Judicial Virtues and Vices: Thinking About Character

Lawrence Solum September 2010

Outline

Two Antinomies Virtue Ethics Virtue Jurisprudence Aretaic Theory of Judging Rules & Equity Dissolving the Antinomies Implications for Judging

Outline

Two Antinomies Virtue Ethics Virtue Jurisprudence Aretaic Theory of Judging Rules & Equity Dissolving the Antinomies The Implications for Judging

Two Antinomies

The Antinomy of Rights and Consequences

Deontological approachesDworkin Consequentialist approachesKaplow/Shavell Legal RealismLlewellyn, Kennedy Legal FormalismBlackstone, Scalia

The Antinomy of Realism and Formalism

The state of legal theory

The legal analyst should only consider welfare! Rights versus

Consequences
Louis Kaplow

By welfare, Louis means a BergsonSamuelson Social Welfare Function, such as

W u
h 1

Steven Shavell

Rights versus

Hercules will only consider arguments of Consequences principle!

Rights versus Consequences

Two mutually exclusive and inconsistent views of normative legal theory.

Two Antinomies

The Antinomy of Rights and Consequences

Deontological approachesDworkin Consequentialist approachesKaplow/Shavell Legal RealismLlewellyn, Kennedy Legal FormalismBlackstone, Scalia

The Antinomy of Realism and Formalism

The state of legal theory

Realism versus Formalism The is appellate The rule of law court is where a law of rules! policy is made.!

Sonia Karl Llewellyn Sotomayor

William Antonin Blackstone, Scalia

Realism versus Formalism

On the one hand, we are all realistswe all seem to believe in an instrumentalist conception of law. Policy talk is ubiquitous. On the other hand, formalist intuitions are stubborn. Some interpretations are out of bounds. We may want the law be sufficiently indeterminate to conform to our ideals, but once it does conform, we want it to be hard law.

The State of Legal Theory

Contemporary legal theory is characterized by two opposing tendencies with respect to the two antinomies. Tendency One: Perpetual warfare, examples:

The debate over Kaplow & Shavells Fairness versus Welfare. The debate over CLS & the indeterminacy thesis in the 1980s.

Tendency Two: Mutual disengagement, after these debates, everyone goes on as if they had not occurred.

Outline

Two Antinomies Virtue Ethics Virtue Jurisprudence Aretaic Theory of Judging Rules & Equity Dissolving the Antinomies The Implications for Judging

Outline

Two Antinomies Aristotles Ethics Contemporary Virtue Ethics Virtue Ethics Virtue Jurisprudence Aretaic Theory of Judging Rules & Equity Dissolving the Antinomies The Implications for Judging

Aristotles Ethics

Virtue ethics dominated moral philosophy until the modern period. Focus on Aristotle, historical importance & influence on contemporary virtue ethics. Other approaches to virtue, e.g. Stoics, Hume

Aristotles Ethics

Highest humanly achievable good is a life of rational activity in accord with the human excellences. Disposition to the mean with respect to a morally neutral emotion, i.e. fear. Practical Wisdom: Excess = cowardice. Translated as up the situation, Deficiency = rashness. happiness, but not moral vision. The Mean=courage. a feeling of well-

Eudaimonia The Function Argument The Virtues

Intellectual Virtues

The ability to size

Sophia (theoretical wisdom) Phronesis Courage, good temper, justice

Moral Virtues

phronimos sees being. what is morally salient & what Faring well and responses doing well. are workable.

Contemporary Virtue Ethics

Essay, Modern Moral Philosophy Critique of deontology & consequentialism. Suggestion that we turn to Aristotle. Leads to Philippa Foots Virtues & Vices.
Elizabeth Anscombe

Contemporary Virtue Ethics

No decision procedure for ethics, contra utilitarianism or Kantian ethics. Replace Aristotelian science with contemporary science. Excise Aristotles errors about women & slaves. The complexity of human life outruns Take into account contemporary metaethics.

any rule or procedure for deciding how to act.

Contemporary Virtue Ethics

Nancy Sherman Rosalind Hursthouse Christine Swanton

Julia Annas

Outline

Two Antinomies Virtue Ethics Virtue Jurisprudence Aretaic Theory of Judging Rules & Equity Dissolving the Antinomies The Implications for Judging

Outline

Two Antinomies Virtue Ethics Virtue Jurisprudence Aretaic Theory of Judging Rules & Equity Dissolving the Antinomies The Implications for Judging

Virtue Jurisprudence

An Aretaic Theory of Legislation

Eudaimonia & virtue as the end of law. The aretaic spin on the natural law/positivism debate.

