Reasoning in Character: Virtue, Legal Argumentation, and Judicial Ethics

Abstract

This paper develops a virtue-account of legal reasoning which significantly differs from standard, principle-based, theories. A virtue approach to legal reasoning highlights the relevance of the particulars to sound legal decision-making, brings to light the perceptual and affective dimensions of legal judgment, and vindicates the relevance of description and specification to good legal reasoning. After examining the central features of the theory, the paper proposes a taxonomy of the main character traits that legal decision-makers need to possess to successfully engage in legal reasoning. The paper concludes by discussing an array of strategies in legal education, institutional design, and legal culture that can be put in place to work virtue in legal decision-making.

1 Introduction

In the last decades, virtue jurisprudence, which places the notion of virtue at the center of legal analysis, has gained prominence in legal scholarship. ¹ A variety of topics in legal theory has been examined through the lenses of virtue theory, such as questions pertaining to the theory of legislation, e.g., the connection between virtue and the ends of law, the theory of legal justification, with a special focus on the justification of judicial decisions, and the theory of justice, e.g., the relations between law, justice and law-abidance.² Virtue theory has also been applied to several areas of substantive law, notably, criminal law, constitutional law, contract law, property law, torts, evidence law, international law, intellectual property law, corporate law, medical law, and legal ethics.³ In this paper, I aim to explore the relevance of virtue for a theory of legal reasoning.⁴ More specifically, I aim to show that a virtue perspective yields a distinct conception of legal reasoning, which is broader in scope than standard theories of legal reasoning. Critically, a virtue approach to legal reasoning brings to light the important connections that there are between theories of legal reasoning and the ethics of the legal professions. Given this connection, the study of virtuous character traits for legal professionals and the examination of their modes of acquisition turns out to be a central component of a theory of legal reasoning.

This paper has three parts. In the first part, I examine some elements in legal reasoning that a virtue approach to the subject brings into focus. A virtue perspective, I will argue, enables us to apprehend the relevance of particularity to sound legal judgment, the importance of the perceptual and emotional dimensions of legal argument, and the centrality of description and specification in legal reasoning. Thus, a virtue analysis of legal reasoning, as I will show, yields a much more complex view of what legal reasoning involves than traditional, i.e., deontological and consequentialist, approaches to the subject. In the second part, I give an account of the main traits of character that legal decision-makers -more specifically, judges- should possess and exercise to succeed at the complex reasoning task that legal decision-making requires. The proposed taxonomy includes the traditional moral virtues, but also epistemic, argumentative, communicative, institutional, and group-deliberative virtues. On the virtue account, the study of these qualities of character is the proper subject of the theory of legal reasoning, which is thereby shown to be intimately connected with professional legal ethics. The third part of the article discusses a diversity of strategies for nurturing virtue in law. Specifically, I shall suggest some ways in which legal education, institutional design, and, more broadly, legal culture can be shaped with a view to cultivating virtue in the legal professions.

2 A Virtue Theory of Legal Reasoning

The concept of virtue is the keystone to an aretaic theory of legal reasoning, in contrast to standard theories of legal reasoning, which are either rule-based or outcome oriented. Critically, a virtue theory of legal reasoning suggests a shift of focus: from arguments and the decisions they support, which are the main target of standard theories of legal reasoning, to the legal decision-maker and her traits of character. In a strong version, right decisions are those that a virtuous legal decision-maker would take. In a weak version, the virtuous legal decision-maker has a privileged standpoint to access the relevant reasons, thereby providing the best criterion to determine which decisions are right - where their rightness is a function of virtue-independent reasons.⁵ Thus, on a virtue approach to legal reasoning, reasons are agent dependent – either constitutively or epistemically. In both the constitutive and the epistemic version, the virtuous legal decision-maker is at the very center of the theory.⁶

It is a main claim of a virtue theory of legal reasoning that arguments and character are intimately intertwined in contexts of legal decision-making. On the classical account of virtue, which the theory endorses, the agent’s practical reasoning is ‘essential to the way a virtue is exercised and the way it is built up.’⁷ In this view, the acquisition of virtue involves primarily the development of one’s capacity to reason, which is further refined in its turn as character is perfected. On the one hand, a virtuous character is built in the course of practical reasoning and, on the other hand, virtue (or its lack thereof) enhances (or erodes) the quality of the person’s reasoning. Hence, legal reasoning (as a special case of practical reasoning) and character are interdependent: legal decision-makers reason in character and their character is also shaped by the decisions they take.

Consequently, the virtuous legal decision-maker reasons in a distinctive way. Five main characteristics distinguish the virtuous agent’s legal reasoning: (a) the virtuous legal decision-maker focuses on the particulars; (b) virtuous legal reasoning actively engages a refined perceptual capacity; (c) it is affectively infused; (d) the virtuous legal decision-maker’s reasoning involves a conscientious description of the situation of choice; (e) virtuous legal reasoning is also of ends.⁸ This picture, as explained below, markedly differs from the normative ideal advanced by standard theories of legal reasoning.

