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a sweeping historical survey: the original legal realist movement of the 1920s and
1930s gave way to the law and process synthesis of the 1950s and 1960s, which in
turn was challenged by the indeterminacy thesis advanced by critical legal studies
(CLS) in the 1980s. And CLS gave way to a blistering critique of implausible claims
about radical indeterminacy in the 1990s, only to see realist cynicism reach a new
zenith in the wake of the U.S. Supreme Court™s decision in Bush v. Gore.
Contemporary legal theory is of two minds about realism and formalism. The
practitioners of legal theory have incorporated the standard realist moves into the
conceptual toolbox. Who hasn™t written an article or taught a class in which one
shows that a formal legal distinction masks decision making that is really driven by
other considerations “ ideology, morality, politics, policy, economics, or something
else? We are all realists. But legal formalism is surprisingly resilient to attempts
to declare its demise. Once formalism is rescued from the realist caricature of a
self-contained system of pure deduction, it is hard to deny that (1) there are easy
cases, and (2) while the law may underdetermine judicial decision making, it is
rarely (or never) radically indeterminate. And neoformalism, in various forms, is
on the rise. Originalism, textualism, and plain meaning “ these are the watchwords
124 Lawrence B. Solum

of the neoformalists, a group that makes up in prominence and attention what it
may lack in numerosity.
In summary, contemporary legal theory can be characterized as at an impasse or
stuck in a rut. The two antinomies correspond to the sticking points, the theoretical
junctures beyond which contemporary legal theory seems unable to move.

THE ARETAIC TURN IN LEGAL THEORY
There is a striking parallel between the state of contemporary legal theory after
the turn of the millennium and the situation of modern moral philosophy in
1958, when Elizabeth Anscombe wrote her famous essay Modern Moral Philos-
ophy. Modern moral philosophy, Anscombe argued, has involved a competition
between two great families of moral theories, consequentialism and deontology.
Both views face severe dif¬culties and each provides a powerful critique of the
other. Consequentialism has the advantage of providing a method that, in prin-
ciple, is capable of resolving moral disputes, but it purchases its discriminatory
power by leaving no room for inviolable human rights and independent consider-
ation of fairness. Deontology has the disadvantage of an uncertain method, and at
least sometimes seems to exclude consideration of consequences that seem either
relevant to or dispositive of the choice that must be made. How are we to overcome
this aporia? Anscombe (1958: 40) famously suggested that after consequentialism
and deontology had been exhausted, moral philosophy “might remain to look for
˜norms™ in human virtues.” This suggestion was one important impetus for the
aretaic turn in moral philosophy.
And what of the state of contemporary legal theory? Most readers will recognize
the eerie parallels between twenty-¬rst-century legal scholarship and Anscombe™s
sketch of the predicament of modern moral philosophy. The two antinomies
of contemporary legal theory capture persistent controversies that have proved
resistant to resolution (or even clari¬cation) through the practice of reasoned
argument. In the less theoretical corners of the legal academy, many believe that
legal scholars choose their position with respect to these antinomies on the basis of
an existential leap as opposed to reasoned argument. Even in the pages of learned
journals and in the introduction to learned monographs, readers may limn the
contours of a struggle where rhetorical ¬‚ourish and name-calling take the place of
careful scholarly analysis.
Anscombe™s suggestion was one of many factors leading to renewed interest in
Aristotle™s moral philosophy and the development of contemporary virtue ethics.
Important early work was done by Philippa Foot, Peter Geach, and others. More
recently, major contributions have been made by Julia Annas, Rosalind Hurst-
house, Nancy Sherman, Michael Slote, Christine Swanton, and many, many others.
Aristotle viewed his ethical theory as continuous in an important way with his biol-
ogy. Just as a biologist might ask about the characteristics of a well-functioning
antelope or lion, so Aristotle™s ethics can be seen as asking the question, What are
the characteristics of a well-functioning human? And his politics extends this ques-
tion to, What are the characteristics of a well-functioning community of humans?
Aristotle™s naturalism poses many questions for our assessment of his theory, but
The Aretaic Turn in American Philosophy of Law 125

