Virtue in Law

Back in June I posted a series of entries here, here, and here discussing the relationship between the bankruptcy discharge and the virtue of forgiveness. These had followed my earlier musings about what I called the morality of promise-receiving.

I am pleased to note that I'm not alone in wondering about a place for the virtues in the law. Avery Katz of Columbia Law School posted a piece here entitled "Virtue Ethics and Efficient Breach." Katz nicely summarizes the utilitarian and deontological arguments for and against the doctrine of efficient breach (that the law should not penalize contract breaches so long as the breacher pays the aggrieved party its expectation damages; in other words, contract promisors have an unstated option to perform or pay). He then develops an argument that, notwithstanding its efficiency, permitting promisors such an option might undercut moral character, civic solidarity, and a flourishing community. In my terms, since the virtue of fidelity accounts for the morality of promise-keeping, it should be part of its legality as well.

But, as I also argued, a corresponding virtue exists. Some call it forgiveness; Katz calls it clemency or magnanimity. I called it forbearance. Whatever the name, I am intriged to see an increasing use of an ethical perspective grounded in the virtues when it comes to looking at the law.

Katz's short piece does no more than suggest what a full-blown virtue-based account of the efficient breach might look like. I hope someone--perhaps one of my students?--pursues it in depth.