Private law, public consequences, and virtue jurisprudence

University of Pittsburgh Law Review

Volumn 71, Issue 2, 2009, Pages 279-312

  Cimino, Chapin F ^a,b  

^a DREXEL UNIVERSITY   (United States)

^b UNIVERSITY OF CHICAGO   (United States)

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EID: 77952685785     PISSN: 00419915     EISSN: None     Source Type: Journal    
DOI: 10.5195/lawreview.2009.137     Document Type: Review

References (160)

1. COLIN FARRELLY & LAWRENCE B. SOLUM, An Introduction to Aretaic Theories of Law, in VIRTUE JURISPRUDENCE 2-3 (Colin Farrelly & Lawrence B. Solum eds., 2008) (emphasis added).
2. Id.
3. Id at 2.
4. Lawrence B. Solum, The Aretaic Turn in Constitutional Theory, 70 BROOK. L. REV. 475, 498 (2005) ("The move from virtue ethics to virtue jurisprudence is simply the translation of the aretaic turn in moral theory to the context of lawmaking and adjudication. For example, virtue jurisprudence postulates that the proper aim of legislation is the promotion of human flourishing through creation of the conditions for the development of human excellence.").
5. Probably the most well-known writer in law and legal philosophy to take virtue seriously is Martha Nussbaum. See, e.g., Martha C Nussbaum, Non-Relative Virtues: An Aristotelian Approach, XIII MIDWEST STUD. PHIL. 32 (1988). Further, the most well-known writer in the specific area of virtue and contract law is probably James Gordley.
6. See, e.g., JAMES GORDLEY, THE PHILOSOPHICAL ORIGINS OF MODERN CONTRACT DOCTRINE (1991).
7. By "public law" I mean those subjects of law that concern the relationship of state to individual, usually thought of as criminal law, constitutional law, administrative law, and international law, and by "private law" I mean those subjects of law that govern the relationships between private actors, such as contracts, corporate law, most property law, etc. See, e.g., BLACK'S LAW DICTIONARY (abridged 6th ed. 1991).
8. As used in this essay, I do not mean to equate or conflate the terms "economics" or "law and economics," each of which is based on the social sciences, with the moral philosophies ofconsequentialism or utilitarisism. However, I do mean to capture a link between also suggested by Heidi Li Feldman, infra note 89, at 51 : that law and economics (as probably the most well-known strand of "neoclassical welfare economics"), is the "public policy counterpart" to certain consequentialist-based moral philosophies, including utilitarianism.
9. FARRELLY & SOLUM, supra note 1, at 3 (noting that Anscombe's work highlighted the seemingly irresolvable competition between the two leading normative philosophical theories, deontology and consequentialism);
10. see also Roger Crisp, Modern Moral Philosophy and the Virtues, in How SHOULD ONE LIVE? 1-2 (Roger Crisp ed., 1996) (noting that Anscombe's 1958 essay charged moral philosophers to put aside rights and consequentialism until one could better explain the tenets of the two principles-"pleasure" and "intention"-and suggesting that virtue may be the key to such explanation).
11. Thanks to Dennis Patterson for emphasizing this parallel.
12. When I mean virtue theory specifically as applied to law, I will try to use the phrase "virtue jurisprudence." But when I am describing virtue theory generally, I will use "aretaic theory" and "virtue theory" interchangeably, and sometimes just "virtue" for short Virtue theory has a specific meaning: Virtue theory is the area of enquiry concerned with the virtues in general; virtue ethics is narrower and prescriptive, and consists primarily in the advocacy of the virtues. Plato and Aristotle engaged in both simultaneously, but many modern philosophers have written on the virtues from positions of neutrality or even hostility. Crisp, supra note 8, at 5.
13. Rosalind Hursthouse, Normative Virtue Ethics, in How SHOULD ONE LIVE?, supra note 8, at 23.
14. Id.
15. There are numerous normative approaches to virtue theory. See, e.g., ALASDAIR MACINTYRE, AFTER VIRTUE (1981) (virtue theory is justified because it helps citizens adhere to duty);
16. cf. Julia Driver, The Virtues and Human Nature, in How SHOULD ONE LIVE?, supra note 8, at 116 (noting "the consequentialist basis for our judgments of virtue."). By contrast to either of these approaches, neeAristotelian virtue theory derives its justification from virtue as an end in and of itself: virtue promotes human excellence, and human excellence is an end of itself, not tethered either to the concepts of duty or welfare.