one of those questions is this: because we now reject much of what Aristotle had
to say about human biology and psychology, doesn™t this undermine his account
of the virtues? I am not going to answer that question, because contemporary
virtue ethics provides a way for the project of virtue jurisprudence to avoid it. In
a sense, the point of contemporary virtue ethics is to ground our understanding
of the virtues in contemporary biology and psychology. One important agenda of
contemporary virtue ethics is to develop an account of the virtues that is consistent
with modern science. And this grounding may entail some important divergence
between contemporary theories and Aristotle™s account.
Just as moral philosophy has made the aretaic turn, so, too, contemporary legal
theory has begun to turn to virtue jurisprudence, the name we can give to an
aretaic or virtue-centered theory of law. For virtue jurisprudence, the ¬nal end
of law is not to maximize preference satisfaction or to protect some set of rights
and privileges: the ¬nal end of law is to promote human ¬‚ourishing “ to enable
humans to lead excellent lives. The central thesis of virtue jurisprudence can be
summarized as follows: the fundamental concepts of legal philosophy should not
be welfare, ef¬ciency, autonomy, or equality; the fundamental notions of legal
theory should be virtue and excellence.

THE JUDICIAL VIRTUES
General virtue jurisprudence would include at least the following: (1) an aretaic
theory of legislation, in other words, a virtue-centered account of the ends of law,
(2) an aretaic theory of the role of law in the virtue of justice, and (3) an aretaic
theory of adjudication; that is, a virtue-centered account of the proper resolution
of legal disputes. Special virtue jurisprudence would offer virtue-centered theories
of particular areas of law such as torts (found in recent work by Heidi Li Feldman)
or criminal law (found in the work of Kyron Huigens and the critique offered by
Antony Duff). On this occasion, we can use a virtue-centered theory of judging as
illustrative of the content of virtue jurisprudence. An aretaic theory of adjudication
begins with the judicial virtues “ the qualities of mind and will that are constitutive
of excellent judging.
There is disagreement about the qualities that make for good judging, but
before we discuss the controversial judicial virtues, we can quickly survey those
judicial virtues and vices on which there is likely to be widespread agreement. One
judicial vice on which there is likely to be near-universal agreement is corruption;
incorruptibility is surely a judicial virtue. Cowardly judges will be disposed to
render decisions based on fear of physical danger or social pressure; we can agree
that courage is a judicial virtue. Judges are likely to ¬nd themselves in situations
where a hot temper could produce intemperate actions. In the face of provocation,
a judge with an anger-management problem may ¬‚y off the handle and misapply
the law. Aristotle identi¬ed proates or “good temper” as the corrective virtue for
the vice of bad temper.
Can anyone doubt that stupidity is a judicial vice? Judging is the kind of task that
sometimes requires extraordinary intelligence. Both law and facts can be complex.
Only a judge with intelligence will be able to sort out the complexities of the rule
126 Lawrence B. Solum

against perpetuities or penetrate the mysteries of a complex statute. But more than
intelligence is required. A truly excellent judge must also be learned in the law,
because one cannot start from scratch in each and every case and because there is
at least some truth to the notion that the law is a seamless web. To put these same
points the other way round: stupid and ignorant judges will be error prone, likely
to misunderstand and misstate the law, and unlikely to make ¬ndings of fact that
are correct.
One advantage of a theory of judicial excellence is that it reveals a large zone of
agreement. For all practical purposes, we can agree that judges should be incor-
ruptible, courageous, good tempered, and smart. But these (mostly uncontested)
virtues do not tell the whole story about judicial excellence. Even if we agree in
our judgments about who the very worst judges are “ the corrupt, ill-tempered,
cowardly, lazy, incompetent, and stupid ones “ there are strong and persistent
disagreements about who the best judges are. The partisans of Lord Coke may
deride the accomplishments of Lord Mans¬eld; the admirers of Justice Breyer may
be among the critics of Justice Scalia.
Disagreements about judicial excellence are typically rooted in two interrelated
disagreements about the nature of judicial virtue. The ¬rst disagreement is about
the nature of the virtue of justice. The second disagreement concerns the role of
equity and practical wisdom. On the one hand, some disagreements about judicial
excellence turn out to be disagreements about and within conceptions of the virtue
of justice “ qualities that some call justice, others see as unjust. On the other hand,
other controversies hang on differences in the understanding of the role of practical
wisdom in judging: some believe that wise judges will range far from the rules in
the name of equity, while others believe that equity should be tightly constrained
by the rule of law.

