Ethics of virtues and the education of the reasonable judge (original) (raw)
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The Role of Virtues in Legal Education
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The author applies virtue theory (virtue epistemology and virtue ethics in particular) to the question of legal education and examines the prospects of a virtue-based discourse in this context. Following the Aristotelian distinction between intellectual and moral virtues, he argues that law schools need to equip students – besides appropriate skills and knowledge of legal regulations – with intellectual and moral virtues necessary for a socially productive legal practice. Identifying lawyerly virtues and exploring the ways they can be fostered in a university environment might be the first steps to change the exaggeratedly formalistic thinking that seems to characterize legal education and legal practice in the CEE region. El autor aplica la teoria de la virtud (epistemologia y etica de la virtud, en particular) a la cuestion de la educacion juridica, y, en ese contexto, examina las perspectivas futuras de un discurso basado en la virtud. Siguiendo la distincion aristotelica entre v...
The Role of Virtues in Legal Education. Oñati Socio-legal Series
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The author applies virtue theory (virtue epistemology and virtue ethics in particular) to the question of legal education and examines the prospects of a virtue-based discourse in this context. Following the Aristotelian distinction between intellectual and moral virtues, he argues that law schools need to equip students-besides appropriate skills and knowledge of legal regulations-with intellectual and moral virtues necessary for a socially productive legal practice. Identifying lawyerly virtues and exploring the ways they can be fostered in a university environment might be the first steps to change the exaggeratedly formalistic thinking that seems to characterize legal education and legal practice in the CEE region. Resumen El autor aplica la teoría de la virtud (epistemología y ética de la virtud, en particular) a la cuestión de la educación jurídica, y, en ese contexto, examina las perspectivas futuras de un discurso basado en la virtud. Siguiendo la distinción aristotélica ent...
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forthcoming in Phronesis 2019
I argue that, for Aristotle, virtue of character is a state of the non-rational part of the soul that makes one prone to making and acting on decisions in virtue of that part’s standing in the right relation to (correct) reason, namely, a relation that qualifies the agent as a true self-lover. In effect, this central feature of virtue of character is nothing else than love of practical wisdom. As I argue, it not only explains how reason can hold direct authority over non-rational desires but also why Aristotle defines virtue of character as hexis prohairetikē.
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The discussion between these two great streams of the Western political thought, normative and critical philosophies, can't forget its political-philosophical Greek root in the Aristotelian thought. His philosophy defends a path that doesn't adhere to extremes, but focuses on allying logically the ontic purpose and the unforeseeability of the results, which are only likely. In this paper, we address the dialectical movement between the ethical awareness of the individual and the political and legal organization of the excellent polis, in the thought of Aristotle. The man can only fulfill his end as a human being by internalising the heteronomous good expressed in the ethically constituted nomos and by the conscious exteriorization of the good in his own praxis. In short, the man may only become complete while an ethical being as he lives in an ethical community, i.e., a politically and legally organized community.
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Passages in Aristotle’s Politics Bk III are cited in discussions of the “rule of law”, most particularly sections in 1287a where the famous characterization of law as “mind without desire”occurs and in 1286a where Aristotle raises and explores the question whether it is better to be ruled by the best man or the best laws. My paper aims, by exegetically culling out Aristotle’s position in the Politics, Nichomachean Ethics and Rhetoric, to argue that his view on the rule of law and its relations to human subjects is considerably more complex and considerably more interesting. Despite Aristotle’s dictum, laws are not expressions or institutions of a pure and passionless rationality, and in order to be framed, understood and administered well, one must both have the sort of solid understanding of virtues, vices, passions, and motives of human action that Aristotle’s moral philosophy provides and have developed, at least to some degree, certain virtues. My paper will focus particularly on three themes: the role of the passions and desires in judgement, action, virtues and vices; the inescapability of passions and desires in the functioning of law; the possibility for rule of law and a certain level of virtue to be mutually supporting. ""
Draft, Talk, 2009
Paper presented in the 2009 IVR Beijing Congress, Beijing, China, 2009. Co-authored with GONTIJO, Lucas de Alvarenga. The purpose of the present text is to analyze the juridical phenomenon through the perspective of its rhetorical practice and to discuss whether such posture is by itself censorable from the ethical point of view. In order to achieve our purpose in this text, we have chosen to study, within the broad oeuvre of Aristotle, parts of the Organon collection, namely: Analytics, Topics, Sophistical Refutations, and also Rhetoric and Poetics, with an emphasis on the Art of Rhetoric. The aim that governs this entire demarche is to understand the Aristotelian proposals to a theory of rationality, which is to be investigated through the discursive practices applied to the juridical phenomenon. The utility of rhetoric is thus emphasized to what concerns it as a technique of discourse analysis, not its power to dominate minds. The function of rhetoric is not only to persuade, but also to find the persuasion means that fit better each case, to recognize what seems to convince and what convinces indeed. Even though it may be dishonestly used, that does not diminish its value. Aristotle has freed rhetoric from the burden of moral. It is necessary to be capable of defending the pro as well as the contra, not to make them equivalent, but in order to understand the adversary mechanism of argumentation and, thus, refute it. Aristotle believes that the true and the just are by nature stronger than their contraries. This is also how juridical praxis works.
Virtue Jurisprudence: A Virtue-Centred Theory of Judging
Routledge eBooks, 2017
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.