The main focus of this essay is the development of a virtue-centred theory of judging. The exposi... more 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.
This paper explores a series of thought experiments that postulate the ex-istence of “artificiall... more This paper explores a series of thought experiments that postulate the ex-istence of “artificially intelligent law.” An artificially-intelligent legal system is de-fined as one with three functional capacities: 1. The system has the capacity to gen-erate legal norms. 2. The system has the capacity to apply the legal norms that it generates. 3. The system has the capacity to use deep learning to modify the legal norms that it generates. The paper then considers the question whether such a sys-tem would be desirable as a matter of legitimacy and justice. The core idea of the paper is that the key to the evaluation of artificially intelligent law is to focus on the functional capacities of the system in comparison to comparable human systems, such as regulatory agencies.
This article investigates a virtue-centered approach to normative legal theory in the context of ... more This article investigates a virtue-centered approach to normative legal theory in the context of legislation. The core idea of such a theory is 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. Law can promote flourishing in several ways. Because peace and prosperity are conducive to human flourishing, legislation should aim at the establishment and maintenance of these conditions. The human excellences (or virtues) are developed in childhood and young adulthood by stable and nurturing families and by educational institutions: therefore, the law should support and foster families and schools. Although some critics have argued that an aretaic theory of legislation must support so-called “vice laws,” this is not the case. A virtue-centered approach must take into account the effects produced by criminalization of alcohol, drugs, gambling, and prostitution. If prohibition is counterproductive, then human flourishing may best be supported by a regime of decriminalization or legalization, accompanied by programs of education, treatment, and support.
This Essay sketches an originalist methodology using ideas from legal theory and theoretical ling... more This Essay sketches an originalist methodology using ideas from legal theory and theoretical linguistics, including the distinctions between interpretation and construction and between semantics and pragmatics. The Essay aims to dispel a number of misconceptions about the methods used by originalists. Among these is the notion that originalists rely on dictionary definitions to determine the communicative content of the constitutional text. Although dictionaries may play some role, the better approach emphasizes primary evidence such as that provided by corpus linguistics. Another misconception is that originalists do not consider context; to the contrary, the investigation of context plays a central role in originalist methodology. Part I of this Essay articulates a theoretical framework that draws on ideas from contemporary legal theory and linguistics. Part II investigates methods for determining the constitutional text's semantic content. Part III turns to methods for investigating the role of context in disambiguating and enriching what would otherwise be sparse semantic meaning. Part IV describes an originalist approach to constitutional construction. The Essay concludes with a short reflection on the future of originalist methodology.
See generally PAUL GRICE, STUDIES IN THE WAY OF WORDS (1989) (collecting many of Grice's most imp... more See generally PAUL GRICE, STUDIES IN THE WAY OF WORDS (1989) (collecting many of Grice's most important papers on the philosophy of language). 3 Kar & Radin, supra note 1, at 1142-43. The capitalization of "Shared Meaning Analysis" conveys that I am using this phrase as a proper name for Kar and Radin's theory. I use this same convention to name other theoretical positions-for example "Public Meaning Originalism"-in the discussion that follows. 4 The idea of a theory of contractual communication is sometimes raised by legal scholars. See,
PROCEDURAL JUSTICE 185 12. Cf. RANDY E. BARNETT, THE STRUCTURE OF LIBERTY (1998) (discussing anal... more PROCEDURAL JUSTICE 185 12. Cf. RANDY E. BARNETT, THE STRUCTURE OF LIBERTY (1998) (discussing analagous problems of knowledge, interest, and power). SOLU12.DOC 11/30/2004 9:41 AM 2004] PROCEDURAL JUSTICE 187 Given the problems of imperfect knowledge, incomplete specification, and partiality, legal disputes will arise. Conversely, with perfect knowledge, complete specification, and impartiality, almost every dispute could settle. 13 From the ex post perspective, the role of procedure is to 13. The sentiment that every dispute could settle is an exaggeration. Settlement might be thwarted if the legal system provided incentives for delay, for example, if the defendant was not SOLU12.DOC
WORKS OF THOMAS HOBBES 1, 3 (William Molesworth ed., London, J. Bohn 1839); see also THOMAS HOBBE... more WORKS OF THOMAS HOBBES 1, 3 (William Molesworth ed., London, J. Bohn 1839); see also THOMAS HOBBES, LEVIATHAN (1670), reprinted in 3 THE ENGLISH WORKS OF THOMAS HoB-BES 1, supra, at 29-32 [hereinafter LEVIATHAN] (equating reason with computation or "reckoning of the consequences"). Hobbes uses "ratiocination" to mean reasoning.