An Naturalistic Theory of Law and Justice

An Aretaic Theory of Judging

An account of judicial virtue and vice.

Outline

Two Antinomies Virtue Ethics Virtue Jurisprudence Aretaic Theory of Judging Rules & Equity Dissolving the Antinomies The Implications for Judging

Outline

Two Antinomies Virtue Ethics Virtue Jurisprudence Aretaic Theory of Judging Rules & Equity Dissolving the Antinomies The Implications for Judging

Aretaic Theory of Judging

Uncontested Judicial These virtues will be
controversial. Different Judicial courage normative theories of justice will offer different Incorruptibility conceptions of justice and practical Judicial temperament wisdom.

Virtues
Every plausible normative theory of judging can endorse these virtues.

Judicial intelligence Judicial wisdom Justice

Contested Judicial Virtues

No one thinks judges should We need a theory of be cowardly, corrupt, stupid, the virtues of judicial and have anger wisdom and justice. management problems.

The Excellent Judge is Nomimos & PhronimosJust and Practically Wise

Nomimos

An excellent judge is Nomimos. The Greek nomos is more encompassing than our word lawincludes social norms. An excellent judge possesses practical wisdom. Legal visionability to size up the situation, perceive what is salient.

Phronimos

The Excellent Judge is Nomimos & PhronimosJust and Practically Wise

NomimosJustice

An excellent judge is Nomimos. The Greek nomos is more encompassing than our word lawincludes social norms.

The Phronimos fairness Judicial lawfulness

Wisdom

conception permits An excellent judge possesses practical wisdom. Two conceptions of the requires agreement reliance through Legal visionability to size up of the situation, virtue justice: on private, reliance on firstpublic, perceive what is salient. Justice as fairness & order normative second-order Justice as lawfulness. judgments.(nomoi). judgments

The Excellent Judge is Nomimos & PhronimosJust and Practically Wise

NomimosJustice

An excellent judge is Nomimos. The Greek nomos is more encompassing than our word lawincludes social norms. An excellent judge possesses practical wisdom. Legal visionability to size up the situation, perceive what is salient.

PhronimosJudicial Wisdom

The Excellent Judge is Nomimos & PhronimosJust and Practically Wise

Solomon (not Hercules) is the model of the virtuous adjudicator.

Nicolas Poussin. The Judgment of Solomon (1649)

Statement of the Theory

A judicial virtue:

Naturally possible disposition of mind or will that when present with the other judicial virtues reliably disposes its possessor to make virtuous decisions. Content identified by a theory of the judicial virtues. A judge who possesses the judicial virtues. A decision that would characteristically be made by a virtuous judge acting from the judicial virtues in the circumstances that are relevant to the decision. Identical to a virtuous decision.

A virtuous judge:

A virtuous decision:

A lawful decision:

Statement of the Theory

A judicial virtue:

Naturally possible disposition of mind or will that when present with the other judicial virtues reliably disposes its possessor to make virtuous decisions. Content identified by a theory of the judicial virtues. A judge who possesses the judicial virtues. A decision that would characteristically be made by a virtuous judge acting from the judicial virtues in the circumstances that are relevant to the decision. Identical to a virtuous decision.

A virtuous judge:

A virtuous decision:

A lawful decision:

Outline

Two Antinomies Virtue Ethics Virtue Jurisprudence Aretaic Theory of Judging Rules & Equity Dissolving the Antinomies The Implications for Judging

Outline

Two Antinomies Virtue Ethics Virtue Jurisprudence Aretaic Theory of Judging Rules & Equity Dissolving the Antinomies The Implications for Judging

Rules & Equity

Rule application

Phronesis is required for correct application of the rules. Rules do no apply themselves. Virtue jurisprudence accounts for the fact of lawful judicial disagreement.

Equity

Dworkin argues that there is a uniquely correct solution to each Life outruns codification. and every legal problem, but in a Phronimos can do equity in the Aristotelian wide range of cases, competent sense. lawyers believe that there is more than one legally correct resolution.

Outline

Two Antinomies Virtue Ethics Virtue Jurisprudence Aretaic Theory of Judging Rules & Equity Dissolving the Antinomies The Implications for Judging

Outline

Two Antinomies Virtue Ethics Virtue Jurisprudence Aretaic Theory of Judging Rules & Equity Dissolving the Antinomies The Implications for Judging

Dissolving the Antinomies

The Aretaic response to the antinomy of rights and consequences.