2.1 A Focus on the Particulars

General rules play a central role in legal reasoning. However, legal reasoning cannot be understood primarily in terms in rule-application. There are, as is well known, hard cases, in which either the interpretation of the law or the facts is problematic, or the solution provided by the application of a clear rule to the determined facts is absurd or unjust. The specific features of the case may render inappropriate to treat it as a ‘rule-case’ and suggest the need to go beyond rule-based reasoning.⁹ Fittingness to the particulars of the case is thus central to sound legal judgment. In contrast to standard, rule-centered, approaches to legal reasoning, a virtue theory of legal reasoning has the resources to adequately attend the claims of particularity.¹⁰ Virtue endows its possessor with a capacity to see the relevant reasons that obtain in the specific case, including those that might make problematic the straightforward application of a rule or even defeat its application.¹¹ This knowledge of exceptions that virtue consists of resists, as some virtue ethicists have persuasively argued, codification: that is to say, what distinguishes the virtuous person from those who are less than virtuous is not that they possess knowledge of a body of principles.¹² The distinguishing feature of the virtuous person is that she has a ‘high order of situational appreciation’ -which is needed to take decisions that adequately respond to the specific features of the particular case.¹³ Thus, the virtuous legal decision-maker is well-positioned to determine whether a rule-based approach is adequate to solve the case or whether the case is such that a more substantive approach is required.¹⁴ It is important to notice that a virtue theory of legal reasoning does not, however, collapse into particularism, as rules play important roles within the theory, e.g., rules often govern the legal decision, as loyalty to law is a central virtue in legal decision-makers, and they are also critical aids to perception.¹⁵ A virtue theory thus provides a middle approach between principalism and particularism in law.

2.2 The Relevance of Perception

The apprehension of the particular features of the case on which good legal judgment rests is the outcome of a perceptual capacity. Perception thus plays an important role in legal argument, which is obliterated by standard views on legal reasoning, which focus on reflection and deliberation. A virtue perspective on reasoning is well placed to give an account of the perceptual dimensions of legal argument, as a refined perceptual capacity is a chief mark of the virtuous person. The virtuous legal decision-maker correctly perceives the reasons that obtain in the particular case in a way that misses nothing of relevance and in which some reasons are viewed as salient, and requiring action in a certain way, and opposing reasons are silenced.¹⁶ This perceptual capacity is not, however, a mysterious ability to see into the right, but it is rather the kind of refined capacity of perception that is characteristic of expertise.¹⁷ The analogy between virtue and practical expertise also allows us to see that virtuous judgment, even though it involves, in an important sense, perceptual capacities, does not preclude conscious deliberation. For what distinguishes the expert from the novice is not that reasoning is otiose for the expert, but that the expert has the capacity to deal with ease with cases that would be hard for the novice as well as the capacity to deal with hard cases that would be irresolvable for the novice. Virtue does not preclude, rather enables, discursive justification and allows those who possess it to successfully engage in the difficult reasoning tasks that hard (and tragic) cases sometimes require.¹⁸ Thus, virtue (as expertise) results from a balanced combination of both perceptual and reflective abilities.

2.3 Emotional Involvement

Virtuous legal reasoning is emotionally engaged. Virtue is a matter of both action and emotion, for the virtuous person is not only the person who has a disposition to act in a certain way but one who also has a fitting emotional response.¹⁹ The motivational outlook that is characteristic of the virtuous legal decision-maker plays an important epistemic role in that feeling certain emotions helps detect the reasons that obtain in the particular case and correctly register their importance and resonance. For instance, the indignation felt in the face of injustice may reveal to a legal decision-maker aspects of the situation that would be overlooked by a legal decision-maker that is indifferent to the parties’ plight, and it might point towards ways in which the law may help put a remedy to it. Critically, the incorporation of virtues into a theory of legal reasoning does not amount to opening the door to emotions in a disorderly way. Emotions have been shown to importantly contribute to reasoning and decision-making – a finding that mainstream theories of legal reasoning, which are uncompromisingly cognitive, ignore at their peril. Emotions, however, as is well known, can also distort judgment. A virtue approach to legal reasoning insofar as it allows in the regulated emotions of the virtuous person is well-positioned to benefit from the positive contribution that emotions may make to legal judgment in a way that avoids their potential distorting effects.²⁰

