Rousseau's understanding of legislation as the expression of the general will implies a constitutional principle of legislative supremacy. In turn, this should translate to a narrow, mechanical account of adjudication, lest creative judicial interpretation subvert the primacy of legislative power. Yet in his constitutional writings, Rousseau recommends open-textured and vague legislative codes, which he openly admits will require judicial development. Thus he apparently trusts a great deal in judicial discretion. Ostensibly, then, he overlooks the problem of how (...) legislative indeterminacy—and correspondingly, judicial discretion—may undermine the authority of the general will. However, I argue that Rousseau aims to check judicial subversion of legislative supremacy simply by extending his broader social politics—and specifically, his peculiar concept of republican virtue—to the domain of law. His main concern is that the law should not develop as a mystifying expert practice; therefore, he necessarily rejects any understanding of judicial virtue as lying in principled discourse. Instead, he envisages that judicial power will be checked by a more generic sense of republican virtue. In turn this echoes his apprehension of social differentiation and social complexity as sources of domination and hierarchy. (shrink)

This paper articulates an egalitarian conception of judicial humility and justifies its value on the grounds that it importantly advances the legal and political ideal of fraternity. This account of the content and value of the virtue of humility stands in sharp contrast with the dominant view of judicial humility as deference or judicial restraint. The paper concludes by discussing some ways in which the account of humility and of its value provided in the paper furthers our (...) understanding of the judicial virtues and of the political implications of giving virtue a role in adjudication. (shrink)

This paper develops a virtue-account of legal reasoning which significantly differs from standard, principle-based, theories. A virtue approach to legal reasoning highlights the relevance of the particulars to sound legal decision-making, brings to light the perceptual and affective dimensions of legal judgment, and vindicates the relevance of description and specification to good legal reasoning. After examining the central features of the theory, the paper proposes a taxonomy of the main character traits that legal decision-makers need to possess to successfully engage (...) in legal reasoning. The paper concludes by discussing an array of strategies in legal education, institutional design, and legal culture that can be put in place to work virtue in legal decision-making. (shrink)

Evidence-based medicine has beendefined as the conscientious and judicious useof current best evidence in making clinicaldecisions. This paper will attempt to explicatethe terms ``conscientious'''' and ``judicious''''within the evidence-based medicine definition.It will be argued that ``conscientious'''' and``judicious'''' represent virtue terms derived fromvirtue ethics and virtue epistemology. Theidentification of explicit virtue components inthe definition and therefore conception ofevidence-based medicine presents an importantstarting point in the connection between virtuetheories and medicine itself. In addition, aunification of virtue theories andevidence-based medicine will illustrate theneed for (...) future research in order to combinethe fields of virtue-based approaches andclinical practice. (shrink)

This paper analyses the role of a code of ethics for judges in connection to a contemporary definition of responsive ‘T-shaped’ judicial professionalism and the professional-ethical questions which can arise in judicial decision-making regarding politically and societally controversial issues. The paper’s case study focuses on climate-change related litigation in Dutch courts. First, a theoretical framework which conceptualises practical and ethical elements of T-shaped judicial professionalism as ‘virtuous judgecraft’, building on the work of Kritzer and Van Domselaar, addresses (...) the knowledge, skills, and ethical mindset that judges need for fulfilling their roles in relation to this notion of professionalism. Next, the paper analyses to what extent connections with guidelines of the Dutch Guide to Judicial Conduct (GJC), considered in light of the developed framework of virtuous judgecraft, can be recognised in the approaches of judges in the landmark Urgenda judgments. Based on this analysis, the paper presents conclusions regarding the value of the GJC for enhancing judicial performance and for explaining judgments, in particular those which involve complex societal issues, to parties and the general public. (shrink)

In response to Lawrence Solum's advocacy of a ‘virtue–centred theory of judging’, I argue that there is indeed important work to be done in identifying and characterising those qualities of character that constitute judicial virtues – those qualities that a person needs if she is to judge well (though I criticise Solum's account of one of the five pairs of judicial vices and virtues that he identifies – avarice and temperance). However, Solum's more ambitious claims – (...) that a judge's vice necessarily corrupts her decisions, and that in at least some contexts we must define a legally correct decision as one that would be reached by a virtuous judge – should be rejected: we can undermine the former by attending to the requirements of due process, and the latter by attending to the ways in which a judge would try to justify her decision. (shrink)

“Virtue jurisprudence” is a normative and explanatory theory of law that utilises the resources of virtue ethics to answer the central questions of legal theory. The main focus of this essay is the development of a virtue–centred theory of judging. The exposition of the theory begins with exploration of defects in judicial character, such as corruption and incompetence. Next, an account of judicial virtue is introduced. This includes judicial wisdom, a form of phronesis, or sound practical judgement. (...) A virtue–centred account of justice is defended against the argument that theories of fairness are prior to theories of justice. The centrality of virtue as a character trait can be drawn out by analysing the virtue of justice into constituent elements. These include judicial impartiality (even–handed sympathy for those affected by adjudication) and judicial integrity (respect for the law and concern for its coherence). The essay argues that a virtue–centred theory accounts for the role that virtuous practical judgement plays in the application of rules to particular fact situations. Moreover, it contends that a virtue–centred theory of judging can best account for the phenomenon of lawful judicial disagreement. Finally, a virtue–centred approach best accounts for the practice of equity, departure from the rules based on the judge’s appreciation of the particular characteristics of individual fact situations. [ABSTRACT FROM AUTHOR]. (shrink)

What is the role and value of virtue, emotion and imagination in law and legal reasoning? These new essays, by leading scholars of both law and philosophy, offer striking and exploratory answers to this neglected question. The collection takes a holistic approach, inquiring as to the connections and relations between virtue, emotion and imagination. In addition to the principal focus on adjudication, essays in the collection also engage with a variety of different legal, political and moral contexts: eg criminal law (...) sentencing, the Black Lives Matter movement and professional ethics. A number of different areas of the law are addressed and the issues explored include: the benefits and limits of empathy in legal reasoning; the role of attention and perception in judicial reasoning;, the identification of judicial virtues and judicial vices ; the values and dangers of certain imaginative devices ; and the interactive and social dimensions of virtue, emotion and imagination. (shrink)

