The Global Justice Academy recently sponsored one of the workshops at the 10th Anniversary Edition of the Edinburgh Legal Theory Festival. In this blog post, the co-convenors of the Edinburgh Legal Theory Research Group—Richard Latta and Joaquín Reyes—report on the issues raised during the workshop.
The workshop on ‘Virtue ethics, Markets, and the Law’—held on Tuesday 5thJune, the second day of the week-long Edinburgh Legal Theory Festival (4th-8thJune)—was devoted, as its name suggests, to explore the implications of a virtue-centred approach to legal theory for a wide-ranging variety of related topics, including the relationships between power, virtue and the constitutional state (Dominic Burbidge), algorithmic governance (René Urueña), the Rule of law and the law of equity (Irit Samet), intent to contract and trust (Prince Saprai), and the future of virtue jurisprudence (Chapin Cimino). All sessions were followed by a lively discussion in which the participants had the opportunity to give and receive important feedback on their ongoing research projects.
The first speaker was Dominic Burbidge (Oxford). In his paper—’A Separation of Virtues’—he argued for a virtue-centred approach to the constitutional state, thus rejecting the idea of a ‘separation of powers’, suggesting instead to understand the branches of government—the legislature, the executive, the judiciary, and the Armed Forces—in terms of the cardinal virtues—justice, prudence, temperance, and fortitude, respectively—which each interrelate and mutually support one another. Antony Duff(Stirling), who acted as discussant for the paper, raised some interesting points aimed to clarify some of the middle-steps taken to arrive at the conclusion, which then became the matter of a lively discussion between the workshop participants.
The second speaker was René Urueña (LosAndes, Colombia). In his presentation—‘Virtue in Algorithms? Law and Ethics in Algorithmic Governance’—he proposed that virtue ethics may prove a useful complement to “traditional” deontological modes of algorithmic accountability—such as human rights and transparency. According to Urueña, virtue ethics is useful to turn the spotlight from automated decision systems to their developers and users, thus emphasising accountability of humans behind the algorithm. As Urueña argued, virtue ethics could define the sphere of diligence that could be expected of algorithm developers—be it as individual professionals, corporate actors, or as information fiduciaries of society as a whole.
In the next session, Irit Samet (KCL) presented some excerpts from her forthcoming book Equity: Conscience Goes to Market(Oxford University Press, 2018). In her presentation, she argued that Equity provides a useful complement to the Common Law’s formal ideal of the Rule Of Law and its fixation on tightly-specified rules that promote certainty and predictability. She defended the view that Equity needs to remain an independent body of law in order to promote what she termed as the legal virtue of ‘Accountability Correspondence’, which requires that when legal rules impose liability it should ideally correspond to the pattern of moral duty in the circumstances to which the rules apply. She argued that this legal virtue is vital for a successful legal system, and that Equity reintroduces equililibrium between ‘accountability correspondence’ and the Rule of Law.
The next presenter was Prince Saprai (UCL). In his paper—’Intent to Contract and Trust’—he defended a re-interpretation of the intent to contract doctrine—that is, the doctrine according to which for a contract to be legally binding the parties must have manifested an intention to be legally bound. According to Saprai, this additional intention to contract poses a problem for the promise theory of contract: if contracts are promises—that is, if they simply ‘reflect’ promissory morality—why is this additional intention even necessary? While this has led some theorists to doubt the place of promise in contract, Saprai argued that both contracts and promises serve similar ends, but they do so in distinctive ways. Saprai claimed that a republican re-interpretation of contract law opens the door to a correct understanding of the intent to contract doctrine, in which contract law is one of the ways promise fulfils its function of securing trust-based co-operation and gives meaning and shape to human relationships. Saprai’s paper was based on a chapter of his forthcoming book called Contract Law Without Foundations(under contract with Oxford University Press). The book—which provided the underlying theoretical framework for the paper—claims that top-down theories of contract law—promise theory and the economic analysis of law—seriously mishandle legal doctrine by ignoring or underplaying the irreducible plurality of values that shape contract law. The book defends this plurality of values by developing from the ground up a radical and distinctly republican re-interpretation of the field.
Chapin Cimino (Drexel) gave the final presentation: ‘Adam Smith and Modern Virtue Jurisprudence’. In her paper, she distinguished between ‘substantive’ and ‘procedural’ accounts of virtue jurisprudence. Substantive virtue jurisprudence suggests that law set substantive standards of virtuous behaviour, with the perhaps unintended consequence of limiting rather than expanding individual choice. When this happens, virtue jurisprudence loses its pluralism while retaining its perfectionism, and is open to the critique that it is inconsistent with political liberalism. Based upon these and other criticisms, Cimino argued for a ‘procedural’ account of virtue jurisprudence, one that allows each citizen to pursue, within the normative framework of human flourishing, their own notion of a good life. She claimed that Adam Smith’s works on moral philosophy and jurisprudence are compatible with both political liberalism and Anscombean virtue ethics, and that scholars interested in virtue jurisprudence may do well to look to him for inspiration and direction in developing the field. In his role as discussant, Sebastián Figueroa(Adolfo Ibáñez, Chile) commended Cimino’s take on Smith, while also raising some concerns over the alleged compatibility between Adam Smith’s moral philosophy and Aristotelian virtue ethics.
This workshop marks yet another successful collaboration between the Global Justice Academy and the Edinburgh Legal Theory Research Group. We are proud to be associated with the GJA and we are deeply indebted for the sponsorship of this event that provided the Group’s members, the speakers, as well as the wider academic community, with such an academically stimulating and research inspiring environment for the ongoing development of contemporary legal scholarship.