I’ll have a few more posts about scholarship derived from my SEALS panel, but let me take a break and actually do something that was the subject of one of those panels: promote my scholarship. I have posted a new paper on SSRN titled Judicial Character (and Does it Matter). It’s forthcoming in Constitutional Commentary, but editing is still at an early stage, so comments are decidedly welcome. (It has also received the coveted “Highly recommended” rating from Larry Solum, so I thought I’d strike while the iron’s hot.) Here’s the abstract:
This Essay, forthcoming in Constitutional Commentary, discusses three recent books about judicial decision making: Richard A. Posner’s How Judges Think, H. Jefferson Powell’s Constitutional Conscience: The Moral Dimension of Judicial Decision, and Daniel A. Farber and Suzanna Sherry’s Judgment Calls: Principle and Politics in Constitutional Law. It uses them as the foundation for an exploration of the nature and role of judicial character, or judicial virtue, in constitutional judging. All three books have in common the rejection of any single comprehensive theory of or approach to constitutional judging. What divides them is the extent to which they focus descriptively on the “is” of judging or normatively on the “ought” of judging: here, Posner and Powell represent the respective poles, with Farber and Sherry located somewhat awkwardly in the middle. I argue that in order for us to find some livable space between the “is” and the “ought,” we must take the aretaic turn: we must focus on the nature of judicial character or virtue and what it demands of the judge. Drawing on work on virtue ethics and virtue jurisprudence, I explore the role of judicial virtue and its relationship to constitutional decision making. I argue that the aretaic turn may help us to develop an understanding of judging that is both consistent with the judicial “is” and productive of new ways of thinking about the judicial “ought.” In particular, I argue that reflection on the meaning and implications of the judicial oath may provide a fertile space in which to recapture and reconceive a normative sense of the judicial virtues without neglecting the real-world motivations and limitations that act on judges. This Essay is a prelude to larger work on the relationship between oaths and the Constitution.
Let me add a few words. Although the essay makes apparent my view that Farber and Sherry suffer from trying to occupy the middle ground between Posner and Powell, as it were, all three books discussed in this essay are terrific, and the Posner and Powell books in particular are must-reads. I argue that those of us who are interested in legal process issues (and I recommend, for those who are, this set of materials for a course on that subject by Chad Oldfather) have to find a useful way of threading a path between descriptive and normative accounts of the judicial process: a path between the judicial “is” and the judicial “ought.” One way to do that is to take the aretaic turn: to be concerned with questions of judicial character, both in a descriptive sense and a more normative sense. Contrary to some of Larry Solum’s work, I don’t think we can derive very clear rules from this; and contrary to Farber and Sherry, I doubt we can come up with really detailed and convincing grounds to evaluate any given judicial decision on this basis. (The effort to do so is perhaps the least convincing section of their book.) But neither of these points takes away from the broader conclusion that character is an essential element of both the real world of judging and the normative ideals we might want to achieve in this area, and thus that it is vital to discuss questions of judicial character, in a way that is at once responsive to actual circumstances and interested in building a bridge between those circumstances and our larger ideals. I think the aretaic turn is a valuable way to do this. And I think the judicial oath in an important sense represents a fruitful space in which this project can take place. Finally, let me say that this is a prelude to a larger work — hopefully an eventual book project — on the relationship between oaths and the Constitution, not just for judges (the subject of my next big piece), but for other government officials as well. The oath is a central part of the constitutional machinery, but much more needs to be said about it. Hence, comments on this initial piece of the project are doubly welcome. I hope you enjoy it.
Posted by Paul Horwitz on August 10, 2009 at 10:49 AM
Comments
It’s intriguing, I think, to note that while there has been an increasing interest in aretaic jurisprudence in Anglo-American legal theory, an oft-heard (and in some measure justified) criticism of Islamic jurisprudence (in theory and praxis) is that it is too personalist (if not ‘communalist’) in the sense that the personal qualities (character virtues) of juridical actors (be it, say, a judge or a witness) are often paramount.
Posted by: Patrick S. O’Donnell | Aug 10, 2009 12:30:42 PM