This article shows that judicial review has a democratic justification even though judges may be no better at protecting rights than legislatures. That justification is procedural, not consequentialist: reflecting the ability of judicial review to express and protect citizen’s interests in political participation, political equality, political representation and political accountability. The point of judicial review is to symbolize and give expression to the authority of citizens over their governors, not to reflect the wisdom, trustworthiness or competence of (...) judges and legislators. Above a threshold level of competence – which may be impossible to determine a-priori – the legitimacy of judicial review does not turn on the special wisdom, virtue or personal qualities of judges. Instead, it reflects the importance that democracies properly attach to the ordinary virtues and competences of individuals in justifying power and authority. Hence, this article takes issue with the defence of judicial review in Eisgruber and Brettschneider, as well as with the critiques of judicial review found in Waldron and Bellamy. (shrink)

Humility holds a modest but important place among the judicial virtues. But in spite of its growing popularity, it does not yet have a place on the ‘central judicial virtues’ lists. This paper provides an argument that judicial humility, especially institutional judicial humility, should be considered a necessary judicial virtue at least in common-law jurisdictions. This is because it is a necessary ingredient in precedent-based decisions that are fully justified from the point of (...) view of the law and of political morality. Further, while it is sufficient that individual judges make decisions that a humble judge would have made, the judicial community must in fact be humble in order to produce fully justified common-law decisions – humility is therefore necessary as a community-virtue. (shrink)

Según Manuel Atienza, la teoría de la argumentación jurídica se tiene que ocupar de responder tres preguntas: cómo analizar una argumentación, cómo evaluarla y cómo argumentar. Esta concepción de la teoría de la argumentación jurídica es, sin embargo, demasiado restrictiva. Además de proporcionar una respuesta adecuada a estas preguntas, una teoría de la argumentación jurídica debe ocuparse también de la cuestión de qué virtudes debe tener un juez para hacer buenas argumentaciones. La teoría de la argumentación jurídica está, por ello, (...) íntimamente vinculada con una teoría de la ética judicial. According to Manuel Atienza, a theory of legal reasoning should give an answer to the following three questions: how to analyze an argumentation, how to evaluate it, and how to argue. This conception of the theory of legal reasoning is, however, too restrictive. in addition to providing a sound answer to these questions, a theory of legal reasoning should also give us an answer to the question of which judicial virtues are necessary to make good arguments. A theory of legal reasoning is thus intimately linked to a theory of judicial ethics. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Artificial Virtues and the Equally Sensible Non-Knaves: A Response to Gauthier Annette C. Baier Gauthier's splendidly dialectical paper1 first sets out Hume's official Treatise account ofhow each personhas a self-interested motive to curb her natural but socially troublesome self-interest, by agreeing to the adoption ofthe artifices ofprivate property rights, transfer by consent, and promise (provided others are also agreeing to adopt them), andhow the sympathy-dependent moral sentiment approves (...) of such a redirection of"the interested passion." Enlightened self-interest gives us the natural obligation tojustice; the fact that it is morally approved turns it into a moral obligation. Self-hatred for any breaches of the moral obligation may come in to bolster the self-interested motivation, and this will be helped along by the extra artifices employed by educators and politicians. So far so good. But now enters the sensible knave, who queries the initial assumption that each will in fact gain more by strict conformity to the rules of the Humean social artifices than by occasional carefully calculated and undetected breaches of them. If the knave is right, then the Treatise story ofhow reasonable self-interested people can get themselves to conscientiously respect property rights (including rights ofbarter), and to keep promises, is in trouble. Only by an erroneous calculation of their interest could they end with the motivation which Hume attributes to them, and finds to be morally approvable.Gauthier argues that there are indications even in the Treatise that Hume is aware ofthe flawed nature ofhis official account, since he attributes "sophistry" to some attempted justifications of honest behaviour, and attributes "feigned acts" of impossible willing to some conscientious promise-keepers. Gauthier finds Hume to have, in the Treatise, a second, less official story ofwhat it takes to be motivated to be just—that it takes error, and letting oneself be taken in by feignings and sophistry. In the Enquiry Concerning the Principles ofMorals this submerged account surfaces in the sensible knave's challenge and Hume's admission that his own answer will not be satisfactory to the knave. The charms of official Humeanjustice, Gauthierconcludes, are spurious, sincethe "anatomy" of the account of the rational motivation to be just is known to be unsound. "The sensible knave's message is thathuman society... lacks any moral foundation." Volume XVIII Number 2 429 ANNETTE C. BAIER This is a sombre tale. One of its unwelcome implications is that Hume himself, really believing that the knave is right, but unwilling tobe seen tohave the bad grace to "dehver a theory, however true which... leads to a practice dangerous and pernicious," is simply trying to "sink" the knave's truth in oblivion by creating a smoke-screen of insincere rhetoric about the greater delights of consciousness of integrity over the knave's satisfaction in his ill-gotten gains. So there really are two sombre tales—one, attributed to Hume, about justice, and one about Hume's dupUcity (or is it mere cynical frivolity?): Gauthier crafts both stories beautifully, directing our attention to bits ofHume's text injust the right order for his dramatic purposes. But is he giving us truth or fiction? I completely agree with Gauthier's version of Hume's official Treatise story, that the moral obligation to justice supervenes on the "natural obligation" for which Hume believes the natural motivation to be collectively redirected self- (or family) interest.2 1 agree that there are one or two passages, especially in the Treatise section, "Of the obUgation of promises," that seem to jar with this account, and which much somehow be explained. I agree that Hume believes that his reply to the knave is, from the knave's point ofview, unsatisfactory. Now for some disagreements. First, about Hume's reply to the knave.3From the viewpointofthevirtuous dues-payingmemberof"the party of humankind," Hume's is a perfectly satisfactory reply. It will be plain truth, for a person with the other Humean virtues (including equity, which is listed as a natural virtue),4 that justice will bring as great or greater good than would judicious injustice. Even if it would be "simply preposterous" to believe that the social order is dangerously threatened by any... (shrink)

The urgent need for solutions to critical environmental challenges is well attested, but often environmental problems are understood as fundamentally collective action problems. However, to solve to these problems, there is also a need to change individual behavior. Hence, there is a pressing need to inculcate in individuals the environmental virtues — virtues of character that relate to our environmental place in the world. We propose a way of meeting this need, by the judicious, safe, and controlled administration (...) of “classic” psychedelic drugs as a way to catalyze the development of environmental virtues – a form of moral bio-enhancement. Recent evidence shows that psychedelics can be given safely in controlled environments, and can induce vivid experiences of unity and connectedness. These experiences, in turn, can durably increase feelings of nature-relatedness and pro-environmental behaviors. Therefore, we argue that responsible psychedelic use can reliably catalyze the development of a key environmental virtue known as living in place. This is a “master environmental virtue” that subsumes the qualities of respect for nature, proper humility, and aesthetic wonder and awe. Our account advances the environmental virtues debate by introducing a relevant practical proposal, and advances the psychedelic moral enhancement debate by providing a much-needed conceptual framework. (shrink)

