Virtue, Autonomy, and Empirical Research

Ekow Yankah has posted his paper, Virtue's Domain.  From the abstract:

Virtue ethics is . . . importantly influencing jurisprudence. Understanding the role virtue plays in law reveals the way in which our criminal punishment regimes are based on a view of poor underlying character. When these insights are embedded in law, however, things go horribly awry. Because virtue theories premise blame, in part, on a failing of character within the offender, they alter our view of the offender and create a permanent criminal caste. With our compassion blunted, our ugliest prejudices flourish and we fail to notice that our criminal law has become a powerful tool of racial and class suppression. Equally disturbing, even the most sophisticated character theories cannot be reconciled with our commitment to liberalism, particularly with the central place of autonomy within liberalism.

This article argues that only by returning to Kantian and Hegelian Act theories of punishment can we dissolve the view of offenders as permanently tainted and stay true to our liberal commitments.

Larry Solum comments on the paper, noting that:

it could be that some form of autonomy is constituitive of human flourishing.  Certainly, an Aristotelian virtue ethics could (and in my view should) adopt this view of the relationship between autonomy and flourishing.  If an appropriately conceptualized view of human autonomy is accepted as a constituent part of human flourishing and if the proper end of law is to promote human flourishing, then the law should aim to create the conditions for the development, maintenance, and excerize of autonomy by humans.  But as Yankah sees, this aim would be integrated with the promotion of other aspects of human flourishing.

And, getting back to Greg's post about the dearth of Catholic legal empiricists, Solum observes that the law's ability to articulate and facilitate human flourishing, including the prudent role of autonomy within that concept of flourishing, "is likely to turn on a variety of empirical facts."