17. ARISTOTLE, SELECTIONS bk. 1.ch. 13,1102a5, at 363 (Terrence Irwin & Gail Fine trans., 1995) (translating ARISTOTLE, NICHOMACHEAN ETHICS).
18. Id. bk. 2, ch. 1, 1103a15-34, at 366.
19. PETER BERKOWTTZ, VIRTUE AND THE MAKING OF MODERN LIBERALISM 9-10 (1999).
20. Lawrence B. Solum, A Virtue-Centered Account of Equity and the Rule of Law, in VIRTUE JURISPRUDENCE, supra note 1, at 157 ("Phronesis is the ability to respond appropriately to the particular situation.").
21. M at 157-158 (discussing phronesis and judging).
22. Chapin F. Cimino, Virtue and Contract aw, 88 OR. L. REV. (forthcoming 2010).
23. See also ARISTOTLE, supra note 14, bk. 1.ch. 13, 1140a24-b21.
24. Id., bk. 2, eh. 5, 1106a12-14, at 371.
25. Id., bk. 2, eh. 6, 1106a17-18, at 371-372
26. Defending virtue ethics from the charge that it does not and cannot provide any guidance as to right action, as opposed to consequentialism and deontology, for example, is the thesis of the Hursthouse essay, Normative Virtue Ethics. See text accompanying note 34, infra. This charge is raised in support of the claim that virtue ethics is in fact not a normative rival to either consequentialism or deontology, which Hursthouse most assuredly believes it is.
27. The origin of the baseline is this: "[i]n everything continuous and divisible we can take more, less and equal, and each of them either in the object itself or relative to us; and the equal is some intermediate between excess and deficiency." ARISTOTLE, supra note 14, bk. 2, ch. 6,1106a27-29, at 372. The notion of the "equal" becomes the baseline: "[the] scientific expert avoids excess and deficiency and seeks and chooses what is intermediate-but intermediate relative to us, not in the object"
28. Id., NE bk. II, chap. 6, 1106b6-8. In other words, "[v]irtue, then, is a mean, insofar as it aims at what is intermediate."
29. Id., bk.2, ch.6, 1106b6-8, at 372.
30. ARISTOTLE: THE NIOOMACHEAN ETHICS 191-193 (E. Capps, T.E. Page & W.H.D. Rouse eds., H. Rackham trans., 1926).
31. "The virtues arise in us neither by nature nor contrary to nature; we are naturally receptive of them, but we are completed through habit." T.H. Irwin, The Virtues: Theory and Common Sense in Greek Philosophy, in How SHOULD ONE LIVE?, supra note 8, at 40-41 (quoting NlCHOMACHEAN ETHICS 1103a23-6).
32. Aristotle believed that the state should educate its citizens in the virtues. The state would do this in part to make up for the gaps in the family's ability to do so and in part to equip citizens to resist the inclination toward baseness that all humans are subject to. As such, virtue takes on a political cast-educating in the virtues is part of what the state should do for its citizens. See, e.g., Robert F. George, The Central Tradition, in VIRTUE JURISPRUDENCE, supra note 1, at 26 ("Making men moral, Aristotle supposed, is a-if not the-central purpose of any genuine political community.").
33. Irwin, supra note 25, at 38-39.
34. For more on how virtue is act-centered, see Hursthouse, supra note 11, at 19-36 (defending against the charge that because virtue is about how to "be" it does not provide guidance for the question of how to "act").
35. Nussbaum, supra note 5, at 35 (emphasis in original).
36. Id. at 36.
37. Id. at 35.
38. M at 36. Nussbaum observes that Aristotle identified ten spheres of experience. They, and the corresponding virtue of "appropriate" response, are: fear of death (courage); bodily appetites and their pleasures (moderation); distribution of limited resources (justice); management of one's personal property where others are concerned (generosity); management of one's personal property where hospitality is concerned (expansive hospitality); attitudes and actions toward one's own worth (greatness of soul); attitudes toward slights and damages (mildness of temper); 'association and living together and the fellowship of words and actions' (truthfulness); truthfulness in speech (easy grace, as contrasted with coarseness, rudeness, insensitivity); social association of a playful kind (a kind of friendliness, contrasted with irritability and grumpiness); attitude toward the good and ill fortune of others (proper judgment, contrasted with enviousness, spitefulness, etc.); intellectual life (the various intellectual virtues, such as perceptiveness, knowledge, etc.); planning one's life and conduct (practical wisdom).