In recent years, a growing body of work has emerged in legal theory that focuses on the relationship between law and virtue. Part of this virtue jurisprudence literature deals with the role of virtue in adjudication and judicial decision-making, with leading authors claiming that virtue plays a central explanatory and normative role. This article engages with this literature on virtue in adjudication, and connects it with a contemporary phenomenon that poses a risk for courts and judges, namely the politicisation (...) of judiciaries. In particular, the question emerges whether virtue jurisprudence is able to provide practical guidance to judges and courts in order to help them avert such politicisation. I sketch the outlines of two contrasting answers to this question, by exploring two alternative approaches to understanding the politicisation of judiciaries from within a broadly virtue-ethical framework. On the first approach, it appears that judges may help prevent politicisation, by becoming more attentive to the tragic character of particular cases and by deciding as civic friends. However, on the other approach, which builds on Alasdair MacIntyre’s critique of modern moral discourse, politicisation appears to be intractable, and the practical recommendations following from the first perspective may even aggravate it. (shrink)

This article contributes to philosophical reflections on public health law by drawing on virtue jurisprudence, which rests on the straightforward observation that a political community and its laws will inevitably shape the character of its officials and subjects, and that an excellent character is indispensable to fulfilment. Thus, the law is properly set to encourage virtue and discourage vice. This opens a new perspective onto the ultimate purpose of public health law that is human flourishing. The means of pursuing this (...) end is to entrust public health powers to officials to virtuously serve the common good, of which population health is one of its most important constituents, within the bounds of the law of the land. This article calls for the adoption of a Prudent Public Health Official standard into the law, in order to cultivate prudent, just, courageous and temperate characters in officialdom. Interestingly, this standard already chimes with certain pre-existing core principles of public health judicial doctrine in the USA, the European Union and the UK. (shrink)

The traditional perspective on emotions, anchored in the Western philosophical tradition, assumes an irretrievable dualism between emotions and reason. Emotions are assumed as forces, which can blind a person’s view and lead them to do terrible things. For this reason, emotions must be put aside during rational deliberation. For common sense, including legal common sense, emotions are dangerous and are unrelated to rational decision-making. Nevertheless, Aristotelian’s perspective on the relationship between emotions, reason and practical deliberation is enlightening. Emotions are not (...) blind forces completely divorced from reason. Aristotle did not develop a complete theory of emotions but recognized a strong covariance between emotions/passions/sentiments and thoughts. This research is based on three theoretical pillars: Aristotle’s perspective on the relationship between reason and emotions drawn on Nicomachean Ethics and Rethoric, the jurisprudencialism, a jurisphilosophical approach elaborated by António Castanheira Neves, and Terry Maroney’s model for judicial emotion regulation. The power of judgement is assumed mainly as a practical task, which involves the excellence of phronesis, virtues and emotions/sentiments/passions. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Prudence: Classical Virtue, Postmodern PracticeFrancis A. BeerPrudence: Classical Virtue, Postmodern Practice. Ed. Robert Hariman. University Park: Pennsylvania State University Press, 2003. Pp. xi + 337. $65.00, cloth."Would it be prudent?" The phrase echoes in memory, linking Dana Carvey from Saturday Night Live to the presidency of the first George Bush. Robert Hariman has been wrestling with prudence for over a decade, and he has now produced a powerful (...) volume that brings together not only his thoughts but also those of a number of other distinguished authors. The result is a book that will become a standard reference for those interested in prudence.The subtitle, Classical Virtue, Postmodern Practice, and the title of the first chapter, "Theory without Modernity," give some idea of the subtexts that drive the book. This is a book about prudence, and more. It is about virtue in classical, modern, and postmodern settings. It is about the dynamic complexity of practice—decision, judgment, and action in public and private life.Hariman gives us a definition: "Prudence is a mode of reasoning about contingent matters in order to select the best course of action" (5). That would be too easy. He also surrounds prudence with a penumbra of related words to broaden our understanding of the complex lattice of semantic meaning. Our legacy from the Greek and Roman lexicon includes words like phronesis and prudentia. Contemporary nouns involve cautiousness, circumspection, and care. Related adjectives are "careful, judicious, tactful, discerning, sensible, frugal, wise, sage, level-headed, balanced, moderate, politic, practical pragmatic, expedient" (vii). These synonyms, for Hariman, describe a narrow, modern form of prudence, part of the calculative tradition inherited from Aristotle, that ultimately leads to the saddle points of rational choice. They are, however, only a part of the story. Hariman aims to relieve their "stodginess" by recovering the performative tradition of prudence from Cicero. Prudence, from this perspective, is defined not just abstractly as a set of rules but more dynamically as a set of roles. Prudence includes character, and is performed by characters. Pericles in Athens is an iconic example of superb political leadership that blends the honor of the leader with the glory of the state. Prudence combines integrity of the self with respect for others. This is a broad, ambitious interpretation [End Page 176] of prudence. It recuperates not only a classical vision of prudence but also one of politics. It rearranges other virtues to revolve in a constellation around prudence. In this reconstituted form, prudence reemerges to shine as "a crucial element of political leadership," the central political virtue.The book is divided into three parts: "Conceptual Frameworks," "Rhetorical Structures," and "Provisional Networks." All three of the sections are identified in structural terms, which is interesting since Hariman's conception of prudence as a primary political virtue is very agent-centered. The structures, however, provide the settings in which the political observers and actors perform. The first section provides a sample of the rich literature that focuses on philosophical concepts of prudence in earlier times and places. It begins with a chapter by Robert W. Cape Jr. that discusses "Cicero and the Development of Political Practice in Rome." This chapter is critical to the book, since it lays a part of the foundation. It is the first substantive essay and it must also make the case for combining calculative and performative prudence. Cape gives us a fine exposition of prudentia in the Roman context. Interestingly, he suggests that "prudentia is a contraction of providentia, "'foresight.'" (37).The virtue of prudence was typically associated with age and experience. Imprudence, on the other hand, was associated with youth, recklessness, and impropriety (37). Prudence involved knowledge of practical matters, law, and custom as well as proper speech, including rhetoric, and behavior. Prepon mattered. Prudence for Cicero, however, was much more than simply knowing how things work: it was ultimately the extended performance of justice on the public stage. The next chapter, by Eugene Garver, entitled "After Virtù: Rhetoric, Prudence, and Moral Pluralism in Machiavelli," moves the story of prudence from the late classical to the early modern period. As the title indicates, Garver's concern is also with the relation of... (shrink)

