The Role of Virtue in Legal Justification

Abstract

The concept of a virtue is central in contemporary ethics and epistemology. The revival of virtue ethics was launched by Anscombe’s important article “Modern Moral Philosophy”, in 1958, and has been developed, since then, into one of the three major approaches in normative ethics, together with deontology and consequentialism. Virtue ethics puts a primary emphasis on aretaic concepts rather than emphasizing duties or rules or the consequences of actions. In epistemology, there has also been a turn to virtue. Sosa, in 1980, first vindicated the relevance of the concept of a virtue in epistemology in his seminal paper “The Raft and the Pyramid”. The central idea of virtue epistemology is that normative properties of beliefs should be understood in terms of the epistemic virtues of agents, rather than the other way around. Virtue epistemology 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. The concept of a virtue is a quite neglected one in contemporary philosophy of law. Nonetheless, the importance of the virtues in law was recognized from the very beginnings of the philosophical reflection about the law. Both Plato and, above all, Aristotle gave to virtues an important role in explaining law and adjudication. Virtues were also central to Aquinas’ theory of natural law, but their role has been at best marginal in contemporary natural law theories. In the dominant approach to philosophy of law in the 20th Century, i.e., legal positivism, virtues do not have any place within the theory.