Lawrence B. Solum
Solum argues that the central question of constitutional theory is not "what is the correct method of interpretation?" but "what makes a judge excellent?" — and that the answer is the classical virtues of justice, courage, temperance, intelligence, and practical wisdom, applied to the constitutional context.
Discussion Questions
- Do you agree with Solum that "what makes a judge excellent?" is a more useful question than "what is the correct method of interpretation?"
- Take Solum seriously and apply his question to a recent Supreme Court decision. What virtues did the deciding justices display? What vices? Does the question yield a different assessment of the decision than the usual ideological framing?
- Apply Solum's framework to Dobbs v. Jackson Women's Health Organization (2022) — both the majority and the dissents. Identify the virtues and vices on display in each. Is your assessment changed when you consider that the Justices in the majority faced sustained public threats and nonetheless held to their reasoning?
- Recall last week's three Scalia texts. Is the originalist who binds himself to the text exhibiting practical wisdom, or substituting a method for it? Does Solum's aretaic framework explain why a virtuous judge might choose originalist constraint — or does it expose that choice as a refusal to judge well?
Rosalind Hursthouse
Normative Virtue Ethics, in How Should One Live? Essays on the Virtues (Roger Crisp ed., 1996)
Hursthouse offers the canonical statement of how virtue ethics guides action. She argues that it issues genuine action-guidance through the "v-rules" ("do what is honest," "do not do what is uncharitable"), and that an action is right if it is what a fully virtuous agent would characteristically do in the circumstances.
Discussion Questions
- Hursthouse claims that virtue ethics is action-guiding in much the way a rule-based morality is — through the v-rules. Is she right that "act charitably" offers as much practical guidance as "do not lie?" Where does the guidance run out, and what does the agent fall back on when it does?
- A standard objection is that virtue ethics is uninformative because it directs us to the person of practical wisdom without telling us how to become one. Hursthouse replies that every ethical theory must somewhere rely on judgment. Is her reply persuasive, or does it concede the objection? Connect it to Aristotle on practical wisdom in Week 4.
Fr. Dominic Legge, OP
Father Dominic Legge's lecture frames the question in the natural law tradition. A good lawyer, on Father Legge's account, is one whose practice is ordered to the genuine goods that law exists to serve — and whose habits, formed over years of practice, reliably dispose them toward those goods.
Discussion Questions
- Father Legge's title is the question of the week. What does it mean to say that a lawyer is "good?" Distinguish the senses of the word: technically skilled, financially successful, morally upright, professionally respected, faithful to the rule of law. Are these aligned in practice? Where do they pull apart? When they pull apart, which should the practicing lawyer prioritize, and on what grounds?
- You now have three answers to "what makes a [judge, lawyer, person] excellent?" — Hursthouse's philosophical account, Solum's application to judging, and Legge's to lawyering. Do the three converge on one picture of professional virtue, or do the institutional roles of judge and lawyer pull the account apart?
Arthur C. Brooks
Brooks argues that the health of a free society depends on widely distributed civic virtue — and that the legal profession bears a particular responsibility for the cultivation and exercise of such virtue, given lawyers' role in public life.
Discussion Questions
- What specific responsibilities follow for you, beginning now, as a law student preparing to enter practice? Are there concrete commitments you might make in the next year that would constitute a small step toward what Brooks describes?