Although the Canadian legal system has many virtues, it has at least one major weakness – its judicial appointments and promotion systems. The paper begins by identifying six key values that need to be considered in order to assess the legitimacy of a judicial appointments process – independence, impartiality, representativeness, transparency, accountability and efficiency. In the following sections, through the use of three case studies of appointments to the Supreme Court of Canada, the superior courts of Nova (...) Scotia and a promotion to the Federal Court of Canada, we demonstrate that Canada has failed to live up to these values. We conclude by suggesting that recent reforms to the judicial appointments processes by the current government are an improvement, but that more radical reforms are essential to enhance public confidence in the integrity of Canada’s judicial appointments and promotion systems. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Law’s Virtue: Fostering Autonomy and Solidarity in American Society by Cathleen KavenyEric E. SchnitgerLaw’s Virtue: Fostering Autonomy and Solidarity in American Society By Cathleen Kaveny WASHINGTON, DC: GEORGETOWN UNIVERSITY PRESS, 2012. 304 PP. $29.95In Law’s Virtue, Cathleen Kaveny calls those in Western liberal countries to rethink their fundamental framework of ethics and law through the guiding principles of autonomy and solidarity, understood through the Catholic context of Thomistic (...) virtue. The law operates not as the fence of individual isolation as it does in Enlightenment rights theory, whereby liberty is preserved through negative restraint, but as the teacher of a limited form of the virtues of prudence and justice (52). The law teaches this thin form of prudence through autonomy, which Kaveny takes from Joseph Raz as “the capacity to be the ‘part-author’ of one’s own life” (53). Solidarity, pulling from Pope John Paul II, correlates to a learned justice, in that it “attend[s] to the unseen members” of the community (54). It recognizes that the good of the community and the good of individual members are inexorably intertwined.The opening epigram of the preface, which sets the tone for the whole work, is a quotation from Isidore of Seville found in Aquinas: “Law shall be virtuous, just, possible to nature, according to the custom of the country, suitable to place and time, necessary, useful; clearly expressed, lest by its obscurity it lead to misunderstanding; framed for no private benefit, but for the common good” (xi). Kaveny argues that the phrases “possible to nature” and “custom of the country” need more attention in pluralist, democratic societies, because law is morally formed by its constituent community and there are deep disagreements within those communities. This gives a direction for how Catholics, and all citizens, should attempt to influence laws in these democracies. Because the law is a form of consensus over time, it should use severe sanctions such as criminal law only to reinforce the consensus that it represents. Tort and tax law are less severe tools that can encourage the moral direction of society, which, when used well, maintain the consensus of the law but still allow it to be a moral teacher.Kaveny’s practical thinking in this text does have some seeds of radical change. When she moves to the practicalities of life issues in the law—such as abortion, euthanasia, and genetics—she argues that the “entire fabric of the Anglo-American legal system” needs to add the concept of the “vulnerable” person to the “reasonable person” (79). In addition, her reframing of life issues contends that the Catholic view of issues like abortion is too different from [End Page 212] the “custom of the country” to make a change to the virtues and practices of other citizens. Instead, attention to the support necessary for families and social difficulties of economic poverty represents a way of using the law as a moral teacher while recognizing its limits (89, 156, 209). The book concludes with an incisive look at voting, in which Kaveny argues that the idea of issues-based voting is wrongheaded; instead, she urges voters to consider that they are voting for an individual who will take a broad moral stance and make a broad set of decisions (197 ff.).The quality of Kaveny’s clear thinking and moral consistency makes this book a pleasure to read—even for those who may disagree about the nature of the law or the virtues that Christians should bring to political, legislative, and judicial systems. This text, from its depth of legal and theological commitments, sets a high bar for further dialogue.Eric E. SchnitgerFuller Theological SeminaryCopyright © 2015 Society of Christian Ethics... (shrink)

This article investigates the Neo-Confucian project of “reverse moral economy,” which aims to restore the ideal congruence between political power and moral virtue, by examining a political debate on the selection of the new Crown Prince and the incumbent ruler’s subsequent abdication that took place in Korea during the formative period of the Chosŏn 朝鮮 dynasty in light of the so-called “the Mencian trouble,” a compromise between Mencius’ ideal vision of Confucian virtue politics and his realistic concern with political stability. (...) After discussing how Korean Neo-Confucians were able to justify their choice of a more virtuous candidate in violation of the Lineage Law, which upheld father-son transmission as the constant norm, by judiciously balancing between the candidate’s virtue and the incumbent ruler’s recommendation, it articulates the Korean Neo-Confucian project of reverse moral economy from the standpoint of the constitutionality of the new dynasty. (shrink)

Richard J. Regan's new translation of texts from Thomas Aquinas' _Summa Theologica_ II–II--on the virtues prudence, justice, fortitude, and temperance--combines accuracy with an accessibility unmatched by previous presentations of these texts. While remaining true to Aquinas' Latin and preserving a question-and-answer format, the translation judiciously omits references and citations unessential to the primary argument. It thereby clears a path through the original especially suitable for beginning students of Aquinas. Regan's Introduction carefully situates Aquinas' analysis of these virtues within (...) the greater ethical system of the _Summa Theologica_, and each selection is introduced by a thoughtful headnote. A glossary of key terms and a select bibliography are also included. (shrink)

The paper argues that there is no fundamental incompatibility between the use of vouchers and managed market mechanisms in the distribution of education und the principled aims of egalitarian educational policy. It takes those aims to be equality of opportunity, education for autonomy, and democratic education, and shows in each case how a voucher scheme could accommodate the aim. It explains why a judiciously designed voucher scheme may constitute a more politically feasible method of achieving central egalitarian goals than attempts (...) to improve public provision, but does not endorse the use of voucher schemes. (shrink)

William Frankena has several times discussed, in his usual cautious and judicious manner, a contrast between two types of normative ethics: an ethics of “duty” and an ethics of “virtue.” Without claiming that actual philosophers have been pure exemplars of either type, he has tried to give a clear statement of these two possible and contrasting types of theory, and to expose their problems. His final view seems to be that a complete normative theory will combine elements of both, but (...) that an ethics of “duty” in some sense is more fundamental. Plato and Aristotle seem to differ from him in being more sympathetic to a “virtue-ethics.” Leslie Stephen went so far as to claim that satisfactory principles of duty cannot even be stated and that a moral philosopher spends his time better formulating an ideal of virtue. James Martineau is another classical figure more sympathetic to “virtue-ethics.”. (shrink)