THE VIRTUE OF JUSTICE
An excellent judge is just; a judge who lacks the virtue of justice has a serious
defect. At this level of abstraction, the virtue of justice is likely to be the object of
widespread agreement. But what does the virtue of justice require? In this section, I
will examine two different conceptions of the virtue of justice: justice as lawfulness
and justice as fairness.
The fairness conception of the virtue of justice begins with the premise that the
just and the lawful are (or should be) separate and distinct. Therefore, humans
with the virtue of justice will act fairly even when the lawful result would be
otherwise. This does not mean that a judge with the virtue of justice as fairness
would disregard the law entirely. The existence of legal norms will frequently give
rise to considerations of fairness that will transform the moral landscape, creating
salient reasons of fairness that motivate a judge who is fair to act in accord with
the law.
Nonetheless, the fairness conception faces a formidable objection because of the
role that private judgment plays for judges who are disposed to act on the basis of
their own sense of fairness. This objection is based on a distinction between two
questions about fairness “ which I shall call ¬rst-order and second-order questions
The Aretaic Turn in American Philosophy of Law 127

of fairness. A ¬rst-order question of fairness is simply the question, Which action is
fair given the circumstances? A second-order question of fairness concerns whose
judgment about ¬rst-order questions will be taken as authoritative.
The fairness conception implicitly requires judges to exercise private judgment
about ¬rst-order questions of fairness. In exercising that judgment, the judge may
conclude that expectations generated by reasonable reliance on the law provide
reasons of fairness. Because each judge makes a private judgment about the all-
things-considered fairness of following the law in each case, these judgments can
(and we expect they will) differ with the political, moral, religious, and ideological
views of the particular judge. As a result, the outcome of disputes will be systemati-
cally unpredictable “ varying ex post with the assignment of judges with particular
political views. This leads to the further consequence that the law would be unable
to perform the function of coordinating behavior, creating stable expectations,
and constraining arbitrary or self-interested actions by of¬cials. How bad this
would be is a matter of dispute. A Hobbesian answer to this question is “very bad
indeed”; a Lockean answer is that reliance on private judgment leads to serious
inconvenience.
If the fairness conception of the virtue of justice is unsatisfactory, is there an
alternative? In the Nicomachean Ethics, Aristotle suggests an alternative under-
standing of justice as lawfulness, but to understand Aristotle™s view, we need to
take a look at the Greek word nomos, which is usually translated as “law.” For the
ancient Greeks, nomos had a broader meaning than does law in contemporary
English “ incorporating widely shared and deeply held social norms. A judge who
has the virtue of justice as lawfulness internalizes the nomoi. Rather than rely on
their own private, ¬rst-order judgments of fairness as the basis for the resolution
of disputes, such judges rely on the law “ understood as both the positive law and
the widely shared and deeply held social norms of the community.
For this reason, there are good reasons to doubt that the fairness conception can
offer a satisfying account of the virtue of justice. A view of justice must take into
account the distinctions between ¬rst- and second-order judgments and between
public and private judgments. Once these distinctions are introduced, the need
for second-order agreement on a public standard of judgment becomes clear. The
lawfulness conception of the virtue of justice answers to this need; the fairness
conception does not.

