, virtue requires.22
22
See Wallace (2006: 242). MacCormick has also argued against a conception of virtue as a capacity that is
at odds with the practice of giving reasons. He writes: “Practically wise people do not only issue delphic
12
To sum up, I have considered two possible ways in which one may press the
objection from publicity. On one reading, the objection says that since a legal decision
cannot be justified by a judge by pointing to her own judicial virtue, the justification of a
legal decision cannot be explained in aretaic terms. I have argued that this objection cannot
get off the ground once a distinction is made between a decision being justified and the
activity of publicly justifying a decision. On another reading, the objection says that, since
virtues are a kind of rational intuition, a virtue approach is incompatible with the
requirement that legal decisions be reasoned. However, I have argued that the perceptual
sensitivity of the virtuous legal decision-maker need not be construed as an insight which
does not admit of discursive justification, but rather as a capacity that enables the virtuous
judge to grasp the reasons or justifications in the particular case. Thus, none of these lines
of argument undermine the case for a strong aretaic theory of legal justification.
(ii)
The authority objection
It is a necessary condition for a legal decision to be justified that it be shown to be
grounded in the law. Reasons from authority ought to play a pivotal role in determining
how cases ought to be decided. The aretaic theory of legal justification could be objected on
the grounds that it does not give to legal sources their due in justification. In the aretaic
approach, justified legal decisions are those that might be taken by a virtuous judge. But the
virtuous’ reaction to the case might differ from the law’s response: what the law requires in
a particular case may not be what best accords with the requirements of virtue. Therefore, a
virtue approach to legal justification is incompatible with the authoritative nature of law.
The objection from authority, while important, does not succeed in undermining the
case for an aretaic theory to legal justification. For even though such a theory does not
explicitly establish as a condition of justification that legal decisions be grounded on legal
reasons, this requirement is implicitly built in the theory. Any plausible account of the
judicial virtues ought to include a virtue of ‘integrity,’ namely, a disposition to assess the
assurances as to what is right, they explain why it is. They show the reasons that seem most relevant and why
one is valued for more in a given context than another, and so on…They are not infallible oracles but valuable
guides.” See MacCormick (2009: 17).
13
merits of the case from an ‘internal point of view,’ that is, from the point of view of
someone who endorses the rules that structure legal deliberation and is disposed to guide
his conduct in accordance to them.23 Thus, a judge who has the virtue of integrity is
committed to deciding a case in a way that shows due respect to the rule of law. In short, a
good account of the judicial virtues will ensure that legal reasons play the role that they
ought to play in a theory of legal justification. Provided that we have a substantial account
of the virtues associated with the role of the various legal decision-makers, an aretaic
theory of legal justification will guarantee that the appropriate connection obtains between
legally justified decisions and the established law. Thus, a strong version of a virtue theory
of justification is consistent with the authoritative character of law.
(iii)
The disagreement objection
It might be argued that an aretaic conception of legal justification is ill-suited as a
normative model in the conditions of disagreement that characterize modern societies.
Virtue conceptions of normativity may be plausible in societies that are remarkably
homogeneous, as it was the case of ancient Greece. However, in societies, such as ours, in
which there is a plurality of inconsistent views on moral, religious, and political issues,
virtue theory fails to provide determinate guidance.24 Given that there are competing
conceptions about political morality, which the law is likely to reflect, a virtue approach to
adjudication cannot enable us to determine what the right decision is in the particular case.
For there is no shared ideal of what virtue requires upon which judgments about what ought
to be done could be grounded.
Two lines of response to this objection may be advanced. First, this objection is
based on a misunderstanding of the relevance of disagreement to the rational status of legal
judgments. That there is disagreement about what the best legal judgment is in a particular
case does not deprive legal decision-making of a rational foundation. Only if disagreement
23
Hart (1994: 88-91).
24
See Wallace (2006: 258-9). See, also, Louden (1997: 213).
14
is all-encompassing, would it render a normative model incapable of guiding action.25 But
in complex legal systems cases in which each side has an equally strong legal argument are
not so common as to make the identification of justified decisions by appeal to the
normative ideal of a virtuous judge (who possesses, among others, the virtue of integrity)
impossible.26 Secondly, the objection from disagreement relies on a mistaken view about
the commitments of virtue theory. A virtue theory of adjudication is not committed to the
claim that there is only one right answer.27 When stating the main tenet of a virtue theory to
legal justification, I have claimed that a right decision is what a virtuous decision-maker
would take, not that what the virtuous decision-maker would take. Thus, a virtue theory
allows for the possibility that two virtuous judges faced with the same decision in the same
circumstances may disagree. 28 In short, a virtue approach to legal adjudication is perfectly
applicable in conditions of value pluralism.