The paper argues that there is no fundamental incompatibility between the use of vouchers and managed market mechanisms in the distribution of education und the principled aims of egalitarian educational policy. It takes those aims to be equality of opportunity, education for autonomy, and democratic education, and shows in each case how a voucher scheme could accommodate the aim. It explains why a judiciously designed voucher scheme may constitute a more politically feasible method of achieving central egalitarian goals than attempts (...) to improve public provision, but does not endorse the use of voucher schemes. (shrink)

While less common than narratives about their male counterparts, accounts of female avengers are scattered throughout Chinese literature and historiography. Nevertheless, despite being included in a variety of genres and modes of writing, the extant corpus of Tang and pre-Tang female avengers appear to share remarkably similar tropes, tensions, and outcomes. In this article, I will explore how three tensions are apparent across Tang and pre-Tang female avenger accounts through the case study of narratives about Xie Xiao’e 謝小娥, a woman (...) who seeks revenge after her father and husband are killed by bandits. Supernatural elements, cross-dressing, and judicial proceedings all seek to reduce the power and autonomy of the heroine, presenting us with a fascinating and rich example of the limits of revenge. It has been previously assumed that this is the sole example of a female avenger account preserved in two modes of writing, but this is not the case. A detailed comparison of the versions relating to Xie Xiao’e will act as a springboard to recategorize the corpus of female avenger accounts and in turn more amply reveal the variety of methods used to curtail, control, and Confucianize these women. (shrink)

Using St. Thomas Aquinas's natural law philosophy and Divine Exemplar argument to prompt new discussion of ethical questions that lawyers and judges should confront, the author delivers a complete occupational profile for the professional conduct of judges and lawyers. This text challenges current beliefs and suggests a return to the "roots" of the system, in which reason, virtue, and justice guide the law and its practice.

I argue that Hume's ethics can be characterized as a virtue ethics, by which I mean a view according to which character has priority over action and the principles governing action: virtuous character guides and constrains practical deliberation. In a traditional utilitarian or Kantian ethics, character is subordinate to practical deliberation: virtue is needed only to motivate virtuous action. I begin by outlining this approach in Aristotle's ethics, then draw relevant parallels to Hume. I argue that virtuous character in Aristotle (...) is understood in terms of "self-love." A true self-lover enjoys most the exercise of the characteristic human powers of judging, choosing, deciding and deliberating. A virtuous agent's self-love enables sizing up practical situations properly and exhibiting the virtue called for by the situation. But if an agent's character is defective, the practical situation will be misapprehended and responded to improperly. I argue that though Hume claims moral judgments are the product of sympathy, they are actually the result of a complex process of practical reflection and deliberation. Although Hume writes as though anyone can be a judicious spectator, there is reason to think that persons of calm temperament, who enjoy deliberation and have a facility for it, are more likely to perform the corrections in sentiments that may be necessary. If this is so, an agent's character has priority over his or her practical deliberations. (shrink)

Justice is a natural virtue. Well-functioning humans are just, as are well-ordered human societies. Roughly, this means that in a well-ordered society, just humans internalize the laws and social norms (the nomoi)--they internalize lawfulness as a disposition that guides the way they relate to other humans. In societies that are mostly well-ordered, with isolated zones of substantial dysfunction, the nomoi are limited to those norms that are not clearly inconsistent with the function of law--to create the conditions for human flourishing. (...) In a radically dysfunctional society, humans are thrown back on their own resources--doing the best they can in circumstances that may require great practical wisdom to avoid evil and achieve good. Justice is naturally good for humans--it is part and partial of human flourishing. All of these are natural ethical facts. "Natural Justice" develops these claims in four stages. Part I contextualizes the claim that justice is a natural virtue in relationship to David Hume's famous argument about deriving ought from is, G. E. Moore's open-question argument, and the so-called fact-value distinction. The upshot of the discussion in part I is the claim that there are no clearly decisive objections to existence of natural ethical facts. Part II traces the movement from neo-Aristotelian virtue ethics to virtue jurisprudence by articulating a theory of the judicial virtues. Among these are the virtues of practical wisdom and of justice. Practical wisdom or phronesis is best understood on the model of moral vision, which in the context of law is legal vision or situation sense. The virtue of justice is best understood as lawfulness. Just humans are law-abiding or nomimos--in that they internalize the widely shared and deeply held social norms of their social groups. This part concludes with the claim that a legally correct decision is the decision that characteristically would be rendered by a fully virtuous judge under the circumstances of the case. Part III argues that natural justice can be understood on the model of natural goodness as articulated in the work of Philippa Foot and Michael Thompson. The intuitive idea is that justice as lawfulness is naturally good for reason--using social creatures in human circumstances. This part also articulates and responds to a variety of objections. Part IV concludes by articulating the sense in which an aretaic theory of law that incorporates a natural virtue of justice as lawfulness can be viewed as an expression of the natural law tradition. The natural law idea that an unjust enactment is not a true law corresponds to two senses in which positive laws can fail to be nomoi (in the technical sense specified by virtue jurisprudence). First, a given enactment may contravene deeply held and widely shared social norms. Second, such enactments may be fundamentally inconsistent with the purpose of law--the promotion of human flourishing. (shrink)

The Aretaic Turn in Constitutional Theory argues that an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators. Part I, The Most Dysfunctional Branch, advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their commitment to particular (...) positions on particular issues and the fervor of their ideological passions. Part II, Institutionalism and Constitutional Interpretation, engages Cass Sunstein and Adrian Vermeule's recent essay, "Interpretation and Institutions." Sunstein and Vermeule contend that theories of constitutional interpretation are most fundamentally flawed because of their failure to take an institutional turn, but their supporting arguments lead to a related but quite distinct conclusion. Only a theory of judicial character can supply the diagnosis for the ills that Sunstein and Vermeule identify: constitutional theory must take an aretaic turn. Part III, Making the Aretaic Turn in Constitutional Theory, sketches an alternative approach to judicial review and constitutional interpretation that is rooted in contemporary virtue ethics. In Part IV, Constitutional Virtues and Vices, this sketch is given flesh and bones in the form of a theory of constitutional virtue and vice. Excellence in constitutional adjudication requires the virtues of judicial courage, judicial temperament, judicial temperance, judicial intelligence, and judicial wisdom (or phronesis). Most importantly, a virtuous constitutional interpreter must have the virtue of justice, which includes as components impartiality, lawfulness, and legal vision. Part V, The Aretaic Reconstruction of the Institutional Critique, returns to institutionalism as an approach to the theory of constitutional interpretation and argues that institutionalists cannot coherently refrain from making the aretaic turn. The article ends with speculation about the possibility of a path to the restoration of judicial virtue. (shrink)