39. Id. at 35-36 (quotation in original).
40. Id. at 38-39.
41. Specifically, a first principle of natural law theory on the question of true and right standards of conduct is "no ought from is," meaning that law is not justifiable until it is justified (by "some higher ought-premise"). John Finnis, Natural Law: The Classical Tradition, in OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW 3,4 (Jules Coleman & Scott Shapiro ed., 2002).
42. For a related idea, see also Solum, Natural Justice: An Aretaic Account of the Virtue of Lawfulness, in VIRTUE JURISPRUDENCE, supra note 1, at 188 ("At the center of [the natural law] tradition... is the idea that unjust laws are not true laws-lex injusta non est lex") (italics in original).
43. Bernard Yack, Natural Right and Aristotle's Understanding of Justice, 18 POL. THEORY 216, 232 (1990).
44. Id. at 230. Moreover, natural law represents "the articulation of some basic human goods or needs that any system of positive law must respect promote, or in any case protect."
45. Russell Hittinger, Natural Law and Virtue: Theories at Cross-Purposes, in NATURAL LAW THEORY 42 (Robert George ed., Oxford 1992). By contrast Aristotelian natural right does not.
46. Yack, supra note 34, at 231 ("Aristotle does not appeal to nature as a final standard against which to measure the justice of our laws and political judgments....").
47. STAN VAN HOOFT, UNDERSTANDING VIRTUE ETHICS 17 (2006) ("[W]hereas duty ethics conceives of moral motivation or practical necessity as obedience to rules, virtue ethics conceives of moral motivation or practical necessity as responsiveness to values. An honest person values truth and if she finds herself in a situation where she might tell the truth or tell a lie to advantage herself, she will respond to the value that the truth holds for her.").
48. FARRELLY & SOLUM, supra note 1, at 2.
49. Id. at 6.
50. For example, one wonders: Should new laws be passed that incorporate virtuous rules or standards? Are rules inherently too determinate to incorporate indeterminate notions like virtue? Should virtue then inform broad, open-ended standards? Should future lawmaking, either by legislation or adjudication, be guided by or based on virtue? If so, how? Is the goal of law ultimately to encourage virtuous conduct? If so, would virtue over time eventually reduce the need for law-is virtue ultimately libertarian? If so, should law encourage virtuous conduct of only legal decision-makers, and/or ordinary citizens? How? Can legal institutions be structured virtuously? Or, should legal institutions be structured so they promote virtuous conduct of the people who utilize them? If so, how?
51. George, supra note 26, at 24-50.
52. BERKOWITZ supra note 16, at 11 (1999).
53. George, supra note 26, at 26.
54. Id at 29.
55. Id. at 30 and n.16 (quoting NICOMACHEAN ETHICS x. 9.1180a).
56. Id. at 32-33.
57. Id. (writing that Aquinas's peculiarly Christian perspective "of course, never would have occurred to Aristotle.").
58. Id. at 38-42.
59. Id. at 47.
60. Solum, supra note 33, at 174 (noting the philosophical debate between two conceptions: justice as fairness, or justice as lawfulness).
61. Id. at 167.
62. Id.
63. Id. at 190. Phronimoi derives from the concept of phronesis, or practical wisdom: "phronesis is the ability to respond appropriately to a particular situation; aphronimos is able to respond appropriately because he or she has the experience to discern what is morally relevant about the situation."
64. Id. at 157.
65. Id.
66. Id. to aretaic theory, "just" positive laws (and so consistent with natural law) are those that are either "congruent" with social norms, or are "supported" by social norms. As unjust social norms and legal rules are not true nomoi, and could not be accepted by phronimoi, unjust norms and laws are not "true law" in the natural law conception of justice.
67. Id. at 188-190
68. Id. at 182-183
69. Id. at 183.
70. See id. at 186 ("Justice does not need to do all the work in an aretaic legal theory. The end of law is not justice: it is human flourishing...Of course, justice is one of the virtues. So the law should aim at lawfulness....").
