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WHAT’S VIRTUOUS ABOUT THE LAW?

  • Kimberley Brownlee (a1)
Abstract
ABSTRACT

Debates about our moral relation to the law typically focus on the moral force of law. Often, the question asked is: Do we have a moral duty to follow the law? Recently, that question has been given a virtue-ethical formulation: Is there a virtue in abiding by the law? This paper considers our moral relation to the law in terms of virtue but focuses on a different question from the traditional ones. The question here is: Can the law model virtue in beneficial ways that enable us to cultivate virtue? This paper shows that the law can do this by setting a moral example that we have good reason to emulate. This is significant given the distinctive influence the law has over our lives. The paper begins by examining the nature of a model, comparing different models of virtue, and then questions the possibility of a complete model of virtue such as the so-called Virtuous Person. The paper then articulates several ways in which the law can model virtue for us and responds to three objections: 1) the embodiment problem, 2) the poisoning problem, and 3) the emulation problem.

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References
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1. Edmundson William, The Virtue of Law-Abidance, 4 Philosophers’ Imprint 121 (2006). Edmundson contrasts law-abidance with obedience. The latter is neither admirable nor beneficial to the agent; it is held hostage to the defense of the duty to obey law qua law. The core aspects of law-abidance are, first, a disposition to follow the “retail” orders of a sufficiently democratic legal system, second, a disposition to regard the legal requirements of such a system as invariably good reasons for compliance, and finally, a disposition to follow the relevant customary law. In Edmundson's view, law-abidance is a virtue; it is both admirable and beneficial to the agent. It also harmonizes with related virtues, such as sociability, justice, and open-mindedness, and it explains the moral phenomenology of puzzle cases.

2. One way we might think about the law as a model of virtue is through the personification of the law in the legislator, judge, police officer, or other legal official, who acts in good faith and models virtue for us through his or her lawmaking behavior. In what follows, I show that a proper understanding of the nature of models does not require us to limit the idea that law models virtue in this way.

3. Focusing on the virtue of justice, John Gardner notes that:

Some critics even doubt whether legal systems really have it in them to live up to the aspiration that they should be just, and accordingly they treat the law's continual invocations of justice as a kind of tragicomic conceit. But in all this disagreement the assumption generally remains unshakable on all sides that justice is indeed the correct aspiration for the law, so that a law or legal system which fails to be just is a law or legal system which fails in a respect fundamental to its worthiness as a legal system.

Gardner John, The Virtue of Justice and the Character of the Law, 53 Current Legal Probs. 130 (2000).

4. This paper takes as its starting point some ideas in Kimberley Brownlee & Richard Child, Can the Law Help Us to Be Moral? (in progress).

5. As R.W. Emerson puts it: “Imitation cannot go above its model.” This quote can be given two interpretations. The first, which is what Emerson means, is that an imitator can never be better than the thing after which he models himself. The imitator is doomed to mediocrity, Emerson says. The second interpretation is definitional: if a person comes to exceed the thing after which she has modeled herself, then it no longer serves as her model. Ralph Waldo Emerson, Address to the Senior Class of Divinity College, Cambridge, Mass., July 15, 1838, in Nature; Addresses and Lectures (1849), available at http://www.emersoncentral.com/divaddr.htm.

6. For an overview of the anticodifiability problem, see Rosalind Hursthouse, Virtue Ethics, The Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2013), available at http://plato.stanford.edu/archives/fall2013/entries/ethics-virtue/.

7. For a discussion of Bernard Williams's thesis that the right is prior to virtue and that it is hence futile to try to “virtue-center” morality, see Edmundson, supra note 1.

8. Hursthouse, supra note 6.

9. H.A. Prichard observes that “the mere receipt of an order backed by force seems, if anything, to give rise to the duty of resisting rather than obeying.” H.A. Prichard, Green's Principles of Political Obligation, in Moral Obligation (1937), at 54. The growing literature on “nudging” indicates that we are often more responsive to influences on our choices that do not take the form of direct instructions. See Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness (2008).

10. In what follows, I adopt a contemporary, commonsense view of the core virtues. They include generosity, kindness, compassion, forgiveness, courage, benevolence, patience, honesty, good humor, attention, respect, decency, civility, and so on.

11. See Hursthouse, supra note 6.

12. See Rosalind Hursthouse, On Virtue Ethics (1999), at 13.

13. Wolf Susan, Moral Psychology and the Unity of the Virtues, 20 Ratio 145167 (2007).

14. The arguments in this section build upon work in Kimberley Brownlee, Conscience and Conviction: The Case for Civil Disobedience (2012), ch. 2; and Brownlee Kimberley, Moral Aspirations and Ideals, 22 Utilitas 241257 (2010).

