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Legal Vices and Civic Virtue: Vice Crimes, Republicanism and the Corruption of Lawfulness

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Part of the Ius Gentium: Comparative Perspectives on Law and Justice book series (IUSGENT,volume 23)

Abstract

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.

Keywords

  • Common Good
  • Legal Norm
  • Practical Wisdom
  • Moral Virtue
  • Legal Institution

These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

Published in 7 Crim. Law and Phil. 61 (2012).

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Notes

  1. 1.

    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 virtues. In political theory, a famous example is Raz (1986). In criminal theory, Anthony Duff (2012) leads the way in finding a balance between the demands of liberalism and communitarian and virtue oriented goals.

  2. 2.

    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).

  3. 3.

    An outstanding explication of this concept can be found in William A. Edmundson (2006).

  4. 4.

    All future references to Aristotle’s Politics refer to the same translation.

  5. 5.

    All future references to Aristotle’s Nicomachean Ethics refer to the same translation.

  6. 6.

    For an excellent example of the way criminal prohibitions contribute to and turn on virtue, see Kyron 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.

  7. 7.

    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 EN X.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); Kraut (2002: 132–133).

  8. 8.

    It cannot be denied that even on this picture civic virtue is exclusionary because it extends only weakly to those outside our polity. It is important to repeat, however, that those outside our civic community retain a broad array of human rights. Further, even Aristotle’s conception of civic rights maintained a minimum amount of regard for the well-being of those who fall outside of citizenship, a concept I hope to develop further in the future (Pol. I.6.; III.6.). I am grateful to the referee for pressing this point.

  9. 9.

    Though I do think that Cohen’s intuition that there is republican virtue in 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).

  10. 10.

    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.

  11. 11.

    163 U.S. 537, 540 (1896).

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Correspondence to Ekow N. Yankah .

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Yankah, E.N. (2013). Legal Vices and Civic Virtue: Vice Crimes, Republicanism and the Corruption of Lawfulness. In: Huppes-Cluysenaer, L., Coelho, N. (eds) Aristotle and The Philosophy of Law: Theory, Practice and Justice. Ius Gentium: Comparative Perspectives on Law and Justice, vol 23. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-6031-8_12

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