2.4 Attention to Description

Standard theories of legal reasoning focus on the moment of choice and the justification of the decision that has been taken. In contrast, a virtue approach to legal reasoning emphasizes the importance of the description of the situation of choice.²¹ The theory enters earlier in the process of legal reasoning as it is mostly concerned with the stage, prior to decision choice, in which the set of alternative decisions, and the arguments and evidence supporting them, are identified and fleshed out.²² Virtuous legal judgment involves, first and foremost, an accurate and detailed description of the situation of choice, which requires that the legal decision-maker pay adequate attention to the different features of the situation that may provide reasons for action in the specific case.²³ This is not to say that legal decision-making may be reduced to a kind of empirical investigation – that is to say, that it is factual all the way down, for a good description also involves a reflection about the values involved. For example, a judge may need to deepen his views about gender equality to see that asymmetry of power at the workplace is an essential part of the correct description of cases of sexual harassment.²⁴ Thus, a virtue approach to legal reasoning highlights the relevance of the reasoning processes (about both facts and values) that lead to a good description of the case, which provides the basis upon which the case would be ultimately decided.

2.5 The Specification of Ends

Legal reasoning involves reasoning about ends and not merely instrumentalist reasoning (that is, reasoning that aims to bring about some previously fixed value) as standard approaches to legal reasoning commonly assume. Indeed, a commitment to value commensurability, and the associated view according to which legal reasoning aims at maximizing value, is a central feature of the standard theory of legal reasoning.²⁵ In contrast, a virtue approach to legal reasoning is committed to the view that there is a plurality of distinct, irreducible, and incommensurable values which the law aims to protect. Thus, a virtue approach to legal reasoning rejects the view according to which value conflict in law may be addressed by a balancing operation or the reduction of the conflicting values to a single scale. Instead, it puts forward a conception about how to reason in cases in which plural and heterogenous values come into conflict that embraces (rather than simplifies) its complexity. More specifically, the virtuous legal decision-maker reasons about the conflicting values by searching for their best specification.²⁶ This requires inquiring into how these values should be further specified and how they relate to each other in light of a general conception of the ends of the law (which is also subject to further revision and specification).

Thus, from a virtue perspective, the legal decision-maker and her qualities occupy a central stage within the theory of legal reasoning. Good legal reasoning necessitates an agent who has the skills to reason about a case in a way that is responsive to the particulars, possesses refined perceptual capacities and virtuous affective orientations, engages responsibly in the description of the situation of choice, and is capable of addressing the normative conflict that oftentimes is involved in legal decision-making in ways that avoid simplifying strategies that assume monism about value. In contrast to standard, principle-based, theories of legal reasoning, which focus on rule-application, deliberative capacities, cold cognitive processes, justificatory tasks, and means-ends inferences, a virtue theory depicts a conception of legal reasoning that highlights the role that particulars, emotions, and perceptions play in legal argumentation and that takes description and specification to be central to legal reasoning.

3 A Taxonomy of Juridical Virtue

The agent-based conception of legal reasoning outlined above has an important implication: it calls into question the view (implicitly assumed in current work on legal reasoning) according to which legal reasoning and legal ethics are mutually independent. As argued, it is a main claim of the theory that correct decisions are either epistemically or constitutively dependent on virtuous legal decision-makers. A correct legal decision is a decision that a virtuous legal decision-maker would take – where the correctness of the decision depends either on virtue-independent reasons, which the virtuous person is best placed to identify, or on virtue reasons, with the virtuous person playing consequently a constitutive, rather than an epistemic, role. Given this agent-dependency of reasons in the legal realm, the study of the virtuous traits of character of legal professionals cannot be viewed as the exclusive concern of legal ethics, but it is rather a part of a theory of legal reasoning proper. Thus, a virtue theory of legal reasoning vindicates the important connections that there are between a theory of legal reasoning and professional legal ethics.

3.1 Professional Virtues in Law

Now, which are these virtuous traits of character that enable those who possess them to excel at legal reasoning? These traits of character, I would argue, are not exclusive to the legal professional roles, but they are rather general virtues. There is, I would argue, a continuity between general morality and the morality of the legal professions.²⁷ This prevents, for example, that a character trait that is generally regarded as a vice, e.g., dishonesty and aggressiveness, may turn out to be a virtue in the context of a legal professional role, e.g., a lawyer. Character traits do not change valence from non-professional contexts to professional ones. If a vicious character trait is apparently a virtue for a given professional -in that it seems to further the ends of the profession- then this suggests the need to question the conventional understandings of the profession that would make it so. For example, if dishonesty and aggressiveness seem to be a virtue in lawyers, then this indicates the need to revise the received conception of what a good lawyer is and what the proper ends of lawyering are, instead of vindicating the status of ‘dishonesty’ or ‘aggressiveness’ as a lawyerly virtue. In the extreme case, that a vicious trait of character is apparently a virtue in a profession should lead not to assert its status as a virtue in the context of the specific professional role, but rather to question the very desirability of the existence of the profession (let us think, for example, of ‘cruelty’ as a supposed virtue for the role of a torturer in a security force).

