black and white grain elevators, the law and virtue

Grain elevators

Grain elevators, North Dakota. c1971 by D. Plowden.


Book Review: Law, Virtue and Justice  (Law, Virtue and Justice. Amalia Amaya and Ho Hock Lai (eds.). Hart Publishing. December 2012.)

Thanks to the 24-7 news cycle, we are more familiar than ever with the personalities involved in legal decision-making, such as judges, legislators, and lawyers. When academics and commentators debate the actions of legal actors, it is often in terms of consequentialist or deontological ethics, proclaiming that they should make a certain decision because it’s the best thing or the right thing to do. Ironically, given how closely we may feel we “know” these people, we rarely focus on the moral character of the legal actors as a factor in the decisions they make.

It has been the general public’s tendency to rush to judgment about guilt and innocence, and the sentencing or other system of punishment for as long as there have been printing presses and pamphleteers. And probably longer. Though easily accessible media, certainly modern electronic media from cable and increasingly Twitter, both encourage and magnify the formation of the instant opinion. Whether it is a good thing or not, doing so around the living room has become a cultural standard. It all became very surreal and dangerous when so much of the media, encouraged by net denizens like Drudge and the New York Post, and even CNN, echoed a lot of wild speculation. They could not bring themselves to say this is what we know for sure and it would not be ethical for us to speculate or just babble about possibilities of other factors. Even their legal experts or supposed experts, go far beyond real world legalities. Having inserted themselves into the legal system and due process, where is the restraint, where is the virtue: Conservative Media’s Own Legal Experts Undermine Campaign To Shred Due Process .

Amaya spends the balance of her concise chapter weighing strong and weak versions of her arguments, as well as confronting objections based on the priority of reasons (which she calls the publicity objection), the authority of the law, and disagreement about virtue themselves. These three distinct objections share a common element in that they all call into question the focus on the agent which is the hallmark of virtue ethics. They claim that too much emphasis is put on legal decision-makers rather than on the reasons on which they make decisions, the extent to which these reasons rely on legal materials, and the particular virtues that serve to justify their decisions. In response, Amaya deftly explains that the objections oversimplify the role of virtue in legal justification: for instance, virtue does not obscure the role of reasons based on the law, but rather governs how the legal agent develops and incorporates them.

It is difficult for me to read that without some irony. We live in the age of the Supreme Court Justices Clarence Thomas and Antonie Scalia. Judges who see venality, a childish spitefulness, as part of the law and legal decisions. Thomas, who is not much more than Scalia’s puppet, and Alito too for that matter, see their authority as a way to take revenge on groups of people – minorities, women, gays, lesbians, laborers, the non-wealthy. Virtue to them seems to be based on some old Calvinistic drive to make people suffer for their own good or because their dogma dictates that they suffer. Consequential virtues, with a positive outcome, do not factor into their legal thinking because it is not part of their character.