71. See id. at 190.
72. See supra Part La.
73. Suzanna Sherry, Judges of Character, in VIRTUE JURISPRUDENCE, supra note 1, at 89 and n.3
74. (citing Anthony Kronman, Practical Wisdom and Professional Character, in PHILOSOPHY OF LAW 203, 208 (Jules Coleman & Ellen Frankel Paul eds., 1987)).
75. Drawing on Aristotelian conception of virtue as middle ground between extremes. See text accompanying notes 17-19.
76. Sherry, supra note 61, at 91.
77. Id. at 92.
78. Dred Scott v. Sanford, 60 U.S. 393(1857).
79. Bush v. Gore, 531 U.S. 98 (2000).
80. Sherry, supra note 61, at 93.
81. Id. at 91.
82. Id.
83. See Korematsu v. United States, 323 U.S. 214 (1944) (demonstrating inappropriate deference to the legislature).
84. See Poe v.Ullman, 367U.S.497(1961)(demonstrating inappropriate refusal to hear a challenge on justiciability grounds). A third example was the Court's refusal to grant certiorari in any case presenting the merits of educational affirmative action, which is now no longer so.
85. Sherry, supra note 61, at 88, 98-99.
86. Lawrence B. Solum, A Virtue-Centered Account of Equity and the Rule of Law, in VIRTUE JURISPRUDENCE, supra note 1, at 142, 157.
87. Id. at 157-60. Solum differentiates his notion of judging with phronimos from an approach that may sound similar: that of Dworkin's ideal judge, Hercules. To Solum, under a virtue-oriented approach, judicial choices are particularized to each case, while Hercules consults grand ideals for each choice. Solum argues that when judging from (with?) phronimos, grand theory building may be appropriate at times, and so a virtuous judge may at times reason as Hercules would, but then again a virtuous judge may be required to depart from "general rules and principles on the basis of their legal and moral perceptions of the facts of a particular case."
88. Rosalind Hursthouse, Two Ways of Doing the Right Thing, in VIRTUE JURISPRUDENCE, supra note 1, at 236, 240-242
89. Id. at 244-247
90. Id. at 246, 248.
91. Colin Farrelly, Civic Liberalism and the "Dialogical Model" of Judicial Review, in VIRTUE JURISPRUDENCE, supra note l, at 107,109.
92. Id.
93. Id.
94. Id. at 111 (noting that unlike George, his conception is non-perfectionist).
95. Id. at 110 (emphasis in original).
96. Id. at 111. Farrelly admits that the virtues of toleration, civility and fairness are "elusive and indeterminate," in part given their "multi-track" nature. Farrelly notes: "one cannot completely describe, in the abstract, what the demands of these virtues are. It is only when we consider the context of a particular situation that one can begin to give some concrete life to these elusive virtues."
97. Id. at 125. The example he uses is how to handle, after 9/11, competing demands for heightened governmental protection against terrorism vs. demands for protections of individual liberties.
98. Id at 123.
99. Id. at 112.
100. Id. at 117.
101. Id. at 119.
102. Id. at 129-136 (describing the origins of "dialogical judicial review" within the Canadian Charter).
103. Id. at 120.
104. Id. at 134.
105. See generally Heidi Li Feldman, Prudence, Benevolence and Negligence: Virtue Ethics and Tort Law, in VIRTUE JURISPRUDENCE, supra note 1, at 51.
106. Id.
107. Id. at 52.
108. Id. at 51.
109. Id. at 52.
110. Kyron Huigens, On Aristotelian Criminal Law: A Reply to Duff, in VIRTUE JURISPRUDENCE, supra note 1, at 215.
111. Id. at 222.
112. Id. at 223-224
113. Huigens asserts In a virtue ethics theory of punishments, responsibility for one's character and for the quality of one's practical reasoning-including one's deliberation on ends-is portrayed as essential to just punishment People do not commit crimes because they fail to fit means to ends. They commit crimes because their ends are wrong. The failures of reasoning that lead people to commit crimes are not instrumental errors confined to the immediate circumstances of the offense. Crimes are manifestations of callousness, persistent immaturity, narcissism, greed, lack of empathy, impulsiveness, uncontrolled anger, and so on-failures in the rational constructions of an agent's motivations, including the standing motivations that make up a character. We hold people responsible for failures of character in ordinary morality, and when failures of this kinds result in a violation of a criminal prohibition, we hold people responsible by punishing them.