This collection features 26 new essays on character from first-rate scholars in philosophy, psychology, economics, and law. The essays are elegantly written and combine forceful argumentation with original ideas on a wide range of questions, such as: "Is Aristotle's theory of character a moral theory?," "Are character traits in tension with personal autonomy," "How do traits differ from mental disorders?," "What is the role of gossip in character attribution?," and "Can businessmen be virtuous?" The chapters are organized thematically into 5 (...) sections, each prefaced by its own special introduction. In the introductions, the editor brings out often unexpected connections among different lines of argument pursued by the authors and raises important questions for further discussion. The collection as a whole offers students of character a unique opportunity to engage with some of the best contemporary work on the topic. (shrink)

Proceduralists hold that democracy has a non-instrumental value consisting in the ideal of equality incorporated by fair procedures. Yet, proceduralism does not imply that every outcome of a democratic procedure is fair per se. In the non-ideal setting of constitutional democracies, government and legislative decisions may result from factional conflicts, or depend on majoritarian dictatorships. In these circumstances, Supreme Courts provide a guardianship against contested outcomes by enacting mechanisms of checks and balances, constitutional interpretation and judicial review. Yet, in (...) virtue of this role, Supreme Courts exercise a form of epistocratic power, which rests at odds with the ideal of political equality. We analyse this dilemma and propose a solution, arguing that Supreme Courts do not run unrestrained decisions; rather their decisional power is bound to the protective function of fundamental rights, in which their constitutional mandate ultimately consists. (shrink)

A general practice of precedent is one that can plausibly apply to any well-functioning legal system. This practice, which can be grounded in the Rule of Law, needs to make it the case that courts always have a legal reason for following relevant precedent – even if the precedent is morally suboptimal, so long as it is not evil. Without this reason, a precedent may be treated as having no legal influence for the later court (‘the Null Model’), and this (...) runs counter to the Rule of Law. On top of this reason, courts may have a general legal obligation to follow precedent – stare decisis – but this risks entrenching morally bad decisions in the law. We need, therefore, a type of reason that lies in between the Null Model and stare decisis as a necessary step for any future justification of stare decisis. But how can courts have a legal reason for following morally suboptimal precedent? They can have that reason, I argue, in virtue of a specific judicial duty, positively laid down in a legal source, which aims to advance the Rule of Law in an institutionalised way. In this article, I aim to explain and justify that judicial duty. (shrink)

Antibiotic resistance (AR) is a major threat to public health and healthcare worldwide. In this article, we analyse and discuss the claim that taking actions to minimize AR is everyone's responsibility, focusing on individual moral responsibility. This should not be merely interpreted as a function of knowledge of AR and the proper use of antibiotics. Instead, we suggest a circumstantial account of individual responsibility for AR, where individuals do or do not engage in judicious antibiotic behaviour with different degrees of (...) voluntariness. Furthermore, we suggest a notion of responsibility as a virtue, in which individuals have the opportunity to develop a sensitivity towards the AR theme and, consequently, are capable of engaging, actively and voluntarily, in judicious antibiotic behaviour. The development of such sensitivity depends on the creation of adequate circumstances, that is individual capacities and availability of resources. (shrink)

Catholic legal and doctrinal tradition defined two main cases for the canonization of saints: until very recently, sainthood was related either to martyrdom or to the heroic practice of virtues, ascertained through a well-defined judicial procedure. In 2017, Pope Francis renewed this ancient tradition by introducing a third case, consisting in the “offering of life”, namely the sacrifice of one’s life in the name of charity, intended as Christian love for the others. The “offering of life” is placed (...) at the center of an ongoing process of mediation between papal authority, the judicial praxis of the causes for canonization, and ecclesiastic law. The introduction of this new type of sainthood can be explained in light of the growing difficulty to apply the two traditional grids of behavior established by the Church in the evaluation of the life of new kinds of persons who enjoy a widespread fame of sanctity, but are not conform to the strict jurisprudential criteria of martrydrom and heroicity. Therefore, the debate surrounding the “offering of life” entails a dialectics between the necessity of a rationalized set of models, providing precise—and thus evaluable—“narrative programs” and defining a circumscribed number of canonizable human types, and the unprecedented multiplication of instances of sanctity in the contemporary world. (shrink)

It is not easy to find a fair balance between inappropriate speech on the one hand and the appearance of constraint and inaccessibility on the other. Also judges must deal with this difficult task. They must take care not to endanger values that are protected to secure the functionality of justice. This article deals with questions of why and how judges can fulfil this task and what might happen if they fail to do so. The article argues in favour of (...) temperate speech using arguments from the fields of judicial ethics and normative ethics. It also offers examples of intemperate speech that might be dangerous to justice. Last but not least, the article mentions the relevance of judicial temperate speech for the concept of open justice thanks to which the judiciary might seek public confidence. (shrink)

In this eye-opening look at the doctor-patient decision-making process, physician and law professor Jay Katz examines the time-honored belief in the virtue of silent care and patient compliance. Historically, the doctor-patient relationship has been based on a one-way trust -- despite recent judicial attempts to give patients a greater voice through the doctrine of informed consent. Katz criticizes doctors for encouraging patients to relinquish their autonomy, and demonstrates the detrimental effect their silence has on good patient care. Seeing a (...) growing need in this age of medical science and sophisticated technology for more honest and complete communication between physician and patients, he advocates a new, informed dialogue that respects the rights and needs of both sides. In a new foreword to this edition of The Silent World of Doctor and Patient , Alexander Morgan Capron outlines the changes in medical ethics practice that have occurred since the book was first published in 1984, paying particular attention to the hotly debated issues of physician-assisted suicide and informed consent in managed care. (shrink)