The main focus of this essay is the development of a virtue-centred theory of judging. The exposi... more 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.
This paper explores a series of thought experiments that postulate the ex-istence of “artificiall... more This paper explores a series of thought experiments that postulate the ex-istence of “artificially intelligent law.” An artificially-intelligent legal system is de-fined as one with three functional capacities: 1. The system has the capacity to gen-erate legal norms. 2. The system has the capacity to apply the legal norms that it generates. 3. The system has the capacity to use deep learning to modify the legal norms that it generates. The paper then considers the question whether such a sys-tem would be desirable as a matter of legitimacy and justice. The core idea of the paper is that the key to the evaluation of artificially intelligent law is to focus on the functional capacities of the system in comparison to comparable human systems, such as regulatory agencies.
This article investigates a virtue-centered approach to normative legal theory in the context of ... more This article investigates a virtue-centered approach to normative legal theory in the context of legislation. The core idea of such a theory is 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. Law can promote flourishing in several ways. Because peace and prosperity are conducive to human flourishing, legislation should aim at the establishment and maintenance of these conditions. The human excellences (or virtues) are developed in childhood and young adulthood by stable and nurturing families and by educational institutions: therefore, the law should support and foster families and schools. Although some critics have argued that an aretaic theory of legislation must support so-called “vice laws,” this is not the case. A virtue-centered approach must take into account the effects produced by criminalization of alcohol, drugs, gambling, and prostitution. If prohibition is counterproductive, then human flourishing may best be supported by a regime of decriminalization or legalization, accompanied by programs of education, treatment, and support.
This Essay sketches an originalist methodology using ideas from legal theory and theoretical ling... more This Essay sketches an originalist methodology using ideas from legal theory and theoretical linguistics, including the distinctions between interpretation and construction and between semantics and pragmatics. The Essay aims to dispel a number of misconceptions about the methods used by originalists. Among these is the notion that originalists rely on dictionary definitions to determine the communicative content of the constitutional text. Although dictionaries may play some role, the better approach emphasizes primary evidence such as that provided by corpus linguistics. Another misconception is that originalists do not consider context; to the contrary, the investigation of context plays a central role in originalist methodology. Part I of this Essay articulates a theoretical framework that draws on ideas from contemporary legal theory and linguistics. Part II investigates methods for determining the constitutional text's semantic content. Part III turns to methods for investigating the role of context in disambiguating and enriching what would otherwise be sparse semantic meaning. Part IV describes an originalist approach to constitutional construction. The Essay concludes with a short reflection on the future of originalist methodology.
See generally PAUL GRICE, STUDIES IN THE WAY OF WORDS (1989) (collecting many of Grice's most imp... more See generally PAUL GRICE, STUDIES IN THE WAY OF WORDS (1989) (collecting many of Grice's most important papers on the philosophy of language). 3 Kar & Radin, supra note 1, at 1142-43. The capitalization of "Shared Meaning Analysis" conveys that I am using this phrase as a proper name for Kar and Radin's theory. I use this same convention to name other theoretical positions-for example "Public Meaning Originalism"-in the discussion that follows. 4 The idea of a theory of contractual communication is sometimes raised by legal scholars. See,
PROCEDURAL JUSTICE 185 12. Cf. RANDY E. BARNETT, THE STRUCTURE OF LIBERTY (1998) (discussing anal... more PROCEDURAL JUSTICE 185 12. Cf. RANDY E. BARNETT, THE STRUCTURE OF LIBERTY (1998) (discussing analagous problems of knowledge, interest, and power). SOLU12.DOC 11/30/2004 9:41 AM 2004] PROCEDURAL JUSTICE 187 Given the problems of imperfect knowledge, incomplete specification, and partiality, legal disputes will arise. Conversely, with perfect knowledge, complete specification, and impartiality, almost every dispute could settle. 13 From the ex post perspective, the role of procedure is to 13. The sentiment that every dispute could settle is an exaggeration. Settlement might be thwarted if the legal system provided incentives for delay, for example, if the defendant was not SOLU12.DOC
WORKS OF THOMAS HOBBES 1, 3 (William Molesworth ed., London, J. Bohn 1839); see also THOMAS HOBBE... more WORKS OF THOMAS HOBBES 1, 3 (William Molesworth ed., London, J. Bohn 1839); see also THOMAS HOBBES, LEVIATHAN (1670), reprinted in 3 THE ENGLISH WORKS OF THOMAS HoB-BES 1, supra, at 29-32 [hereinafter LEVIATHAN] (equating reason with computation or "reckoning of the consequences"). Hobbes uses "ratiocination" to mean reasoning.
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