Hence, while the foregoing objections need to be taken seriously, they are not
decisive against a strong virtue approach to legal justification. This still does not vindicate
the case for such a theory as the reluctance to accept an account of legal justification in
purely aretaic terms might come from a rather different front. Ultimately, I would argue,
the main obstacle to this aretaic conception of justification may stem from a desire to
provide an external validation of legal decisions, that is, a validation external to the legal
practice, even to the practice of the virtuous. Perhaps, the main reason for rejecting an
aretaic approach to legal justification is an attachment to a strong version of objectivism. In
this view, a legal decision is objectively justified if it is supported by reasons the adequacy
of which is independent of any beliefs we might have. But there seem to be no such
reasons: the notion of a reason for a decision which no virtuous decision-maker would
25
See Wallace (2006: 259).
26
That in complex legal systems it is unlikely that one answer does not provide a better fit than another has
been argued by Dworkin. See Dworkin (1977: 75-76, 83-84).
27
That virtue theory allows for the possibility that different virtuous agents faced with the same decision may
act differently has been argued by Hursthouse. See Hursthouse (1999: 68-71).
28
Solum argues that different virtuous judges could reach different decisions in the same case. See Solum
(2003: 187).
15
recognize as such is hardly a coherent one.29 Thus, if one rejects such an uncompromisingly
objectivist account of justification, there does not seem to be any reason which militates
against an aretaic account of legal justification. Furthermore, an aretaic theory of legal
justification has some interesting implications about the nature and scope of reason in law,
which I turn now to examine.
V. Virtue and Reason in Law
In the previous sections, I have argued for a virtue approach to legal justification according
to which a legal decision is justified if and only if a legal decision-maker would have taken
it in like circumstances. This conception of justification has important implications for
questions concerning the role of reason in law. As stated above, contemporary accounts of
adjudication may be divided into two main camps: normativism and instrumentalism.
While normativism explains legal justification primarily in terms of rule-application,
instrumentalism gives to consequences, rather than rules, a central role in a theory of legal
justification.
Normativism and instrumentalism are grounded on different conceptions of
practical reason. Normativists assume a Kantian view according to which rational action is
rule-governed, that is to say, it is action done in accordance with rational norms and
29
Consider the following case. Let us think of an exemplar judge who, acting virtuously, decides that in case
C, decision D should be taken. What else -one might ask- could it be added to D so that it is justified? It
would be odd to say that for D to be justified it has to be a decision that a virtuous judge might have taken and
a decision that is backed up by any of the reasons that obtain in the particular case. The judge, if virtuous,
would be able to determine the salient facts, the relevant reasons, and judge accordingly. Thus, it goes without
saying that the decisions taken by a virtuous judge would be properly justified on the relevant facts and legal
reasons. This does not mean, however, that these facts and legal reasons provide the justifying grounds for the
judgment independently of whether a virtuous judge would recognize them as such. Consider an analogy with
a wine contest. Suppose that the wine experts determine that, in light of characteristics X and Y, a certain
wine is the best one of those in competition. Now, the relevance of these characteristics to assessing the
goodness of wine depends on the judgments of the experts. If someone came along and said that another wine
is better by virtue of having characteristic Z, but Z were a characteristic that no wine expert would recognize
as constitutive of the goodness of a wine, we would dismiss his claim right away (and maybe kept wondering
what he might have intended to say by claiming that Z, despite it being a characteristic that no expert could
recognize, should determine the judgment as to which wine is best). Thus, what qualifies as good reasons is
relative to what a virtuous person would recognize as such. Distinguishing the ‘real’ reasons for a decision
from what a virtuous judge would take as such is as non-sense as distinguishing characteristics of a good wine
from the characteristics which a wine taster would recognize as constitutive of the goodness of a wine.
16
appropriately motivated by them.30 In contrast, instrumentalists rely on a Humean
conception of practical reason that conceives rational action instrumentally, that is to say,
as action that has an appropriate causal link to some given ends.31 This has significant
consequences for the way in which legal reasoning is conceived: whereas on a Kantian
approach, legal reasoning primarily consists of applying principles or rules, in a Humean
view, legal reasoning is of an instrumentalist kind, that is to say, it is a type of means-ends
reasoning. As opposed to both normativism and instrumentalism, a virtue approach to legal
justification is grounded on an Aristotelian conception of practical reason. To develop an
Aristotelian approach to legal reasoning is beyond the scope of this paper, but I would like
to suggest some distinctive features of such an approach.32
First, according to an Aristotelian conception of practical reasoning, practical
reasoning is not only an instrumentalist kind of reasoning, but deliberation is also of ends.