A rigorous, authoritative new anthology which brings together some of the most significant contemporary scholarship on the theory of knowledge Carefully-calibrated and judiciously-curated, this strong and contemporary new anthology builds upon Epistemology: An Anthology, Second Edition (Wiley Blackwell, 2008) by drawing a concise and well-balanced selection of higher-level readings from a large, diverse, and evolving body of research. Includes 17 readings that represent a broad and vital part of contemporary epistemology, including articles by female philosophers and emerging thought leaders Organized (...) into seven thoughtful and distinct sections, including virtue epistemology, practical reasons for belief, and epistemic dysfunctions among others Designed to sit alongside the highly-successful anthology of canonical essays, Epistemology: An Anthology, Second Edition (Wiley Blackwell, 2008) Edited by a distinguished editorial team, including Ernie Sosa, one of the most influential active epistemologists Highlights cutting edge methodologies and contemporary topics for advanced students, instructors, and researchers. (shrink)

Hate speech law can be found throughout the world. But it is also the subject of numerous principled arguments, both for and against. These principles invoke a host of morally relevant features and practical considerations . The book develops and then critically examines these various principled arguments. It also attempts to de-homogenize hate speech law into different clusters of laws/regulations/codes that constrain uses of hate speech, so as to facilitate a more nuanced examination of the principled arguments. Finally, it argues (...) that it is morally fitting for judicial and legislative judgments about the overall warrant of hate speech law to reflect principled compromise. Principled compromise is characterized not merely by compromise over matters of principled concern but also by compromise which is itself governed by ideals of moral duty or civic virtue. (shrink)

The Peace Process in Northern Ireland is about to reach another milestone: the Consultative Group on the Past is due to publish a report in the autumn of 2008 on "the best way to deal with the legacy of the past in Northern Ireland" and to support the building of "a shared future." It is timely therefore to think again—and further—about what political expression forgiveness might find, using the concrete case of Northern Ireland today as grist for our conceptual mill. (...) This essay opens with two preliminaries: an account of what forgiveness is and how it relates to resentment, punishment, repentance, and reconciliation; and a brief summary of the "Troubles." It then proceeds to caution that reconciliation will have to be realized in the midst of persistent enmity; to explore what a Truth Commission might achieve, and the limits of it; to consider whether the discovery of fresh truth should issue in further judicial proceedings, and how far these will disturb the Peace Process; and to suggest that the British Government could erect public memorials to the dead on all sides. It concludes that in addition to Government action, there is need for the popular exercise of certain virtues—including grateful, hopeful patience, forgiveness-as-compassion, and public penitence. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Hume Studies Volume XXVI, Number 1, April 2000, pp. 179-181 A Puzzling Passage in "Why Utility Pleases" PHILLIP D. CUMMINS It could hardly be controversial that in "Why utility pleases," Section V of his Enquiry concerning the Principles of Morals, Hume purports to tell his readers why utility pleases. It is not controversial that in that section he rejected the deduction of morals from self-love, that is, the thesis (...) that utility pleases because actions and policies possessing it inevitably are in the actual or perceived selfinterest of the person who approves of them. This is not to deny there are interpretive issues. Nor is it to deny that there are passages which puzzle. Here is one: This deduction of morals from self-love, or a regard to private interest, is an obvious thought, and has not arisen wholly from the wanton sallies and sportive assaults of the sceptics. To mention no others, POLYBIUS, one of the gravest and most judicious, as well as most moral writers of antiquity, has assigned this selfish origin to all our sentiments of virtue. But though the solid, practical sense of that author, and his aversion to all vain subtilties, render his authority on the present subject very considerable, yet is not this an affair to be decided by authority, and the voice of nature and experience seems plainly to oppose the selfish theory. The quotation is from the new Oxford Philosophical Texts edition of the Enquiry edited by Tom L. Beauchamp, who is also responsible for the critical Phillip D. Cummins is at the Department of Philosophy, 269 English Philosophy Building, The University of Iowa, Iowa City, IA 52242-1408, USA. e-mail: [email protected] 180 Phillip D. Cummins edition. It should be noted that the quoted version agrees with both Nidditch's revised Selby-Bigge edition and the older but still useful Hendel edition. In short, this seems to be the standard wording. Nonetheless, the passage seems both to need correction and to be easily corrected. Hume presents Polybius as a highly respected defender of the selflove theory,1 one whose "authority on the present subject" is considerable. This asserted, he adds, "yet is not this an affair to be decided by authority, and the voice of nature and experience seems plainly to oppose the selfish theory." If we contrast the actual wording of the first conjunct to "yet is this an affair to be decided by authority," which expresses a genuine question, it is obvious that the first conjunct is a rhetorical question which implies that authority should decide the issue. The prior reference to Polybius seems to imply that he is the authority in question. Since, according to Hume, Polybius endorsed the selfish theory, the first conjunct itself seems to endorse the selfish theory. However, the second conjunct explicitly and directly challenges that very theory by asserting that both nature and experience oppose it. Thus, in the same sentential unit an appeal to authority is first endorsed, though it is in opposition to Hume's subsequent position, then rejected, as one would expect it to be, given that position. At worst there is inconsistency; at best a muddle. The simple correction is to rearrange three words in the first conjunct, replacing "is not this" with "this is not." These two phrases are generally used in opposition to one another; consider, for example, "Is not this the time to celebrate?" and "This is not the time to celebrate." The former grammatically is a question but its rhetorical function is to imply that it is indeed the time to celebrate, which the latter flatly denies. Note that in the present case, "yet this is not an affair to be decided by authority, and the voice of nature and experience seems plainly to oppose the selfish theory" expresses a claim perfectly in keeping with the argument that follows. Hume will appeal to nature and experience to oppose even those important authorities who endorse the selfish theory. It might be objected that my proposed correction is not needed because sense can be made of the key sentential unit, "yet... theory," as it stands. It might be argued that in the first... (shrink)

Defenders of legislative supremacy against judicial review have primarily invoked various virtues of legislative process – in particular, its deliberative qualities, the diverse perspectives and inputs it allows, and especially, its connection to a principle of democratic equality. However, I argue that such virtues have been overemphasised as justifications for legislative supremacy. Instead, I argue that insufficient attention has been paid to the form of legislation as a justification for giving legislatures the ‘final say’ on issues of (...) fundamental rights. Firstly, I argue that legal philosophy has underemphasised the extent to which legislative form, rather than legislative process, can mediate ‘majoritarian’ rule, and how this undermines the most commonplace arguments for rights-based judicial review of parliamentary legislation. Secondly, I suggest that the same formal attributes give legislation a virtue of political transparency which can be contrasted with the esotericism of constitutional jurisprudence, itself considered as a distinctive species of political domination. (shrink)

