Is there any room for the application of virtuous deliberation in legal reasoning and especially in judicial reasoning? Legal positivists such as Frederick Schauer are inclined to think that the ethics of virtues (EV) endangers the generality of rules that characterize the ‘rule of law’. I believe there is room for different models of application of the EV to legal reasoning. Lawrence Solum offers a virtue-centred jurisprudence that shows how many virtues can play important tasks in judicial deliberation. He claims to offer a ‘thick’ account of the virtues but I confront his views with Hock Lai’s account of epistemic and moral virtues in verdict deliberation, finding in the latter an emphasis on the emotional side of the virtues that is not central in Solum’s theory. I stress the point that good legal reasoning cannot help employing the virtues in deliberation and that this employment, though particularistic to some extent, does not necessarily contrast with the generality of law. Epistemic qualities play a crucial role in adjudication but not at the cost of undermining the stability of the law.
SCHAUER’S LEGAL POSITIVISM AND THE ETHICS OF VIRTUES
MICHELE MANGINI
2018-01-01
Abstract
Is there any room for the application of virtuous deliberation in legal reasoning and especially in judicial reasoning? Legal positivists such as Frederick Schauer are inclined to think that the ethics of virtues (EV) endangers the generality of rules that characterize the ‘rule of law’. I believe there is room for different models of application of the EV to legal reasoning. Lawrence Solum offers a virtue-centred jurisprudence that shows how many virtues can play important tasks in judicial deliberation. He claims to offer a ‘thick’ account of the virtues but I confront his views with Hock Lai’s account of epistemic and moral virtues in verdict deliberation, finding in the latter an emphasis on the emotional side of the virtues that is not central in Solum’s theory. I stress the point that good legal reasoning cannot help employing the virtues in deliberation and that this employment, though particularistic to some extent, does not necessarily contrast with the generality of law. Epistemic qualities play a crucial role in adjudication but not at the cost of undermining the stability of the law.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