Similar to pragmatist absorption, but With a theoretical foundation.

The Aretaic response to the antinomy of realism and formalism.

They both tell part of the story. Practical wisdom and justice in a complex relationship. Not mechanical rule application; informed by legal vision. Equity not the imposition of personal preferences.

Outline

Two Antinomies Virtue Ethics Virtue Jurisprudence Aretaic Theory of Judging Rules & Equity Dissolving the Antinomies The Implications for Judging

Outline

Two Antinomies Virtue Ethics Virtue Jurisprudence Aretaic Theory of Judging Rules & Equity Dissolving the Antinomies The Implications for Judging

Implications for Judging

The importance of judicial selection The virtue of justice the values of judges matter, because lawfulness is a value. The virtue of practical wisdom the most important stage in the process occurs is not decision but sizing up the case perception. Character!

Virtue Ethics
An Aretaic Theory of Judging

Virtue Jurisprudence
Modern Moral Philosophy

Nomimos & Phronimos

Solomon, not Hercules

Outline

Two Antinomies Virtue Ethics Virtue Jurisprudence Aretaic Theory of Judging Rules & Equity Dissolving the Antinomies The Implications for Judging

Outline

Two Antinomies Virtue Ethics Virtue Jurisprudence Aretaic Theory of Judging Rules & Equity Dissolving the Antinomies The Implications for Judging

Questions

Action Guiding? Wicked Societies Equality Rival Theories of Equality Internalization Test Slaves & Women Nomoi Indeterminate Nomoi Disputed Pluralism Relativism Fact-Value Distinction

Legal Realism Situationalism Moral Realism Sources of the Nomoi Positivism/Natural Law Communitarianism Liberty Pragmatism Cash Value Social Construction More

More Questions

Aristotle on Justice Post-Marxist Gramscian Normative Economics Positive Economics Decision Procedures Ideal vs Nonideal Theory Success Conditions I Dont Buy It
It takes a theory to beat a theory

Happiness & Morality Positive or normative Fairness Conception Lawfulness Conception Baselines Judicial Disagreement Spock, McCoy, and Kirk Hercules & Solomon

Political Valence

Is virtue jurisprudence capable of guiding action?

Do as a virtuous judge would do?how does that provide guidance for action?

Analogous to problem with virtue ethics Hursthouse: The phronimos provides the standard for action. (Common sense version.) Swanton: The virtues provide the standard for action. V rules. (Act courageously.)

Several solutions:

For judges, the relevant virtue, justice, refers us to the nomoi, that is, to the social norms and laws of our community.

But dont expect a decision procedure.

The Nomoi in Wicked Societies 3 Cases

Well functioning society & ideal theory

Problem does not arise in a well-functioning society. Problem bracketed by ideal theory. Phronimos will do the best she can under the circumstances. Identifying the true nomoi.

Radically dysfunctional society

Mixed case. Reasonably well-functioning society with isolated wickedness.

Identify the wicked norms, act wisely. Limit the damage to the rule of law.
Rival Theories of Equality Equality Internalization test Relationship to slaves & women

Equality

Equality and aretaic theories of legislation

End of law is flourishing of humans & their communities. Martha Nussbaum & Amartya Sen. Equality of capacities for valuable functioning. Tradeoffs depend on complex and familiar factors, including level of economic development,
Nussbaum

Aretaic conception of equality

Internalization test: true nomoi must be capable of internalization by the phronomoi Comparison with rival theories (next slide)
Internalization test Relationship to slaves & women

Sen

Comparison with Rival Theories of Equality

Aretaic equality versus utilitarian equality

Each counts for one but only one & declining marginal utility of resources (wealth & income). Preferences (or other conceptions of utility) are too thin. Preferences can be shaped by culture.

Aretaic equality versus deontological equalitythe equality of what question

Rawlss two principles, equality of wealth & income, equality of welfare, equality of opportunity for welfare, equality of resources, equality of opportunity for resources.

Internalization test

Relationship to slaves & women

Aristotles Views on Slaves & Women

Very Bad! But: Distinctive virtues can be These views are inconsistent with modern science & the developed deep premises ofthrough his theory. emancipatory praxis . ethics depends on these Nothing in contemporary virtue views. B. Solum, Virtues and Lawrence And: Voices, Chicago-Kent Law His Review view of slavery had the consequence that almost all 111 (1991).

slavery was unjustified in Athens His view of justice in the family was progressive for 4th Century B.C. Greece.

Also, distinctive virtues of the oppressed.