15. I thank Thomas Sinclair for articulating this reply.

16. In a similar, though more basic, way, Gardner, supra note 3, at 4, notes that “what strikes, say, an honest person as sufficient reason to perform some action may strike a loyal person as being an insufficient reason to perform that same action, and vice versa.” Therefore, sometimes the honest person and the loyal person will agree about the action to be performed but not on the reason to perform it. And sometimes they will disagree about the action to be performed. It is this latter possibility that falls within moral pluralism.

17. An aspiration is a deep desire or longing to realize something that is presently beyond us. It has been suggested to me that a Virtuous Person might have a moral aspiration to help others to achieve the same moral qualities she has achieved. Such an achievement is presently beyond the Virtuous Person, so I might have to grant that the Virtuous Person could have such an aspiration. In reply, though, such a desire might be a desire for a deep impossibility rather than for something that is just presently beyond her. For an explication of the nature of aspiration, see Brownlee, Moral Aspirations, supra note 14.

18. Gardner, supra note 3, at 1–30.

19. See Tasioulas John, Punishment and Repentance, 81 Philosophy 279322 (2006); and Tasioulas John, Mercy, 103 Proc. Aristotelian Soc’y 101132 (2003).

20. See John Stuart Mill, On Liberty (1859); and Markovits Daniel, Democratic Disobedience, 114 Yale L.J. 18971952 (2005); and Brownlee, Conscience, supra note 14.

21. I thank Seana Shiffrin for highlighting this point.

22. This paragraph draws on Brownlee & Child, supra note 4. An anonymous referee points out that the U.S. Congress exempts itself from employment discrimination laws and hence is not a good model of nondiscrimination in this respect.

23. For example, Canada has had a history of giving refuge to U.S. draft dodgers. This is a history that the Harper Conservative government has undermined.

24. In her book Speech Matters: Lying, Morality and the Law (2014), Seana Shiffrin argues that certain institutions should not only model virtue by performing the morally correct acts but symbolize moral commitments in ways that go beyond mere modeling.

25. The Second Amendment—the right to bear arms—does not overtly demonstrate a commitment to peace.

26. The punctilios of courtroom procedure can make this kind of modeling difficult.

27. See Brownlee, Conscience, supra note 14, ch 3.

28. This analogy is drawn from Brownlee & Child, supra note 4.

29. William Edmundson has argued in conversation that law as a body of doctrine cannot model virtues. Perhaps it could if there were settled customary law, but that is not really how the law works now. Plea bargaining, special interests, lobbyists, pressure groups, money, electoral calculations, and so on all figure in the processes of lawmaking.

30. I thank Richard Child for highlighting this point.

31. For a defense of the view that even angels and morally perfect people would need a state, see Immanuel Kant, Perpetual Peace: First Supplement (1797); and see Kavka Gregory, Why Even Morally Perfect People Would Need Government, 12 Soc. Phil. & Pol’y 118 (1995).

32. See Thomas Christiano, The Constitution of Equality (2008); see also John Rawls, A Theory of Justice (1971).

33. As an aside, there is an interesting question of whether the explicit modeling of vice could actually serve as a model of virtue because by emulating that model of vice we might come to see clearly the horrors of being vicious and come to appreciate directly the values and reasons to be virtuous. Would that make a demon villain a model of virtue?

34. Rawls, supra note 32, concludes A Theory of Justice in a similar spirit, observing that “purity of heart” is attainable by emulating the hypothetical chooser in the original position so as “to see clearly and to act with grace and self-command from this point of view”. I thank an anonymous referee for highlighting this.

35. As Philip Pettit and Geoffrey Brennan say: “The lustre which unselfconscious involvement gives to behavior is an example of a calculatively elusive consequence. It is a benefit which is reliably produced by the unselfconscious predisposition but which evaporates under a regime of sustained action-calculation.” Pettit Philip & Brennan Geoffrey, Restrictive Consequentialism, 64 Australasian J. Phil. 438455 (1986).

36. Pettit Philip, The Consequentialist Can Recognise Rights, 38 Phil. Q. 4255 (1988).

37. Jon Elster, Sour Grapes (1983), ch. 2. Cited in Pettit, supra note 36.

38. Of course, not everyone views their relation to the law in this way. See, e.g., Mark Greenberg's account, which he calls the “moral impact theory of law.” Greenberg argues that legal institutions make the law what it is, namely, the law is the moral impact of the relevant actions of legal institutions. In acting, legal institutions alter our expectations, give us new options, endorse some of our schemes, and so on. In doing so, they change some of our moral obligations, and the obligations they generate are legal obligations. Greenberg Mark, The Moral Impact Theory of Law, 123 Yale L.J. 1288 (2014).

* I am grateful to Thomas Sinclair and Richard Child for very helpful comments on this paper. For valuable discussions, I thank audiences at the 2012 Manchester Political Theory Workshops, organized by Massimo Renzo and Christopher Bennett, and the UCLA Legal Theory Workshop Series, organized by Stephen Munzer. I thank two anonymous referees for very helpful feedback on this paper.

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Legal Theory
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