Despite this continuity, the professional virtues do not boil down to general virtues. There are some features that make it necessary to engage in an investigation of the professional virtues. First, professional virtues are only a subset of the general virtues: not all general virtues are equally needed across the professions, and it is useful to examine which traits of character are most valuable for certain professionals to have. For example, while courage is a moral virtue across the board, it is much more needed for a soldier than it is for a judge. One way in which one may delimit the range of relevant virtues is by reflecting upon the ends of the profession: professional legal virtues would be, accordingly, these traits of character that help achieve the ends of the legal professions, i.e., the advancement of justice.²⁸ Secondly, virtue requirements are differently specified depending on context, and this includes the context of a professional practice. What courage requires of a soldier is not the same as what it typically requires, when it does, of a judge. Or what honesty requires of a judge is not identical to what it requires of a lawyer. Thus, we could distinguish, following Swanton, between ‘prototype’ virtues and ‘role’ virtues, where the latter specify the requirements of the former.²⁹

A virtue approach to professional legal ethics would then seek to identify the set of character traits that are needed to achieve the ends of the legal professions (and thereby to engage in the professional practice in a way that is socially valuable) and give an account of how they should be conceived. To be sure, different virtues would be needed in different legal professional roles. In what follows, I shall focus exclusively on the judicial virtues- in this, I am, not without regret, following the judge-centric trend in contemporary theories of law and legal reasoning. Despite the unquestionably central place that judges play within the legal system, there is a need to give a more complete account of legal phenomena, beyond the judicial context. I hope, however, that the analysis of the judicial virtues advanced below may be also useful for thinking about the different traits of character that are needed to excel at legal practice in the capacity of other professional legal roles.³⁰

3.2 Virtuous Judges

What are then the personality traits that enable the distinctive outlook that is characteristic of a virtuous judge?³¹ A number of different kinds of virtues are particularly relevant to virtuous judicial decision-making.³² First, virtuous judges should possess and exercise a set of moral virtues, such as temperance, courage, impartiality, magnanimity, and humility. Most discussions of judicial virtue focus on moral character, and although these are hardly the only traits of character that are needed in the context of the judicial role, they remain nonetheless critically important.

Second, good judges should also possess a fair share of intellectual or epistemic virtues, such as open-mindedness to different arguments and points of view about the case, perseverance in following a line of reasoning, intellectual autonomy, to form independent views about the case, rather than being unduly subjected to the influence of lawyers or other judges, intellectual sobriety, not to jump prematurely to conclusions, intellectual humility, to acknowledge their own limitations and fallibility, intellectual patience, not to put an end to the decision-making process too early, and intellectual vitality, to engage indefatigably in a careful analysis of the available evidence and relevant arguments.³³

Third, legal practice is argumentative to the bone, and this makes it necessary for judges to possess and exercise a number of argumentative virtues as well, like a willingness to question the obvious, which may lead to problematize the apparently clear interpretation of the facts, their proper classification, and the seemingly straightforward identification and interpretation of the applicable law; to listen to other people’s views, including the arguments advanced by both parties as well as other members of the court; a disposition to engage in argumentation, be it self-argumentation or inter-personal argumentation, rather than leaving unquestioned one’s pre-deliberative views about the facts or the law; and the willingness to modify one’s position in light of other people’s arguments, in a way that avoids both floppiness and fleetingness, on the one hand, and rigidity and stubbornness, on the other.³⁴

Fourth, the communicative virtues are also pivotal in the context of the judicial role, and much needed to adequately relate to other actors at trial as well as to properly write and communicate the judgment to the parties, the victims, and society at large.³⁵ Sincerity and candor in presenting one’s arguments and judgment; simplicity and clarity in the course of laying out the relevant questions of fact and law; accuracy and precision when reasoning about the evidence as well as articulating and applying legal concepts; receptivity and attentiveness to genuinely engage in dialogue with the relevant actors; and tactfulness, respect, and compassion in the course of addressing the different actors at trial and delivering the verdict are core components of juridical virtue.

