Wednesday, February 23, 2005
University of San Diego law professor (and legal-theory blogger) will present a paper, "Virtue Jurisprudence: An Aretaic Theory of Law" at the Notre Dame Law School's faculty-colloquium series on Wednesday, March 2. Here's the abstract for the paper:
Contemporary legal theory in the United States has been dominated by the realist paradigm. The extreme version of realism is captured by the slogan of the critical legal studies movement: “Law is politics!” Other heirs to the realist tradition (including normative law and economics, the legal process school, legal pragmatism, and so forth) coalesce around what we might call the instrumentalist thesis—the point of legal institutions (especially courts) is to use the law as an instrument to achieve the goals of some normative theory (such as welfarism or deontology ) or a political ideology (of the left, right, or center). There are, of course, opposing tendencies in contemporary legal theory. Some neoformalists emphasize the duty of adjudicators to follow the law and give the parties what they are due; in a rough and ready sort of way, these neoformalists adopt a deontological perspective on legal theory that competes with the consequentialism of contemporary neorealists.
In this paper, I sketch an alternative direction for contemporary legal theory, an approach that I call “virtue jurisprudence.” My core idea is quite simple. In moral theory, virtue ethics offers a third way—an alternative to the deontological and consequentialist approaches that dominated modern moral philosophy until very recently. What would happen if we transplanted virtue ethics into normative legal theory? This paper offers the sketch of an answer to that question.