THE VIRTUE OF PRACTICAL WISDOM
The virtue of justice may not be exhausted by the lawfulness conception. Even if we
concede that in ordinary cases justice requires adherence to the law, the question
remains whether there are extraordinary cases “ cases in which excellent judges
would depart from the law (or, to put it differently, decide that the law does not
really apply). Even if ¬rst-order private judgment cannot do the work of ¬lling in
the content of a general conception of the virtue of justice, that does not necessarily
imply that the judge™s sense of fairness has no role to play. One reason we might
doubt the adequacy of the lawfulness conception as the whole story about the
virtue of justice ¬‚ows from the fact that the positive law is cast in the form of
128 Lawrence B. Solum

abstract and general rules; such rules may lead to results that are unfair in those
particular cases that do not ¬t the pattern contemplated by the formulation of
the rule. If lawfulness were the whole story about the virtue of justice, then an
excellent judge would apply the rule “come hell and high water” even if the rule
led to consequences that were absurd or manifestly unjust. But this implication of
the lawfulness conception seems odd and unsatisfactory.
Does the excellent judge apply the rules in a rigid and mechanical way? Or does
a virtuous judge correct the rigidity of the lawfulness conception with equity? The
classic discussion of these questions is provided by Aristotle in book 5, chapter 10,
of the Nicomachean Ethics, in which he articulates his theory of epieikeia, which
is usually translated as “equity” but can also be translated as “fair-mindedness.”
Judges with the virtue of equity do not apply the law in a rigid or mechanical
fashion; they are fair minded and sensitive to the spirit or functional purposes of
the law.
But as we have already seen, there is a problem with supplementing the lawfulness
conception of the virtue of justice with the notion of equity. Once ¬rst-order private
judgments about fairness are admitted to have the power to override the second-
order judgment to rely on the public judgments embodied in the law, the question
becomes one of how the role of private judgment can be constrained. Without
constraint, private judgment threatens to swallow public judgment, and we are
on a slippery slope that threatens to transform the lawfulness conception into the
fairness conception.
The trick is to constrain equity while preserving its corrective role. To put the
point metaphorically, we need an account of equity that enables us to navigate the
slope while providing suf¬cient traction to avoid slipping or sliding. An Aristotelian
account of the virtue of equity gives us three points of traction. The ¬rst point of
traction is provided by the distinction between the equitable correction of law™s
generality and the substitution of private ¬rst-order judgments for the nomoi.
Equity is not doing what the judge believes is fair when that con¬‚icts with the law;
rather, equity is doing what the spirit of the law requires, when the expression of
the role fails to capture its point or purpose in a particular factual context. The
second point of traction is provided by the virtue of justice itself. A judge who is
nomimos simply isn™t tempted to use equity to avoid the constraining force of the
law. A nomimos has internalized the normative force of the law; such a judge wants
to act in accord with the animating purposes of the system of social norms and
positive law.
The third point of traction is provided by Aristotle™s understanding of the
intellectual virtue of practical wisdom or phronesis “ think of the quality that we
describe as good judgment or common sense. A judge with virtue of practical
wisdom, a phronimos, has the ability to perceive the salient features of particular
situations. In the context of judging, we can use Llewellyn™s (1996: 59“61, 121“57,
206“8) phrase “situation sense,” or by way of analogy to the phrase “moral vision,”
we can say that a sense of justice requires legal vision, the ability to size up a case and
discern which aspects are legally important. The phronimos can do equity because
he or she grasps the point of legal rules and discerns the legally and morally salient
features of particular fact situations.
The Aretaic Turn in American Philosophy of Law 129

CONCLUSION
Virtue jurisprudence suggests that the standard for correct adjudication is the
virtuous judge as de¬ned by a full account of judicial excellence. Such an account
would include the uncontested virtues of incorruptibility, sobriety, courage, good
temper, and intelligence, as well as the contested and controversial virtues of justice
and practical wisdom. Virtue jurisprudence provides a neo-Aristotelian account
of the just and wise judge as nomimos (lawful) and phronimos (having legal vision).
Does the aretaic turn in American philosophy of law offer a resolution to the two
antinomies of contemporary legal theory? With respect to the antinomy of rights
and consequences, the strategy of virtue jurisprudence is precisely analogous to that
which virtue ethics offers in moral philosophy. Virtue jurisprudence rejects both
consequentialism and deontology as comprehensive conceptions of the good and
the right, and replaces them with a virtue-centered account. But a focus on virtue
does not entail the elimination of either rights or consequences. Rather, the strategy
of virtue jurisprudence is similar to the strategy that legal pragmatists offer: a
virtuous judge will give both consequences and rights their due with the organizing
and reconciling work done by the virtues of justice and practical wisdom. With
respect to the antinomy of realism and formalism, virtue jurisprudence recognizes
the real tension between formal rules and realization of the functional purposes
of the law. Once again, the key to reconciliation is found in an account of the
judicial virtues of justice and practical wisdom. The phronimos can do equity
without substituting private judgment for the public reasons of the law precisely
because he or she is nomimos “ someone who grasps and internalizes the functional
purposes of the widely shared and deeply held norms of his or her community.