Fifth, the judicial virtues importantly include the institutional ones – the so-called ‘cooperative virtues,’ or, in Hume’s terminology, the ‘artificial virtues’ – most prominently, the virtue of justice and the virtue of loyalty.³⁶ To be sure, the virtue of justice is paramount in judicial legal decision-making. This virtue does not have an easy place within a theory of virtue: unlike other virtues, it cannot be smoothly explained as a mean between two vices, neither can it be associated with a characteristic motive.³⁷ Despite these difficulties, the good judge can hardly be described without appealing to the virtue of justice: this virtue is, as Hart says, the more juridical of the virtues and a virtue that is especially appropriate to law.³⁸ Singularly important is also the virtue of loyalty, which, in the institutional legal context, requires that judges endorse the ‘internal point of view’ and, accordingly, structure their inquiry and deliberation in a way that gives proper weight to authoritative reasons.³⁹ Loyalty to law is further formalized by the judicial oath –which thus has a natural place in a virtue approach to adjudication.⁴⁰

Last, given the collegiate nature of constitutional and appellate courts, judges also need to exhibit several group-deliberative virtues, i.e., the traits of character that are conducive to good collective decision-making.⁴¹ Group deliberative virtues are not different from those that have been included in the previous virtue-groups, but some of these virtues may be singled out as particularly important for properly performing the judicial function in multi-member courts. Indeed, some character-traits, such as, humility to regard and relate to one’s peers within the Court as equals, cooperativeness in the collective deliberation, open-mindedness to the ideas of other court members, kindness, politeness, and civility towards one’s colleagues, and courage in defending a minority position within the Court, are critical to enabling a genuine and productive collective deliberation.⁴²

Finally, the virtue of practical wisdom, or phronesis, stands out as a particularly important virtue for successful judicial decision-making.⁴³ This meta-virtue is necessary to arbitrate between the demands imposed by the specific virtues, in cases in which these demands overlap or come into conflict, to determine the right mean in which virtue consists, and to orchestrate the work of the different kinds of virtues into a single line of action.⁴⁴

Thus, being virtuous in the context of the judicial role is a demanding standard, which requires the integration of different aspects of one’s personality. Just as a virtue approach to legal reasoning reveals complexities that were sidestepped by standard approaches to legal reasoning, it also brings to light the diversity of subjective qualities that are needed to engage properly in legal reasoning. In so doing, it stands in sharp contrast to theories of legal reasoning that dispense with the subject altogether and aim at delivering a decision-procedure that yields good results irrespective of any features of the subject. It also diverges from views that appeal to a thin subject, which equate the good judge with the judge who has technical mastery of the law and its methods, as well as from views that endorse a simplified conception of judicial virtue, which reduce it to obedience to the law and its application with ‘pedantic impartiality.’⁴⁵ Virtue in the context of the judicial role requires the possession and exercise of a rich variety of dispositions of character, as could not be otherwise, given the complex nature, and the social relevance, of the decision-task that judges are entrusted with.

4 Working Virtue in Law

A desideratum (and a condition of adequacy) for any theory of legal reasoning is that it be able to improve upon legal practice. It is a great advantage of a virtue theory of legal reasoning that, in contrast to highly idealized theories of legal reasoning, it puts forward a normative ideal (i.e., the virtuous judge, which exemplary judges embody) that all legal decision-makers can approximate. Rather than abstracting away from human limitations and resources (Dworkin’s Judge Hercules is to the point here), the normative standard advanced by a virtue theory of legal reasoning does not assume capacities that judges cannot develop or conditions (e.g., limitless time) that cannot obtain.⁴⁶ Even if it may be debatable whether all legal officials may be able to become exemplary, certainly all can become more virtuous than they are.⁴⁷ In addition, the virtue theory of legal reasoning, with its reliance on emotion and intuition on the one hand, and reflection and deliberation, on the other, builds on our natural forms of reasoning (as the dominant theory of human cognition i.e., the dual system theory, portrays them).⁴⁸ As a result, the theory is well positioned to benefit from all our cognitive resources to guide and ameliorate practice, in contrast to standard theories of reasoning, which focus almost exclusively on reflective and deliberative capacities (i.e., system 2 processes, to the exclusion of system 1 processes).⁴⁹ In short, the psychological plausibility of the theory importantly enhances its normative relevance.

However, for the theory to be able to guide and improve legal practice, it is not enough that the normative standards it sets forth be psychologically plausible, but it is also necessary that there are some available ways in which one may work towards approximating them. In other words, the ideal should be both achievable in principle but also translatable into practice. One might accept that it is feasible for us to approximate the ideal of the virtuous jurist but be at a loss as to what steps may be taken to realize it. In that case, although feasible, the ideal would be sterile for the purposes of improving legal practice. How well does the virtue theory of legal reasoning fare in this regard? Is there any clear path forward for virtue development in the legal context? I would like to suggest some ‘work packages’ that could be undertaken to bring legal practice closer to the ideal of the virtuous legal decision-maker. Virtue can be worked in law through educational policy, institutional design, and culture change.

4.1 Legal Education

A main route towards establishing a virtuous legal practice is through educational policy, i.e., by endorsing virtue cultivation as an important goal of legal education. Virtue education is a never-ending process: character can always improve, and it can also deteriorate. Thus, it is important that virtue-oriented educational measures be present at all stages of legal education, from the law school to legal professional training. There is a number of different ways in which virtue may be developed through legal education.

