23 May 2018

The End of Legislation

Go here to download an excellent essay by Georgetown law professor Lawrence Solum, Virtue as the End of Law. The title of my post is a bit narrower because I believe the take-away from Solum's essay is more appropriate to the work of legislators than judges. Cribbing from his abstract we read that "the fundamental aim of law should be the promotion of human flourishing, where a flourishing human life is understood as a life of rational and social activities that express the human excellences."

Adopting a neo-Aristotelian anthropology (humans are rational and social beings) and understanding of the virtues ("dispositional qualities that are partly constitutive of human flourishing"), Solum singles out several virtues and the legislative ends that would enhance them:
Human flourishing requires peace and prosperity, so legislation should aim at the elimination of violence and poverty. Human flourishing requires lives of rational and social activity, so legislation should aim at creating vibrant communities with opportunities for meaningful work and play that engage our rational capacities. Human flourishing requires the virtues, so legislation should aim at creating the conditions for healthy emotional and intellectual development.

Just how legislation could bring about these ends occupies a part of the essay that you can read for yourself. Solum frankly acknowledges that a virtue-centered approach to law is subject to challenges in terms of empirical questions (exactly how should a law go about enhancing the virtue of rational activity?) and of the potentially feckless nature of legislators (who might be more interested in personal gain than the common good). In other words, Solum's is not an ideal theory; it accounts for the reality of a fallen world even if not in that turn of phrase.

Having agreed with the substance of Solum's essay to this point, I was intrigued when he came to his discussion of the virtue of justice itself. Justice is, as even Aristotle acknowledged, an unusual virtue. Exactly what human excellency does the virtue of justice instantiate? I spend some time on this in Revisiting Unconscionability: Reciprocity and Justice, which will appear as a chapter in "Christianity and Private Law" to be published by Cambridge University Press next year. A bit of a preview:
In the Nicomachean Ethics Aristotle used his familiar dialectic method to divide the single virtue of justice into two sorts. The first, what Aristotle labeled general justice, was simply the perfection of all other virtues. By contrast, the second kind of justice--particular justice--addressed the allocation (and potential reallocation) of goods (social, political, and material) within a community. Aristotle in turn divided particular justice into two components, distributive and corrective. Distributive justice addressed the initial allocation of the goods while with corrective justice Aristotle identified the circumstances when an existing allocation of goods was improperly disrupted as well as the measure of its restoration. The existing distribution of goods could be disrupted either by an involuntary transaction (tort) or by a voluntary transaction (contract).

In other words, for Aristotle the virtue of justice was either a capstone of all virtues--and thus well beyond the end of any particular piece of legislation--or a virtue having to do with (re)allocation of the host of goods present in a society. Legislation, then, if it is to enhance the personal practice of justice, can do so in only a secondary way. In other words, justice-oriented legislation is about remedies for injustice. To be sure, a person pursing a life of virtue can draw some lessons from the panoply of remedies for a variety of injustices but those remedies pertain most directly to the vicious among us.

But note Solum's take on the virtue of justice:

the key idea is that justice is a disposition to internalise widely shared and deeply held social norms (or nomoi) that govern human interaction. We can call this conception of justice, ‘Justice as Lawfulness’ (hereinafter capitalised to mark the sense of the phrase that is stipulated here), where the term lawfulness is understood in a wide sense that includes social norms and positive enactments – to the extent that such enactments are recognised as authoritative by the relevant social norms.
It's not to say that Solum's understanding of justice as virtue is incorrect but only that at this point he differs from his guide, Aristotle. Perhaps the extraordinary increase in the number of laws since the fourth century BC(E) explains why Solum recasts the virtue of justice. Or perhaps it is the need for a different notion of the virtue of justice in an increasingly pluralistic West. After all, legislators should take special care to align law and nomoi in modern states no longer represent a unified nation with a common understanding of right and wrong, virtue and vice.

Except, they don't. Current legislators (and their judicial cousins who legislate from the bench) all too often give little regard to the social norms of the people governed by the law they create. There is thus a substantial (and, it seems to me, growing) gap between nomoi and law, which makes the virtue of Justice as Lawfulness ever more elusive. This state of affairs is regrettable and tends to undercut whatever other virtues legislation may cultivate.

When all is said and done, it seems that a virtue-centered approach to legislation has limited value in the contemporary situation. A nation with lack of consensus about the virtues and a legislature and judiciary populated by groups with interests inconsistent with whatever nomoi remain cannot place much hope in a view of law that finds its roots in a classical (and Christian) past. That is not to say there is no place for virtue-enhancing law in a post-liberal political order but only that as much as I appreciate Solum's argument I believe we continue to suffer under the tyranny of a rights-centered approach for the foreseeable future.

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