WORKS CITED

Anscombe, Elizabeth. “Modern Moral Philosophy.” In Virtue Ethics: Oxford Readings in
Philosophy. Eds. Roger Crisp & Michael Slote. Oxford: Oxford Univ. Press, 1997, 26“44.
Kaplow, Louis, and Stephen Shavell. Fairness versus Welfare. Cambridge, MA: Harvard Univ.
Press, 2002.
Llewellyn, Karl. The Common Law Tradition. Buffalo, NY: William S. Hein, 1996.
16 On Continental Philosophy in American
Jurisprudence
adam thurschwell


What is it that Karl Llewellyn is asking for in “On Philosophy in American Law”?
(He is clearly asking for something: he tells us that he has been “impatient” “ his
“wattles grow red” “ waiting for a response.) Here is one way of reading the essay:
it registers a complaint (that received jurisprudential accounts of American law
provide an inconsistent hodgepodge of theories rather than a unifying panoramic
synthesis), proffers an analysis and solution (realism), and concludes with an
invitation for the reader to join the ranks of the enlightened few (the realists,
whose thought “is a wedge that is opening up the future behavior of the guild”
[Llewellyn 1934: 212]). That solution has turned out to be a resounding success,
as the “the future behavior of the guild” has indeed fallen in line with Llewellyn™s
hopes and predictions. It has become a chestnut that “we are all Realists now.”
Meanwhile, in the legal academy “ Llewellyn™s initial target audience “ realism™s
scientistic offspring, law and economics and rational choice theory, along with
various related species of neopragmatism, have assumed a dominant position
among the various competing general theories of law.
This interpretation of Llewellyn™s essay and its aftermath seems to me inarguable,
if banal. Other readings are also possible, however, and I will attempt one such
alternative here, a reading that suggests that Llewellyn™s demand has not yet been
ful¬lled and that it therefore retains something of the critical edge that it had in
1934. Indeed, the main problem with the conventional reading (and the source of
its banality) is precisely the absence of this critical edge. To read Llewellyn™s essay as
an historical success story is, paradoxically, to relegate it as an historical artifact “
to see in it nothing more than an anticipation of the present state of affairs. Its
argument is all too familiar (we are all realists now), and it only tells us things we
already know and con¬rms us in practices (both theoretical and practical) that we
already take for granted. Why read it today? Didn™t Llewellyn get what he wanted?
My thesis is that if we read the essay against the grain of this conventional his-
torical reception, we can regain the essay™s critical potential. In particular, it seems
to me that what Llewellyn was calling for “ although he could not have known it at
the time because the term had not yet been coined “ was not just more realism in
American law, but more Continental philosophy in American jurisprudence. Or
to be more precise, we can read the essay as saying one thing “ “realism answers
the felt needs of the moment” “ and doing another, a “doing” that implicitly
| 130 |
On Continental Philosophy in American Jurisprudence 131