First, a main form of virtue acquisition is, since Aristotle, the emulation of exemplars.⁵⁰ It would be necessary to vindicate the relevance of exemplary jurists, which may provide role-models worthy of admiration and imitation, in legal education. A main way to do so is through the recovery of the book of exempla and the use of biographies of judges, lawyers or legal scholars who excelled at the profession, as important pedagogical tools.⁵¹ Imitation is a risky business: if properly done, it is extremely productive from the point of view of virtue development, but it may also be distorted in several ways. For example, the process of imitation may degenerate into mere copying, in which superficial features of the model are reproduced in a mindless way.⁵² Thus, it is critical to combine exposure with critical discussion and reflection, when using these models as educational materials.⁵³ In addition to introducing models of excellence in the classroom, it is important to generate spaces for interaction with excellent jurists, through speaker series, internships, and mentorships systems, so that legal students and professionals can become acquainted with and learn from excellent others. Raising self-awareness among legal professionals and law professors of their pedagogical functions as role-models is also central for successfully instilling the virtues through imitation.

Second, explicit instruction on the virtues could be incorporated into the law school curricula and programs for continuing professional education, mostly, but not exclusively, as pedagogical units in the context of courses in jurisprudence, the ethics of the legal professions, and legal reasoning. The discussion of virtue-oriented work in subjects of substantive law, across the curriculum, is also extremely important to fully apprehend the relevance of virtue standards for law and the legal professions. Although one can hardly become virtuous by learning about the virtues, explicit teaching on virtue theory may help law students and legal professionals to reflect upon the traits of character that are most needed in the legal professions and collectively discuss about the best way in which they should be conceived and what demands they impose on legal officials. It may also be useful for communicating the moral dimensions and the social significance of the role they perform, or will perform, and for conveying a more inspirational view of the legal professions, which may prompt them to thrive.

Third, several interventions to promote virtue have been proposed in the field of positive psychology, which could also be useful for developing virtue among law students and legal professionals. For example, in the context of business organizations, interventions that involved completing a workbook designed to promote humility and writing assignments that incorporate the ‘semantic signature’ of humility, i.e. the text features that are characteristic of humility, such as inclusive language as well as language that maintains equality and emphasizes connectiveness, have been administered and shown to be effective.⁵⁴ Besides interventions that employ traditional activity designs, such as workbooks, multi-modal interventions (e.g., games, simulations, strength-based coaching, or group developmental activities) are also being recently developed and applied.⁵⁵ The incorporation of interventions such as these, tailored to the legal context, in law school curricula and legal professional training could be an additional venue for fostering virtuous traits of character in law.

Fourth, it would be necessary to rethink legal education with a view to developing in law students and legal professionals the capacities and skills that are necessary to engage in virtuous reasoning in law. Thus, legal education should be designed to enhance the imagination, affective orientations and perceptual capacities that are characteristic of the virtuous person. Literature and film, as is well known, are important tools for developing these capacities, and this makes them a particularly important element in a legal education thus conceived. In addition, literature and film provide a rich repertoire of models of virtue (and vice), beyond those law students and legal officials may have first experience of, or access through historical narrative, and this is another reason why they should be included in legal educational programs that aim at fostering virtue. Besides literature and film, virtue-oriented programs of legal education could also incorporate the performative arts as well as opportunities for experiential learning, which are important avenues for character formation.

Fifth, as argued above, there are some important structural analogies between virtue and practical skills. The point also holds for their modes of acquisition: virtues, like practical skills, are learned by doing. It has been shown that expertise in several practical domains results not merely from accumulating experience: mere repetition does not lead to skill acquisition, but expertise requires the right kind of experience. ‘Deliberative practice,’ which provides opportunities for feedback and reflective self-correction, is central to developing expertise.⁵⁶ This kind of practice is arguably also needed for developing virtue: monitoring and feedback are central to the acquisition of virtue. Thus, the generation of opportunities for deliberative practice in legal education is a further way in which virtue may be nurtured in law. Deliberative practice may be prompted in the classroom by engaging students and legal practitioners in training into practices such as dialectical exchange, receiving criticism, responding to feedback, revising their own views, and listening to alternative viewpoints.⁵⁷ In addition, deliberative practice could be fostered in the legal professions by structured case discussions, which provide valuable feedback -beyond the formal one that is enabled by the system of appeals (more on this below).⁵⁸

Last, and more broadly, legal education could promote the virtues by endorsing a ‘teaching style’ at the law school as well as in continuing professional development that far from giving a simplified (and formalistic) account of legal reasoning, as mere rule-application, conveys the complex nature of legal reasoning and legal decision-making, the momentous moral and political implications of legal decisions, and the urgency of developing a diversity of capacities and skills, beyond the acquisition of technical knowledge, to be able to properly think like a jurist.

