Virtue in Law: Larry Solum and His Aretaic Theory of Legislation

The virtues, understood as those characteristics of human life and living which are oriented to human flourishing, are rarely discussed when analyzing law. For the most part law, whether private or public, is evaluated in terms of increasing individual welfare or maximizing individual autonomy. Broader notions of normative justice are regularly invoked but just as regularly can be seen to be used for their rhetorical effect, not their substantive content.

I have utilized a virtue-centered approach a number of times on this blog concerning issues as disparate as bankruptcy, contracts, and corporate law. I have not, however, attempted to lay out a virtue-centered approach to the phenomenon of legislation as a whole. Go here to read Georgetown law professor Larry Solum's twelve-page essay attempting just that. As he describes this approach,

An aretaic[virtue-centered] theory of legislation claims that the aim of law should be to promote human flourishing, consisting of lives of social and rational activities that express the human excellences or virtues. A theory of legislation can be virtue-centered in two senses. First, the conceptual framework of the theory focuses our attention on the role of character and virtue in general legal theory. Second, the central claim of the theory is that the promotion of virtue is the most important aim of legislation.

Any virtue-centered approach to law must address two questions: What are human virtues and how the law can (and should) promote them. I won't summarize how Solum's essay answers these two questions; it's short and the reader is encouraged to take the time to read it. In brief, it's a nice start but, as with any "big" theory, the devil will be in the details.

My principal concern is not with evaluating legislation in terms of virtue--we should--or even with identifying the virtues--I'll grant Solum's--but with the lack of normative force that Solum's naturalistic account necessarily entails. As Solum puts it,

I will assume that morality is a natural phenomenon, subject to a kind of investigation that is continuous with the natural sciences. Thus, we can ask the question what sort of life is good for humans in the same way that an ethologist can ask what kind of life is good for eagles or salmon. ... A good human life is much more complicated, because humans are rational and social creatures. The model theory offers an account of the good life for humans and of the characteristics that humans need to lead a flourishing life.

Solum has good company in his naturalistic assumption; Aristotle comes to mind. But I don't believe it is adequate in a modern (and post-modern) world in which the link between the is and the ought has been severed. Modern naturalistic science is decidedly non-teleological and it's hard to believe that a naturalistic theory of law can be otherwise.

Not that Solum's conclusions are incorrect; yet they are not grounded in a thick metaphysical account of what it means to be human. Without such an account, a virtue-centered evaluation of legislation will, as I argued in my article about human rights, wither away in the face of the apparent precision of utilitarianism and the emotional appeal of autonomy, especially of the sexual sort.

For those willing to entertain the possibility of a non-naturalistic account of human nature and human flourishing, I can suggest an additional three of my articles in which I attempt to use a specifically Christian version of both in connection with contract law: Consideration in the Common Law of Contracts, Principled Pluralism and Contract Remedies, and Mission Possible: A Paradigm for Analysis of Contractual Impossibility. 

The virtues are real and are really important. And I applaud Solum for reviving their use in analyzing the law.