embraces Continental-philosophical modes of thought. In his own words, even
while advancing realism as the conscious articulation of the “implicit philoso-
phy, . . . those premises, albeit inarticulate and in fact unthought, which yet make
coherence out of a multiplicity of single ways of doing,” the essay itself is a particu-
lar “way . . . of doing that comport[s] with some one philosophy and not another.”
That “some one philosophy” “ “albeit inarticulate and in fact unthought” in the
essay itself “ with which Llewellyn™s argument comports is the (broadly speaking)
Continental-philosophical approach to jurisprudence. To close the circle, my fur-
ther thesis is that it is a Continental-philosophical approach that best responds to
the felt needs of American jurisprudence today, whether or not American jurispru-
dence is conscious of those needs (Llewellyn 1934: 206).
That thesis will appear absurd to anyone even passingly familiar with current
Anglo-American legal philosophy. Indeed, the title of this essay may appear as
something of an oxymoron. Under almost any de¬nition, there is virtually no
Continental philosophy in American jurisprudence today, especially if the term is
taken in its usual professional-disciplinary sense of the traditions of post-Kantian
thought that, beginning with Hegel, rejected Kant™s rigid dualism and its related
binary oppositions “ between subject and object, freedom and necessity, the forms
of thought and the content of empirical experience, facts and norms, and so
on “ and insisted on the continuing relevance of properly philosophical modes of
thought (Kant™s speculative reason) to all of human historical experience. (There
are other ways of de¬ning Continental philosophy, but that is the sense in which I
will use it here.)
The absence of these modes of thinking from American jurisprudence is rooted
in the larger divide that has separated Continental philosophy from the dominant
traditions of Anglo-American philosophy since the early twentieth century. This is
not the place to recount how that separation occurred; the story is complex (and,
it should be said, the separation has been far from total). Nor will I attempt any
synoptic account of the (widely divergent) schools that make up the Continental
tradition, beyond identifying some characteristic and signi¬cant themes that I
will extract from Llewellyn™s essay. Suf¬ce it to say that I think Simon Critchley is
essentially correct when he characterizes the distinction between Continental and
Anglo-American philosophy as the distinction between a traditional philosophical
concern with the broader questions of human life “ a concern that goes back at least
as far as Socrates™ claim that the unexamined life is not worth living “ and a more
modern concern, rooted in the natural sciences, with establishing the certainty of
our theoretical knowledge of the world (Critchley 2001: 1“11).
Within the professional-disciplinary context of Anglo-American academic phi-
losophy, Continental-philosophical schools have tended to be treated with suspi-
cion, incomprehension, or outright dismissal, and the American legal academy
has generally followed suit. Outside of Benjamin Cardozo School of Law “ the
one American law school with a tradition of sponsoring scholarship based in the
Continental traditions “ there is very little to suggest that Continental philosophy
has had much in¬‚uence at all in the legal academy. Even the critical legal studies
movement, the only recent school of American legal thought to have cited Con-
tinental sources with any regularity, appears to have con¬rmed the irrelevance of
132 Adam Thurschwell

Continental philosophy by its demise. In the law journals one can still ¬nd an occa-
sional citation to contemporary ¬gures like Jacques Derrida or Giorgio Agamben,
but one ¬nds almost no discussion of these thinkers™ writings on law or politics
(which are abundant), or the writings of more established ¬gures in the tradition
like Hegel, Marx, Nietzsche, Gadamer, or Heidegger, to name only the best known.
It is against this background that I ¬nd Llewellyn™s essay relevant to American
jurisprudence today. As noted previously, the essay is a call for a new philosophy
of law, one that must meet certain very ambitious criteria. First, it must have
suf¬cient explanatory power to comprehend the entire history of American law
up to that point (“It is due our student that cases with dates ranging from 1780 to
1930 should be given some chart of the sweep, on which they can be plotted.”). Of
course, historical explanation can take many forms, including notions of causation
drawn from the physical sciences. Llewellyn, however, will have none of that: “I
have never felt satis¬ed with the mere listing and description of our apparently
inconsistent jurisprudential trends in the latter [nineteenth century]. It is not
enough to know what they were and whence they came. We must see why men
adopted them, and above all, how they all ¬tted into the single picture.” Let us
pause to appreciate the breathtaking demand that Llewellyn has just registered. An
adequate philosophy of law must be (1) historical in the sense of explaining the
sequence of jurisprudential trends and cases; (2) internal, in the sense of taking
into account not just the occurrence of events but the underlying motivations
of the actors in the historical drama; and (3) total in two discrete senses “ ¬rst,
in comprehending the entire sweep of American legal history, and second, in
providing one unifying, synoptic theory, the “single picture” into which the sweep

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