114. Id. at 224-225
115. Antony Duff, Virtue, Vice, and Criminal Liability, in VIRTUE JURISPRUDENCE, supra note 1, at 206-208
116. Id. at 203-206
117. Id. at 205.
118. Id.
119. See generally Cimino, supra note 19.
120. Id. Another is the reasonableness standard in contract law. As I have written elsewhere, this doctrinal space could be another where virtue could give content to law.
121. Feldman, supra note 89.
122. Distributive justice allocates social and political benefits and burdens between citizens, while corrective justice rights wrongs between private parties.
123. Todd D. Rakoff, Too Many Theories, 94 MICH. L. REV. 1799 (1996)
124. (reviewing MICHAEL J. TREBUJCOCK, THE LIMITS OF FREEDOM OF CONTRACT (Harvard University Press 1993)) ("We thus see in contract scholarship what we see in legal scholarship generally these days-a proliferation of theories.").
125. Id. at 1799 ("Contract law aspires both to state the law governing social interactions-buying, hiring, leasing, and licensing-and to depict an ideal societ - the market free and just.").
126. Daniel Markovits, Contact and Collaboration, 113 YALE L.J. 1417,419-420 (2004).
127. Anthony Kronman, Contract Law and Distributive Justice, 89 YALE L.J. 472, 473 (1980).
128. Morris R. Cohen, The Basis of Contract, 46 HARV. L. REV. 553, 562 (1933).
129. Markovits, supra note 108, at 1419-1420
130. See, e.g., id. at 1419.
131. TREBILCOCK, supra note 106, at 141-142 ("Macneil's approach, no matter how accurately it describes reality, does not yield determinate legal principles for governing the allocation of unassigned risks ....").
132. Markovits, supra note 108, at 1419.
133. Id. at 1420 (advancing the ideal that a contact creates between the parties a "respectful community").
134. Robin Bradley Kar, Contractualism about Contract Law (Loyola Legal Studies Working Paper No. 2007-29,2007), available at http://ssrn.com/abstract= 993809.
135. Id.
136. Cohen, supra note 110, at 586 ("From this point of view the law of contract may be viewed as a subsidiary branch of public law, as a body of rules according to which the sovereign power of the state will be exercised as between the parties to a more or less voluntary transaction.").
137. See, e.g., Kronman, supra note 109, at 474 (asserting that the "non-distributive conception of contract law cannot be supported on either liberal or libertarian grounds, and defend[ing] the view that rules of contract law should be used to implement distributional goals whenever alternative ways of doing so are likely to be more costly or intrusive.").
138. Id. at 499.
139. Moreover, one could also say that like any unifying theory, contract theory is inherently political. Contract theory asks, why and when do we enforce contracts? As with any theory, different theories of contract have different political foundations and consequences. For example, the will theory of contract, where it is said that courts enforce contracts because, and only to the extent that, contracts are the product of each party's will, is rooted in the same Enlightenment political philosophy valuing personal freedom which informed our Jeffersonian Bill of Rights. And as theory informs doctrine, the rules themselves take on a political cast. This is observable even at the most meta-level of contact doctrine, tracing the evolution of the common law from pre-classical contract to the First Restatement (individualism and will theory), to the Second Restatement and the U.C.C. (both more objective, more reliant on community standards and judgments about "reasonableness").
140. FARRELLY & SOLUM, supra note 1, at 109.
141. Posting of The Editors to THE NEW YORK TIMES Room for Debate Blog, http://roomfordebate .blogs.nytimes.com/2009/03/17/when-bonus-contracts-can-be- broken/ (Mar. 17, 2009, 18:25 EST) [hereinafter Posting of The Editors].
142. Posting of Randy Cohen to THE NEW YORK TIMES Moral of the Story Blog, http://ethicistblogs .nytimes.com/2009/04/21/thy-neighbors-mortgage/ (Apr. 21, 2009, 7:00 EST).