Internalization test Relationship to equality

Internalization Test for True Nomoi

This test is internal to my theory & not Aristotle. To qualify as a nomoi, a social norm must be internalizable by fully virtuous humans, i.e., the phronomoi. To be internalizable, a nomos must be consistent with flourishing, i.e., the development and exercise of the virtues. Norms of exclusion and repression are inconsistent with flourishing. Exemplary case: Phronimos is a member of the excluded group. Example: Could Frederick Douglass internalize the norms that supported slavery?
Rival Theories of Equality Equality Internalization test Relationship to slaves & women

Indeterminacy of the Nomoi

Distinction:

Indeterminacy Determinacy Underdeterminacy Specification Resolution of conflict

The nomoi do underdetermine results: social norms vary in vagueness.

Two roles for positive law:

Radical indeterminacy would be a problem for any normative theory of law.

Nomoi are disputed

Yes and no.

Most social norms are uncontested most of the time. But there can be large and persistent disputes, especially given the fact of pluralism.

One role of positive law is to settle normative disputes. This requires sufficient agreement on social norms recognizing legitimate authority.

Pluralism

Objection:

Fact of pluralism. Virtue ethics could be characterized as a comprehensive conception of the good. Rawls/Solum: Legal reason should be public reason. Virtue ethics & virtue jurisprudence are consistent with pluralismJulia Annas. Virtue ethics & virtue jurisprudence can be formulated so as to rely only on thin conceptions of virtue, happiness, etc. Pluralism cannot be taken as a given for the purposes of ideal theory.

Three strategies:

Relativism

Different ways in which relativism could be relevant:

Descriptive relativismno argument yet. Metaethical relativism: no truth about morality. Normative ethical relativism: good is relative to community norms. Epistemic value of knowing about relativism.

Ubiquity of virtue talk across normative communities. The lawfulness conception of the virtue of justice absorbs some but not all of relativism. Epistemic modesty is appropriate but not decisive.

Noncognitivist metaethics!

Fact-Value Distinction

Three distinct points:

David Humes argument about fact premises & value conclusions. G.E. Moores open-question argument. Facts are empirically verifiable, values are matters of preference or emotion. Moral propositions are not truth apt.

Answers:

Humes argument is irrelevant. Moores argument is contested in metaethics. Noncognitivism

Moral Realism

1. Crude noncognitivist theories are nonviable. 2. Sophisticated noncognitivist theories make room for normative ethics. 3. Cognitivist alternative moral propositions are truth apt.

Legal Realism

Does virtue jurisprudence add anything to realism? (Qualification: Many realisms.) Reconcptualizations:

Llewellyns idea of situation sense is reconceptualized as the virtue of practical wisdom. Purposive interpretation of statutes is reconceptualized in terms of the relationship between the nomoi and the positive laws. Rigorous foundations.
These realist insights Flourishing versus interests. can be embedded in a Internalization versus instrumentalism. rigorous normative Level of normative theory versus description of legal theory. practice. Karl Llewellyn

Differences:

Situationalism

What is situationalism? John Doris & Gilbert Harman. Heated debate currently underway. situationalist claims are untenable. Extreme Social psychology. to trust folk and the Reasons Radical situationalism: all knowledge humans will perform same actions in the same situations. distrust social science. Experiments, including Milgram Experiments were not designed to test sophisticated character theorieswrong kinds of dispositions or character traits. Virtue ethics explains many of the results. Bottom line: commitment to the results of empirical inquiry.

Moral Realism

The Basic Realist Claim:

Morality is not invented, projected, or constructed.

Moral Natualism as an interpretation of moral realism.

Michael Thompson & Philippa Foot on Natural Goodness Natural science: biology & ethology. What are the characteristics of wellfunctioning humans & human societies?
Relationship to fact/value

Sources of the Nomoi

Possibilities:

Natural development of human communities.

Game theoretic explanations. Hard-wired, on the analogy of the capacity for language.

Universal moral grammar.

Criterion: the explanation should be naturalistic.

This criterion rules out constructivism or invention.

Positivism & Natural Law

General strategy: end run around the what is law debate. Three kinds of disagreement:

Conceptualnecessary content of the concept of law or essence. Descriptivewhether the law in a particular jurisdiction is best described by natural law theory or positivism. Normativewhether law as a practice should incorporate criteria of normative validity in the criteria for legal validity.

