Virtue Jurisprudence and the American Constitution

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INTRODUCTION

For most of the current period of legal thought, legal realism or instrumentalism have been the strongest forces at work in the field. (1) This has coincided with the rise in popularity of the theories of deontology or consequentialism in the field of moral philosophy. However, since Elizabeth Anscombe's famous 1958 paper Modern Moral Philosophy was published, (2) the theory of virtue ethics (3) has captured a small but growing group of adherents. Moral philosophy, of course, is necessarily and intricately tied to legal theory, and because of this, a corresponding theory is slowly developing in legal academia. For example, Lawrence Solum has already written of the effect of virtue jurisprudence on some areas of the law, (4) and together with Colin Farrelly, has called for a return to the principles of virtue jurisprudence as the basis of law. (5) At best, this project is in utero. (6)

Virtue ethics is not, of course, a new field. In one form, its roots in western thought can be traced as far as Plato; (7) however, the treatment given to it by his pupil Aristotle received more attention and is generally regarded as the true birth of the theory. (8) Most early Christians disregarded Aristotelian and other Greek philosophies as pagan, and therefore the theory of virtue and law proposed by Aristotle fell into disfavor among western cultures. (9) The next serious treatment of the theory was in the medieval period, when St. Thomas Aquinas revived peripatetic thought and gave his own detailed account of how exactly the flourishing of human virtue was the goal of government, as well as what a regime was and was not permitted to do in pursuit of this goal. (10)

This outline, while by no means exhaustive of the literature on the interaction of virtue and the law, provides a brief sketch of the primary influences on the field of virtue ethics from the pre-Enlightenment western canon. Until the recent treatment of the field, it had remained largely undeveloped from these roots. Recently, as noted above, some have attempted to build on this tradition and adapt our current legal system to virtue ethics, thereby creating a framework which most actively and effectively promotes the common good. (11) In many areas of the law, it remains to be seen or fully explored what sort of effect virtue jurisprudence might have and what the broader implications will be.

One of these areas is constitutional interpretation. While the effect of virtue jurisprudence on constitutional adjudication has been explored, (12) the question of whether or not the Constitution may reasonably be interpreted as consistent with the ends of law according to virtue jurisprudence is valid and as yet little-discussed. If the Constitution is incompatible with virtue jurisprudence, then we must choose whether to have our cake or eat it. Such a discovery would not, of course, invalidate the theory of virtue jurisprudence; it would instead require us to conclude that the Constitution does not have a sturdy basis in a valid moral philosophy. (13) For many Americans, this choice between the Constitution and virtue ethics is easy: the Constitution functions neatly enough and is dear enough that it is the clear selection over what is, to most Americans, a nebulous and relatively unknown philosophical mindset.

This Note will argue, however, that the two are not only compatible but ideally paired. This is not to say that adopting virtue jurisprudence as the philosophical foundation of the Constitution would be without consequence. Rather, it will argue that the Constitution is compatible with virtue jurisprudence if the reader interprets it in a particular way which is consistent with the founders' general worldview and beliefs. This Note will not attempt to establish that virtue jurisprudence is a superior system to any other, nor that the constitutional interpretation it provides ought to be the preferred method. Instead it will give a theoretical framework by which we as a people might base our Constitution on virtue jurisprudence, if we desired to do so. …