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Gaebler on Political Virtue and Judicial Review

By Lawrence Solum

Ralph Gaebler (Indiana University Maurer School of Law) has posted On the Incompatibility of Political Virtue and Judicial Review: A Neo-Aristotelean Perspective on SSRN. Here is the abstract:

Part I of this essay outlines a neo-Aristotelean theory of political virtue, an instance of virtue generally, that serves as the basis of excellent citizenship in the polis. As such, political virtue contributes its share to the achievement of eudaimonia, or the fulfillment of an individual?s natural, human function. In fact, political virtue is especially important because people are political beings, i.e. they seek the good most comprehensively in the context of association with others. Therefore, Aristotle describes politics as the master science of the supreme good, because politics orders the community of the polis and thereby establishes the norms that shape people?s lives.

The theory of political virtue outlined here is not prominently or even explicitly presented in Aristotle?s Nicomachean Ethics. However, the theory is a faithful interpretation, in that it is clearly implied by (or at least logically derived from) his most basic ideas. Prominent among them is the idea that the achievement of eudaimonia requires not only cultivation of virtuous dispositions, but action motivated by virtuous dispositions and guided by practical reason (phronesis). As a result, the achievement of eudaimonia depends, in part, upon engagement in ethically significant activity that contributes directly to the shape of the political community in which one lives.

Part II asks whether this theory of political virtue is compatible with strong judicial review, i.e., the form of review that empowers courts to strike down legislation duly enacted by democratically chosen representative bodies. Since the theory of political virtue requires consensual and continuous decision-making, it is found incompatible with strong judicial review as a preliminary matter. In a more extended analysis, it is also found incompatible with both a pluralist-democratic defense of strong judicial review and a popular sovereignty defense, advocating strong judicial review based on originalist interpretation of the Constitution. From the neo-Aristotelean perspective, the former fails to appreciate the qualitative uniqueness of majoritarian representation as the embodiment of morally significant action. The latter fails to appreciate the importance of continuous political activity for the attainment of eudaimonia. As a result, the neo-Aritotelean theory of political virtue appears to interpose a genuinely normative objection to strong judicial review from the standpoint of virtue ethics.

Full post as published by Legal Theory Blog on May 10, 2010 (boomark / email).