Abstract
Vice crimes, crimes prohibited in part because they are viewed as morally corrupting, engage legal theorists because they reveal importantly contrasting views between liberals and virtue-centered theorists on the very limits of legitimate state action. Yet advocates and opponents alike focus on the role law can play in suppressing personal vice; the role of law is seen as suppressing licentiousness, sloth, greed etc. The most powerful advocates of the position that the law must nurture good character often draw on Aristotelian theories of virtue to ground the connection between law and virtue. While Aristotle believed that law and character were linked, it is ironic to note that he did not argue for the position evidenced in our vice laws that law was likely to succeed in instilling virtue. Indeed, Aristotle thought the project of using law to instill private virtue was nearly certain to fail. Aristotle’s deep concern was not for the way law protected private virtue within each person but the way law had to protect civic virtue between citizens. This article argues that even from its foundations, the project of vice crimes as moral instruction is misconceived. The use of law for overly instrumental or narrow reasons opens law and legal institutions to abuse and factionalism. Lawyers, judges and others specially connected to law must first and foremost aim at addressing “legal vices,” vices internal to the institutions of law. Particularly, increasing factionalism and instrumentalism which disconnects law from the pursuit of the common good threatens our civic bonds. Most importantly, where civic bonds are disrupted, citizens have no reason to remain law abiding. The striking lesson, captured both in ancient philosophy and modern history, is that when legal vices grow unchecked and factions use the law to pursue narrow interests, ultimately law abidingness is corrupted and interest groups harm themselves as much as others.
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Notes
It nearly goes without saying that much of this is contentious. The distinction offered between moral and ethical is not uncontroversial, though I think conventional. Further, many liberals have importantly argued for forms of liberalism which take into account the development of personal and communal virtues. In political theory, a famous example is Joseph Raz’s political theory (Raz 1986). In criminal theory, Anthony Duff leads the way in finding a balance between the demands of liberalism and communitarianism and virtue-oriented goals (Duff 2012).
Just as liberals strive to find a place for the concern of virtue in a liberal system, virtue theorists have worked mightily to balance the drive of virtue theories with the demands of liberal theories. See Yankah (2009: 1192–1197).
An outstanding explication of this concept can be found in Edmundson (2006).
For an excellent example of the way criminal prohibitions contribute to and turn on virtue, see Huigens (1995: 1444–1449). In subsequent work, Huigens has moved away from virtue qua virtue and has disavowed his earlier republicanism and focused on an Aristotelian based view of practical reasoning instead.
Kraut (2002: 105–106).
[W]hen [Aristotle] says that a just person, speaking in the broadest sense is nomimos, he is attributing to such a person a certain relationship to the laws, norms, and customs generally accepted by some existing community. Justice has to do not merely with the written enactments of a community's lawmakers, but with the wider set of norms that govern the members of that community. Similarly, the unjust person's character is expressed not only in his violations of the written code of laws, but more broadly in his transgression of the rules accepted by the society in which he lives.
See also, Solum (2006: 89–90).
I am grateful to Michael Cahill for insightful critiques along this line.
I am grateful to William Edmundson for highlighting this point.
Richard Kraut writes compellingly about Aristotle’s elevation and prioritization of civic concern.
When we say, for example, that someone’s behavior on the battlefield arises from his cowardice, our meaning, according to Aristotle’s analysis, is that he suffers from an excess of fear and a lack of confidence. If we add that this lack of courage is a vice, our meaning, according to Aristotle, is that he is not living his life well []. Notice that, in making these statements, we have not yet called attention to the effect his action and character have on others. If, however, we go on to say that he has not only acted with cowardice, but in doing so he was also unjust, we are complaining about him and his action from the point of view of the whole community. Our claim that he his unjust does not allege that he suffers from some specific emotional disorder. It rather criticizes him for violating a social norm that serves the well-being of the city…[] when we criticize someone for injustice, what we mean is not that his own life is deficient, but that he shows too little regard for the community’s norms and the well-being of its members.
Kraut (2002: 121).
Here, I avoid for the moment the engaging debate surrounding the tension between Book X of the Nicomachean Ethics and much of what comes earlier in the text. See Aristotle, Nicomachean Ethics: bk. X, ch. 8. What is clear is that in contrast with Plato, who viewed engagement in politics as sullying the philosopher, Aristotle views political engagement as part of the good for man. See Hitz (2011), and Kraut (2002: 132–133).
I am grateful to Matyas Bodig and Peter Goodrich for pressing this point.
I am grateful to Youngjae Lee, among others, for pressing this point.
Aristotle makes clear that while the intimate bonds of family and dear friends are precious, the bonds of civic friendship are broad enough to bind the entire community. See Aristotle, Nicomachean Ethics: bk. 8, ch. 9.
I am grateful to William Edmundson for thoughtfully raising these points. It is of course true that liberal theories have the resources to address claims of distributive justice. Arthur Ripstein, for example, finds in Kantian prioritization of freedom an imperative for the state to ensure no one is so poor as to be at the mercy of others. Still, he also makes clear that Kantian freedom cannot support any demands of distributive justice outside of freedom preserving claims. Elsewhere, I have questioned whether liberal theories along these lines can account for the full range of the duties of distributive justice owed our fellow citizens. See Yankah (2012).
I am grateful to Heidi Hurd for pressing this point.
Though I do think that Cohen’s intuition that there is republican virtue feeling compelled to contribute more personal wealth to civic society when one understands that the polity’s distributive justice scheme is plainly unjust is entirely correct (Cohen 2008).
The exact requirements of civic duty will obviously differ from community to community, country to country. At various times in countries such as Israel and Germany, all or some citizens have been required to serve in national or military service for a year. In New Zealand, citizens are required to vote by law. While I would not import any particular practice wholesale into the United States, it is critical to note that both these examples show how different communities require civic duty while ensuring that citizens maintain ample space to pursue their life plans.
109 U.S. 3, 20–24 (1883).
163 U.S. 537, 540 (1896).
203 U.S. 1 (1906).
Ekow N. Yankah, Legal Hypocrisy, (manuscript on file with the author).
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Acknowledgments
I would like to thank participants in the World Congress of Philosophy of Law and Social Philosophy in Frankfurt involved in the special workshop on Aristotle and the Philosophy of Law: Theory, Practice and Justice and the Workshop on Legal Normativity and the Philosophy of Practical Reason; participants at the Rutgers Law School (Newark) Symposium on Vice and Crime, particularly Michael Cahill and participants in the Cardozo Law School Faculty Workshop. I am also in debt to William Edmundson, whose comments large and small improved this piece tremendously.
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Yankah, E.N. Legal Vices and Civic Virtue: Vice Crimes, Republicanism and the Corruption of Lawfulness. Criminal Law, Philosophy 7, 61–82 (2013). https://doi.org/10.1007/s11572-012-9161-1
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DOI: https://doi.org/10.1007/s11572-012-9161-1