This book analyzes a rich and diverse body of philosophical and theological literature concerning the import of narrative for the understanding of morality. Nelson begins by examining the theses that to understand oneself, a tradition, and history as a whole, they must be understood in the context of a narrative. Recent philosophical writings on the relation of narrative to the moral concepts of social groups and individuals—including Alasdair MacIntyre's proposal for the rehabilitation of an ethic of virtue shaped by narrative—are (...) explored. Issues discussed include the freedom of moral agents in relation to their narratives, the relation between narrative and universal moral rules, and the problem of relativism. Next, Nelson classifies theological uses of narrative as belonging to either a liberal-universalistic or postliberal-particularistic tradition and considers the implications of construing scripture as narrative for the problematic relation between scripture and ethics. The work of Stanley Hauerwas, the foremost narrativist in Christian ethics, is analyzed at length. Nelson argues that while narrative is a necessary focus, it does not exhaust the methodological agenda. Narrative is not, as its advocates sometimes suggest, a universal solvent for every theological problem and disagreement. An adequate Christian ethics must not lose sight of the universal, narrative-independent features of morality. Since the realm of the moral is an interweaving of narrative-dependent and narrative-independent features, Christian ethics stands to profit from both narrativist and rationalist insights. The role of narrative is demonstrably a major topic of conversation across several fields in religious studies today. Particularly designed for scholars in ethics, theology, and the philosophy of religion, the book is a reliable guide to an expanding literature and a judicious introduction to these interdisciplinary discussions. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Picking Up the Pieces of a Shattered Culture:Abandoning Sartre for AquinasR. E. HouserI expect to die in my bed, my successor will die in prison, and his successor will die a martyr in the public square. Then his successor will pick up the shards of a ruined society and slowly help rebuild civilization, as the Church has done so often in human history.—Francis Cardinal George (2010)Here I propose to (...) present a feature of the ethics of Thomas Aquinas, his ethical doctrine of virtue, concentrating on the four cardinal virtues—justice, prudence or good practical judgment, courage, and temperance. Plato first selected them as the four premier virtues, but they go back at least to Homer, for whom wily Odysseus exemplified prudence, warlike Achilles courage, old Nestor justice, Penelope and Telemachus, Odysseus' wife and son, temperance. And I offer them as central to living the morally good life required to "rebuild civilization" in an America that so fair and judicious a man as Cardinal George could call a "ruined society." To see the need for Thomas's solution, we must begin with the problem. Now, all societies depend upon the deep and fundamental ideas of the most important thinkers, prophets and sages, saints, and yes, even philosophers. Their ideas "trickle down" to influence regular folk, like you and me, those who whose hard work actually makes a society thrive, or die. And when those fundamental ideas change, the moral principles of those who embrace those ideas change, and consequently their actions change, and as a result the wider society in which they live changes, for better or worse. Such effects can now be felt across America [End Page 135] by all; but most of us are unaware of the primary intellectual agents of these changes, since they operate at the level of fundamental ideas, not politics or business or day-to-day life. And often their originators have died before the ideas reach full cultural force. So, ignorance of history makes it difficult to deal with present problems caused by those ideas.My first conclusion will be that a major cause of the current coarsening of our culture is the group of ideas of the French philosopher Jean Paul Sartre, even though most Americans have never heard of him, and most of those who recognize his name have not read his works carefully enough to see the connection. Why Sartre? In the honors program at my university, I had a bright young lady of Muslim heritage who had gone to a lycée, one of France's elite classical secondary schools. "Did you read the classics?" "Yes." Expecting Montaigne or Pascal, I asked, "Who?" Her answer: "Sartre." So let us begin with the theory and practice of Sartre and his long-time lover Simone Beauvoir, whose book The Second Sex was an intellectual spark for the women's liberation movement. Then we turn to some real-life examples of Sartrean influence on ourselves and American culture. Finally, for the best remedy for non-Christian and Christian alike, I recommend Aquinas's doctrine of virtue, when taken in its full scope.Sartre's Ethics of Absolute FreedomIn 1946, the year I was born, Sartre gave a lecture to a meeting of French librarians, which became his most popular book, Existentialism is a Humanism. There he laid out the core of his thought about God, humans, and their ethical behavior. Here I arrange his main ideas in an order that facilitates comparison with Aquinas, beginning with his view of human ontology and proceeding to its impact on the four cardinal virtues.Human OntologySartre turned his back on the traditional metaphysical view that every creature is an individual substance defined by a nature or essence it has in common with all other things of that type. In his "first principle of existentialism," Sartre skips over other animate things, plants and animals, and compares humans to inanimate objects:Let us consider... a book or a paper-cutter: here is an object made by an artisan whose inspiration came from a concept.... One cannot postulate a man who makes a paper-cutter but does not know what it is... (shrink)

Evils, both large and small, are a constant feature of human life. This book is about responding to them and in particular about responding to moral evils, that is, those produced by the deliberate acts of human beings. Prominent in our repertoire of responses to moral evil are forgiveness and punishment, and these, with the numerous conceptual and moral problems they raise, are at the heart of the study in this book. After discussing the idea of evil, Scarre turns to (...) the meaning of forgiveness and the conditions for granting it. He defends a broadly utilitarian approach that stresses the role of forgiveness in repairing the damage that has been caused by injurious or offensive behaviour. Scarre then considers the controversial virtue of mercy and the propriety of revengeful behaviour and resentful attitudes. Finally, he deals with the purpose and justification of judicial punishment, paying particular regard to the appropriate treatment of war criminals. In this timely and sensitively written book, Scarre pays close attention to the existing literature and appraises both contemporary and classical contributions to the debate. This book makes an original contribution to an area of ethical thought that has been attracting an increasing amount of attention from philosophers, jurists and political thinkers. (shrink)

Psychologists have recently begun to study the psychological dimensions of judging, but to date almost all of the research has been on lay experimental subjects. Implicit in the research, therefore, is that the judge's attributes as a human bring are more important than the judge's attribute's as lawyer and/or as judge in explaining judicial behavior. This may possibly be true, and it is relatively consistent with a Legal Realist understanding of judges and judging, but there remains a need for (...) research directed specifically to the question whether judges by virtue of legal training, self-selection to judging, or judicial experience think and reason and make decisions differently from lay people. More specifically, when judges engage in tasks typically reserved to judges - finding and interpreting the relevant law, most prominently - are their cognitive processes different from those of lay people engaged in analogous tasks, and from those of lay people engaged in different and more fact-focused tasks? Until we can answer these questions based on systematic research, we will not know whether there is a psychology of judging at all, as opposed simply to general psychology applied to some of the tasks in which judges, like all other decision makers, engage. (shrink)