4.2 Institutional Design

Virtue may also be fostered through institutional design.⁵⁹ Design may thus function as a ‘nudge,’ which triggers virtuous behavior.⁶⁰ To begin with, spatial design may facilitate (or hinder) virtue in the legal professions.⁶¹ For instance, building design may promote epistemic generosity in law firms by creating spaces for social interaction and knowledge sharing.⁶² Similarly, the architectural features of a courtroom may further (or deter) virtue. For example, magnificence in architectural style may nurture judicial magnanimity, and space planning may reinforce social hierarchies and be inimical to displays of judicial humility or it may harden antagonism between the parties and be conducive to a less conciliatory argumentative style on the part of the lawyers.⁶³ Interior design is also relevant to fostering a virtuous legal practice. For example, the interior design of a jury room, such as the use of a round (vs rectangular) table, may prompt (or hinder) a more inclusive deliberation in which all voices are heard and inform the jury verdict.

Normative frameworks, i.e., the design of rules and procedures, can also impede or foster virtuous legal decision-making. Some core legal rules and procedures promote virtuous behavior, for instance, the adversarial procedure, insofar as it gives legal decision-makers the opportunity to hear the best possible case for each party, is a valuable means of furthering impartiality. Other rules, however, are suspect from the perspective of fostering virtue, for example, intrinsic rules of exclusion insofar as they prevent jurors from hearing an important subset of the relevant evidence are an obstacle to the exercise of the virtue of thoroughness and compromise the exercise of other key epistemic virtues such as the virtue of intellectual autonomy.⁶⁴ Thus, virtue development provides an important perspective from which to evaluate and revise current normative arrangements. In so doing, it is important to bear in mind that the explicit appeal to virtue in a legal rule may not be the most useful way to trigger virtuous behavior. For example, there is evidence showing that an instruction asking jurors to seriously consider alternative views is more efficacious in bringing about impartiality than a direct instruction asking jurors to be impartial.⁶⁵

In addition, organizational structures can also be consequential for fostering virtue in the context of legal decision-making.⁶⁶ For instance, the separation between investigatory and adjudicative functions fosters impartiality, or the existence of a system of appeals may promote humility and awareness of one’s fallibility. The way in which access to different roles within the organization is designed is also relevant for the purposes of generating or obfuscating a virtuous environment – with selection procedures being particularly important in this regard.⁶⁷ As mentioned above, different juridical roles call for different virtues, and thus it is highly consequential from the perspective of promoting virtue that the diverse functions in legal organizations be matched by virtues.⁶⁸

Thus, spatial, normative, and organizational structures in legal institutional settings may be designed with a view to fostering virtue. Importantly, these structural solutions do not rely on incentives, sanctioning or coercing. Rather, the objective of nudging strategies is to shape the institutional environment in ways that facilitate virtuous behavior. Thus, they differ from (rather controversial) proposals to incite virtuous behavior through moral audits, promotions, and performance management systems.⁶⁹ In contrast, nudges are indirect measures that enable virtuous behavior, rather than directly associating virtue or its lack thereof with specific normative or financial outcomes. These direct systems for virtue promotion may not only be inefficacious for fostering virtue in the legal context, but also harmful, in that they may engender motivations that are contrary to virtue and generate fake patterns of virtuous behavior that can be detrimental in the long run.

To be sure, these structural mechanisms indirectly get legal officials to behave in accordance with virtue, but they do not instill in them virtue stricto sensu, i.e., a reliable disposition to behave in the right way for the right reasons. However, by behaving as a virtuous person would, legal officials may come to acquire virtuous motivations and, eventually, achieve genuine virtue.⁷⁰ In other words, by behaving according to virtue, they may end up behaving out of virtue. For example, a judge by becoming habituated to hear to both sides before taking any decision, may acquire the motivations that are characteristic of the virtuous person, and not only behave as an impartial person would, but also become an impartial judge, who has a disposition to act reliably with impartiality as the result of thinking, deciding, and feeling in an impartial way.⁷¹ Thus, these structural measures by prompting virtuous behavior may provide a path toward the development of genuine virtue.

