Academic

Yankah on Fletcher on Criminal Law

By Lawrence Solum

Ekow Nyansa Yankah (University of Illinois - College of Law) has posted The Law of Duty and the Virtue of Justice on SSRN. Here is the abstract:

In his new book, The Grammar of Criminal Law: American, Comparative, and International, celebrated criminal law theorist George Fletcher excavates criminal law doctrine across a number of countries and cultures to reveal a small number of basic shared structures. Among these structures Fletcher argues that it is a criminal law justified by Kantian legal morality, in contrast to perfectionist or communitarian theories, that is legitimate. Thus, Fletcher proposes, along with legal positivists, that the validity of legal norms does not turn on the moral claims that may underlie a perfectionist or virtue theory of law. Fletcher's claims about the shared structure of law do more than propose an analytical model of valid criminal law. Most importantly, Fletcher draws attention to the often under explored normative implications of proposed models of law in analytical jurisprudence.

Virtue theories of law challenge Fletcher's view of legitimate criminal law by proposing a fundamentally different jurisprudential model of valid law. Rather than liberalism's commitment to preserving autonomy or the neutrality of the state as primary, virtue theories forward competing models of law grounded in preserving sound practical reason or the promotion of human flourishing. And while these models find a distinct and mediated role for morality to play in the determination of legitimate law, they ultimately deny Fletcher's claim that morality cannot be incorporated into law without being referenced by the law and that our political commitments must precede our moral commitments.

This article places Fletcher's model of criminal law within the positivist jurisprudential landscape and connects that model of law to Kantian legal duties. The piece then explores the particular resources virtue theories of law forwarded by Lawrence Solum and Kyron Huigens have to address the role of political concerns within a virtue theory of law. It examines whether a sophisticated virtue theory finds a place for political concerns that are sufficient to defeat liberal philosophical critiques and undermine Fletcher's claims for criminal law. More importantly, rather than simply exploring the competing jurisprudential models, this article explores the important normative commitments that stem from competing jurisprudential models. Ultimately, the article concludes that understanding certain factors about the very nature of law generally and criminal law particularly leads one to affirm Fletcher's claims and limits the justification of law to our deontic duties.

And from the text:

[V]irtue jurisprudence undermines Fletcher?s claim that law must elevate the political above the moral. Virtue jurisprudence puts the moral above the political by incorporating human flourishing into the validity conditions of law. Remember that the person of practical wisdom, the phronimos, recognizes that justice is only one virtue and not the sole end of law. In order for something to be nomos it must be capable of being internalized by the wise (that is, humans with all the virtues including practical reason). Ultimately, the model is an integrated one. In order for a law to be valid, it must ultimately be aimed at human flourishing. The moral is primary to the political. If one finds the aretaic picture of law persuasive, then both Fletcher?s claims?that the law must reference morality before it is relevant and that the political must precede the moral?fall.

And:

I have argued that the picture presented by Solum?s Justice as Lawfulness model presents fails to properly characterize law on positivist grounds. This is not simply because determining the conditions for human flourishing is difficult but rather because it fails to recognize that law is inherently coercive. Without recognizing that law is coercive, a virtue jurisprudence is insufficiently fined-grained to distinguish law from other normative systems. Nor can virtue jurisprudence simply graft coercion on as an additional variable, for whether a law is coercively enforced is a social fact of the kind critical to positivism. Most importantly, a model of law that gives coercion a constitutive role restricts the kinds of reasons that may justify the law.

Highly recommended.

Yankah's last point misconstrues the the relationship between three concepts in virtue jurisprudence: (1) the virtue of justice as lawfulness, (2) the nomoi (the deeply held widely shared social norms of particular human communities that are internalizable by the phronomoi (the practically wise), and (3) positive law.  Virtue jurisprudence need not take any distinctive stance on the question as to how "positive law" is identified; my own position is that any of the leading positivist accounts of the nature of law (e.g., Coleman, Shapiro, or a reconstructed version of H.L.A. Hart) can be incorporated into virtue ethics as a module.

The distinctive contribution of virtue ethics is not a distinctive answer to the what is law question but to shift the focus of attention.  Making the aretaic turn on this topic requires that we shift the focal point of inquiry from the questions like "What is the nature of law?" or "How do social facts fix the content of the law?" to the question "What is the content of the virtue of justice as lawfulness?" and "What are the conditions under which the nomoi can be internalized by a fully virtuous agent?"

These questions about virtue do not correspond directly to the question, "What is law?," as that question is addressed in contemporary analytic positivism.  Rather, the corresponding questions for analytic positivism would be "What is the proper moral semantics for law?" or "How can the fact that social facts fix legal content be reconciled with the moral obligation to abide by the law?"  Of course, when it comes to these questions, positivism's internal resources are much less rich than the resources available to virtue jurisprudence.  The relevant aretaic apparatus, the theory of the virtue of justice as lawfulness and the account of the fully virtuous agent, provide the resources to provide a theoretically rich account of the relationship between lawfulness and morality as construed by contemporary neoaristotelian virtue ethics.  Legal positivism can avail itself of external resources to address the analagous questions, but it must either borrow a comprehensive moral and political philosophy (e.g., some form of deontology) or make a showing as to how the questions can be answered without a comprehensive doctrine.

Read Yankah.

Full post as published by Legal Theory Blog on March 21, 2008 (boomark / email).