The law of duty and the virtue of justice.(SYMPOSIUM)

Introduction

It is a special pleasure to once again engage in conversation with George Fletcher. Besides being intellectually indebted to him both as a student and young scholar, Fletcher, in person and in work, constantly teaches by his love of ideas and willingness to engage others as partners in the intellectual enterprise. Most of all, Fletcher has gifted to students and colleagues alike the tremendous breadth and ambition of his curiosity. It is this trait that most powerfully shows in his newest project.

It is, furthermore, a fortunate time to have a searching mind re-examine some of the fundamental questions that continue to challenge our criminal law practices. After years of neglect, criminal law theorists have recognized that theories of criminal punishment cannot be conducted simply as an exercise in moral inquiry. Blameworthiness may be a matter of moral theory but legal punishment is a matter of political morality. On an interpersonal level we may be obligated to take into account the total moral situation of those we punish. For example, a friend's particularly strong will may make us condemn him or her all the more for giving in to temptation. In contrast, efforts to find guilt beyond a reasonable doubt, punish offenders equally and Control the introduction of certain evidence are requirements of the relationship one has with the state.

It is this distinction Fletcher brings to the fore in his new text, The Grammar of Criminal Law. (1) First, Fletcher asserts that moral questions simpliciter become relevant in law only when the law directly references them--a claim that resonates within analytical jurisprudence. (2) Secondly, building on Kant's claim that an action must be autonomously willed to have moral worth, Fletcher claims that the state cannot coerce a person to behave morally. (3) Fletcher cashes this out by asserting that the political must precede the moral. Last, and perhaps most important for him, Fletcher's project places the preceding claims into a unified structure of criminal law across a number of cultures. He creates, in other words, a universal grammar of criminal law. Together, Fletcher's contentions hint at an ambitious project, a project that appropriately delineates the boundaries between valid criminal law and morality across a broad cultural spectrum.

Fletcher's project comes at a particularly pregnant moment. The trench warfare in moral and political philosophy between deontological and consequentialist regimes has reached a stalemate (or perhaps just become stale), increasingly resulting in each side ignoring the other. (4) Furthermore, in light of what some have called a degenerating research program, there has been an explosion of legal theorists who offer a third way. Rather than focusing on longstanding fights between consequentialists and deontologists, aretaic or virtue theorists are now seeking to construct a legal theory by applying the insights of virtue ethics to law. (5) By insisting on the importance of virtue to the aims of law, these aretaic legal theories challenge the claims upon which Fletcher's project relies.

In its broadest strokes, virtue ethics argues that, unlike consequentialism or deontology, ethical decisions cannot be adequately described by a decision-making procedure. There is no singular or complex set of 'goods' that can be maximized to arrive at a correct moral decision. Nor is there any categorical imperative that will lead one through the thicket of thorny questions to morally correct solutions. Virtue ethics is committed, instead, to moral particularism, the view that correct solutions to moral challenges lie in the appropriate weighing of all the morally relevant features of that particular situation by one who is properly attuned. Connected to the importance of proper moral insight, virtue theory is also committed to weighing not only our actions or intentions but also our dispositions, standing goals and ends. Thus, for virtue theorists, our personal characters hold moral importance in a unique way. Ultimately, virtue theorists claim, the moral measure of particular actions, decisions, norms, habits, and law lies in the extent to which they contribute to the flourishing of persons and societies. (6)

Given its promise to bring our jurisprudential thinking into harmony with our moral intuitions, aretaic theory deserves serious attention. Elsewhere I have challenged aretaic legal theories on their descriptive fidelity and prescriptive attractiveness. (7) In particular, I have argued that character models of punishment lead us to dangerous punishment regimes that all too easily mix a view of permanently flawed character with our ugliest racial and class discriminations. Such pernicious approaches to punishment cannot be reconciled with our liberal commitments,s Instead, a jurisprudential model that highlights law's coercive nature restricts the nature of the reasons that can justify legal punishment and commits us to a robust and revitalized liberalism?