4.3 Culture Change

A virtuous legal practice requires, ultimately, a change in legal culture. A number of strategies for highlighting virtue may be useful for steering cultural change in the direction of virtue. First, the virtues could be fostered by explicitly recognizing their value in the codes of professional legal conduct. Although limited as tools for virtue development, these codes play an important role in conveying the values that the legal profession takes to be relevant, providing standards for assessing professional conduct as well as enabling criticism and discussion of core professional values.⁷² Second, the virtues could be promoted by explicitly recognizing their value in the strategies of law schools, law firms, and public legal institutions.⁷³ The inclusion of the language of virtue in these instruments is important to publicly state the extent to which a commitment to virtue is central to the normative identity of these institutions and their willingness to proactively nurture it. Last, virtuous legal practice could be praised in different ways, many of which are well known in business organizations, and, more generally, widely used in public culture, such as honorary titles, naming buildings and events policies, recognition programs and awards, or commemorative art. It is important to highlight excellence across the board: from peers, who may provide an invaluable source of inspiration and learning; to legal officials who occupy leadership roles, as their way of relating to others and engaging professionally permeates through different organizational levels; and outstanding jurists -from the present and the past- who have made long-lasting contributions to the profession. Thus, different media can be used to signal virtue and instill in law students and professionals a motivation to cultivate it. Together with educational policy and institutional design, signaling virtue is instrumental to inducing a gradual shift towards a virtuous legal culture.

5 Conclusions

Virtue theory has importantly influenced different areas of legal scholarship. In this paper, I have examined the relevance of virtue to a theory of legal reasoning. A virtue perspective on legal reasoning brings to light important dimensions of legal argument that are at best marginal in standard, principle-based, approaches to the subject, such as the relevance of the particulars, perceptions, and emotions to sound legal reasoning and the importance of description and specification. By highlighting the relevance of elements that have been considered peripheral in standard theories of legal reasoning, a virtue perspective on legal reasoning broadens the subject matter of the theory beyond its traditional boundaries. It also expands the scope of theories of legal reasoning insofar as it vindicates the study of subjective qualities of character, which have been traditionally conceived as the proper subject of legal ethics, as part of the theory. I have suggested a taxonomy of traits of character that are virtuous in the context of the judicial role, more specifically, moral virtues, epistemic virtues, argumentative virtues, communicative virtues, institutional virtues, group-deliberative virtues, and the meta-virtue of practical wisdom. Given the important connections that there are between virtuous character and good legal argument, it is critical that these traits of character be cultivated in the context of the legal professions. I have concluded by suggesting a number of educational, institutional, and cultural measures that could be taken with a view to promoting virtue in the judiciary, and, more broadly, in the context of the legal professions.

Indeed, there are a number of objections that could be raised against a virtue approach to legal reasoning. Some of these problems are well-known in virtue theory, e.g., the objection that virtue theory is elitist, self-defeating, or that it cannot provide action-guidance. Other lines of criticism are specifically raised against a virtue approach to law and legal reasoning, such as that it is at odds with publicity and impartiality in legal judgments, inimical to the rule of law, and in tension with some core commitments of liberal legal systems. Indeed, these (and other) objections would need to be seriously discussed and counteracted to establish the plausibility of a virtue approach to legal reasoning. More positively, however, I would like to conclude by suggesting some paths forward in a virtue-based research agenda in legal reasoning. First, it would be necessary to examine the collective sides of juristic virtue. In light of current work in social (legal) epistemology, it would be convenient to examine the potential ascription of virtue to collective legal agents (such as the jury and collegiate courts) and the way in which collective virtue relates to individual virtue in legal contexts. Second, virtue jurisprudence should meet design jurisprudence, to envision innovative ways of promoting virtue. A great deal of institutional imagination, informed by solid empirical work, is needed to imagine how changes -even minimal ones - in spatial, normative, and organizational legal structures may facilitate virtuous behavior. Last, experimental jurisprudence can provide extremely valuable insights into how to best understand and promote virtue in law. Thus, virtue jurisprudence intersects in important ways with what are some of the most exciting developments in contemporary legal scholarship.

Finally, a virtue account of legal reasoning has important political implications in that it puts forward a different societal ideal and an alternative conception of the role of law within it. At the end of the day, it leads to questioning nothing less than the feasibility of the modern idea of the law and the state, as a depersonalized institutional machinery that can order social life without relying on any personal qualities that subjects -citizens and legal officials- may come to have or fail to possess. The persistence of the ideal is unrelenting and continues to entice, as current enthusiasm towards the applicability of AI technologies to law conveys. However, the quest for institutions, rules and procedures that can make subjectivity dispensable is a chimerical endeavor. Law without subjects is, furthermore, not only impossible, but a flattened ideal. Ultimately, the turn to virtue is a trend towards subjectivizing law, thereby vindicating the relevance that the character of citizens and legal officials has for the proper working of our legal systems. Good rules and institutions necessitate personal virtue – just as personal virtue is also engendered by good rules and institutions. Personality and polity, ‘soulcraft and statecraft,’ as it was clear to the Ancient, are inextricably linked.⁷⁴ This insight, which is at the core of the project of virtue jurisprudence, carries with it a major shift in the current legal (and political) landscape, the exploration of which has barely begun.