Ends are often too vague to serve as starting points for means-ends reasoning. Thus,
practical reasoning must consist at least partly in specifying an agent’s ends and norms.33
Another reason for engaging in deliberation about ends concerns the possibility of value
conflict: many of our ends come into conflict and we may remove the conflict by
specifying them.34 Hence, in the Aristotelian view, deliberation is a search for the best
specification of ends.35 Such specification provides, first, the starting point of
instrumentalist reasoning and, second, a way to proceed in the face of conflict. This
conception of practical reasoning accords a broader scope to reason in law than
instrumentalist conceptions which take ends and norms as fix points which constrain the
space of deliberation. From an Aristotelian point of view, reason in law does not merely
play a role in choosing means to ends, but also in deliberating about the ends themselves
and what specifications of law’s ends are best.
30
See Audi (1989: 60-80).
31
See Audi (1989: 39-60).
32
For a development of an Aristotelian theory of legal reasoning, see Amaya (forthcoming) and Michelon, in
this volume.
33
For this interpretation of Aristotle’s views on practical reasoning, see Wiggins (2001).
34
See Richardson (1994).
35
Wiggins (2001: 287).
17
Second, according to the Aristotelian approach to practical reasoning, excellence in
deliberation (i.e., phronesis or practical wisdom) cannot be captured in terms of a set of
general principles or rules, capable of being formulated in advance to the circumstances of
action.36 In other words, the practical reasoning of the virtuous agent is not susceptible of
‘codification.’37 Thus, the Aristotelian conception rejects the view according to which
reasoning about what to do is a matter of applying general principles and following a set of
procedures. This rule-based approach underwrites what is one of the most influential
models of legal reasoning, namely, the balancing model. On this model, legal reasoning
consists first and foremost in the application of legal rules and principles to the particular
case. When –as is often the case- conflicting norms bear on a particular case, one should
weigh and balance the values involved so as to adjudicate the conflict.38 The problems of
this model of legal reasoning are well-known.39 Despite efforts to provide guidance as to
how one may rationally balance the values in conflict, this model must either assume value
commensurability –which is a highly controversial assumption- or fall back in intuition,
unduly restricting the scope of reason in law. Insofar as an Aristotelian approach does not
take rule-following to be the central notion in an account of legal decision-making, it
avoids the problems that face principle-dependent approaches to legal reasoning.
Last, according to the Aristotelian picture of practical reason, practical reasoning
critically involves a refined capacity to recognize the salient features of a situation which
provide reasons for action.40 On this view, judgments about what to do on a particular
situation are the deliverances of a perceptual sensitivity that allows one to detect the
requirements that situations impose on one’s behavior. Practical reason is viewed as a form
of “connoisseurship,” that is to say, as an “ability to appreciate heterogeneous, case-specific
reasons for choice or preference by means of informed judgment or perception rather than
36
Wallace (2006: 250).
37
See McDowell (1998: 57-8).
38
A most prominent example of this approach is Alexy’s theory. See Alexy (2003).
39
See MacCormick (2009: 36-38).
40
This Aristotelian account of practical reason has been most forcefully defended and developed by
McDowell, see McDowell (1998). For an extremely instructive discussion of McDowell’s views, see Wallace
(2006: 242-262).
18
the application of general principles or procedures.”41 In this view, legal reasoning involves
primarily an ability to apprehend the case-specific reasons for action by means of judgment
or perception. This approach to legal reasoning does not need to amount to a kind of
intuitionism, for, as argued, this sensitivity is not an ineffable capacity but rather it is best
understood as a capacity to discern the reasons which support the decision that virtue
requires in the particular case. But, crucially, these reasons are not grasped by appeal to a
set of principles and rules, but they are inextricably linked to the perception of the
particulars of the case.
Hence, a virtue-based theory of legal justification is of a piece with an approach to
legal reasoning that differs in some important aspects from views that place either rules or
consequences at the core of a theory of legal reasoning.
VI. Conclusions
Virtues, I have argued, are central in a theory of legal justification. This paper has provided
an aretaic approach to legal justification according to which a legal decision is justified if it
is a decision that a virtuous judge similarly circumstanced might have taken. Unlike current
approaches to legal justification, which assume either a rule-based or a consequentialist
conception of practical reason, this approach to legal justification is grounded on an
Aristotelian conception of practical reason. From an Aristotelian perspective, legal
reasoning is of ends; it is not principle-based, and it is best understood on the basis of a
‘connoisseruship’ model, which gives a crucial role to judgment and perception in legal
decision-making. This conception of legal reasoning significantly departs from both
instrumentalist approaches to legal reasoning and normativist views of legal reasoning.
Thus, the study of the notion of virtue and its relevance to justification provides a
distinctive perspective to our understanding of legal reasoning.
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21