143. Kar, supra note 116, at 103 (observing that, as compared to its deontological rivals, economic theories of contract have proved "particularly robust").
144. Posting of The Editors, supra note 123.
145. See, e.g., The New York Times Dealbook, Geitner Urges Bank Fees to Recoup A.I.G. Bonuses,
146. Feb. 24, 2010 (available online at http://dealbook.blogs.nytimes.com/ 2010/02/03/geitnner-urges-bank-fees-to-recoup-aig-bonuses/?scp=2).
147. Posting of Tom Baker to THE NEW YORK TIMES Room for Debate Blog, http://roomfordebate.blogs.nytimes.com/2009/03/17/when-bonus-contracts-can-be- broken/ (Mar. 17, 2009, 18:25 EST) ("Contracts get repudiated, renegotiated, modified, delayed, worked out, managed-pick your euphemism-all the time. A. I. G. knows this.").
148. Posting of Charles Fried to THE NEW YORK TIMES Room for Debate Blog, http://roomfordebate .blogs.nytimes.com/2009/03/17/when-bonus-contracts-can-be- broken/(Mar. 17,2009,18:25 EST).
149. Posting of Frank Snyder to THE NEW YORK TIMES Room for Debate Blog, http://roomfordebate .blogs.nytimes.com/2009/03/17/when-bonus-contracts-can-be- broken/ (Mar. 17,2009,18:25 EST).
150. Posting of James P. Tuthill to THE NEW YORK TIMES Room for Debate Blog, http://roomfordebate.blogs.nytimes.com/2009/03/17/when-bonus-ccatracts-can-be- broken/ (Mar. 17,2009,18:25 EST).
151. Posting of Glenn Greenwald to THE NEW YORK TIMES Room for Debate Blog, http://roomfor debate.blogs.nytimes.com/2009/03/17/when-bonus-contracts-can-be- broken/(Mar. 17,2009,18:25 EST).
152. Cimino, supra note 19. Virtue theory requires equal consideration of both the means and ends of any particular problem. The two dominant normative theories, by contrast each privilege one over the other deontology privileges the means over the ends, and consequentialism privileges the ends over the means. As I have written elsewhere, virtue analysis is symbiotic: its reasoning embraces both means and ends fully and equally, and so virtue jurisprudence does not suffer from "blindspots" as do both law and economics and rights-based theories.
153. Andrew Ross Sorkin, The Case For Paying Out Bonuses at A. I. G., N.Y. TIMES, Mar. 17, 2009, at B1.
154. Fried, supra note 129.
155. U.S. DEP'T OF THE TREASURY, MAKING HOME AFFORDABLE: UPDATED DETAILED PROGRAM DESCRIPTION (2009), http://www.treas.gov/press/releases/rerjorts/ guidelmes-summary.pdf.
156. U.S. DEP'T OF THE TREASURY, supra note 136, at 7 (describing new requirement that "all financial institutions receiving Financial Stability Plan financial assistance going forward" to "implement loan modification plans consistent with Treasury Guidelines." The goal of the mandatory modification program is to prevent foreclosures from happening in the first place, and is to apply first to loans issues by Fannie Mae and Freddie Mac, and then to be implemented "across the mortgage market.").
157. Cohen, supra note 124.
158. U.S. DEP'T OF THE TREASURY, supra note 136, at 1 ("The deep contraction in the economy and in the housing market has created devastating consequences for homeowners and communities throughout the country. . . The present crisis is real, but temporary. As home prices fall, demand for housing will increase, and conditions will ultimately find a new balance. Yet in the absence of decisive action, we risk an intensifying spiral in which lenders foreclose, pushing areas home prices still lower, reducing the value of household savings and making it harder for all families to refinance, to some studies, foreclosure on a home has been found to reduce the prices of nearby homes by as much as 9%.").
159. U.S.DEP'TOFTHETREASURY. supra note 136, at 3-4.
160. The program materials state that the goal is to reconcile these interests by "bring[ing] together lenders, investors, servicers, borrowers, and the government, so that all stakeholders share in the cost of ensuring that responsible homeowners can afford their monthly mortgage payments-helping to reach up to 3 to 4 million at-risk borrowers in all segments of the mortgage market reducing foreclosures, and helping to avoid further downward pressures on overall home prices." Id. at 3 (emphasis in original).