Nomos versus law: (1) conflicts between positive law & the nomoi & (2) nomoi that are defective because they fail to serve the function of law.
Razs Authority Argument

Razs Authority Argument

The argument:

Because law claims authority, the validity conditions for law must be content independent. But virtue jurisprudence does not adopt content independent validity conditions for positive law. Therefore, virtue jurisprudence is false.

The answer:

Razs premise about authority is false. It is the nomoi rather than law that are action guiding & it is internalization rather than authority that does the work.

Communitarianism

Points of comparison:

Aristotle on the Polis as a strong community. Particular communities as source of the nomoi. Flourishing of individuals and their communities. Humans are social creatures.

Points of difference:

Universal human nature. No a priori commitment to particular empirical claims about role of communities in flourishing.

Liberty

Is virtue jurisprudential essentially opposed to even modest libertarianism? End of law is fostering the acquisition, maintenance, and exercise of the virtues. But:

Role of liberty and autonomy in human developmentMills thesis. Role of liberty in the exercise of the diverse forms of life consistent with the expression of the virtues. The acquisition of the human excellences is a prerequisite for the full value of liberty.

And:

Pragmatism

Two forms of pragmatism: Ad hoc pragmatism Philosophical pragmatism: Dewey, James, without foundations isand Pierce. unsatisfying.

Legal pragmatism: Richard Posner, the Prairie Pragmatists, e.g., Dan Farber.

The aretaic reconceptualization of legal pragmatism:

Purge pragmatism of ad hoc particularized judgment. Provide theoretical foundations. Retain practical judgment and practical wisdom balance by the rule of law. Phronimos and nomimos.

Cash Value [I]f you follow the pragmatic

method, you . . . must bring out of each word its practical William James on Cash Value. cash-value, set it at work Defense of intrinsic value of within the stream of knowledge & its role inyour the legal academy. experience.

Quinean holism about the web of belief:

Connection of the core to the edge. Normative theory is relatively near to the core.

Feldman Quine

Particular applications: reasonable person standardFeldman.

Social Construction

Two Questions:

Is human nature socially constructed? Are the nomoi socially constructed?

Three perspectives: Empirical question! humans like other Aretaic theory No, (neutral between conceptions of --Universal moral grammer creatures have natural virtue) --Natural solutions to characteristics. We are NeoAristotelian Virtue Ethics (Hursthouse) problems of interaction social, rational, Natural Goodness (Foot/Thompson) --Contingency, pathcommunicating beings. dependence

Aristotle on Justice

Aristotle presents both the fairness conception and the lawfulness conception. NE, Book V. Opinion about the nature of justice reveal ambiguity. Possible implications of ambiguity:

Two virtues. Resolve the conflict in opinion. But not an essentially ambiguous virtue.

From the point of view of virtue jurisprudence, the task is not exegesis of Aristotle.

The Standard Post-Marxist Gramscian Question

In the capitalist Isnt justice -asmode of lawfulness production, simply the bourgeoisie rationalization values provide of hegemony!

the content of the nomoi.

More

Gramsci & Virtue Jurisprudence

The theory of natural goodness rightly rejects Gramscis assertions that:

There is no human nature. All concepts are historical, contextual, and arise from social relations.

Virtue politics could embrace Gramscis theory of norm reformation that recognizes that existing norms are sticky and must be transformed from within. Gramsci embraced Antonio Labriolas notion that Marxism is a critical theory every element of which is subject to revision.

Comparison with Normative Law & Economics

Normative law & economics is a family of theorieswelfarism, Kaldor-Hicks, pareto efficiency, etc. Exclusive versus inclusive versions.

Only welfare countsexclusive. Welfare counts tooinclusive.

Virtue jurisprudence absorbs inclusive normative law & economics but rejects exclusive variants.

Comparison with Positive Law & Economics

Virtue jurisprudence incorporates a moral psychology. Ends can be rationally chosen & preferences can be revised.

Gerald Dworkins view of autonomy, second order preferences and beliefs.

Akrasia or weakness of will. This may or may not conflict with the revealed preference assumption. Is akratic action contrary to preference?

A Decision Procedure for Ethics

Qualification: Many deontologists have taken this criticism on board, e.g. Barbara Herman. Why not a decision procedure? Complexity thesis:

Life outruns rules. General and abstract versus particular and concrete. Example: Attempts to formalize threshold deontology are unsatisfactory.

Role of practical wisdom (phronesis).

Ideal versus Nonideal Theory

Virtue jurisprudence as ideal theory:

Assume good faith efforts at compliance by citizens and officials (judges, executives, legislators). Begin with current conditions. Strategic action (ideological judging & judicial selection). Is transition possible?

Virtue jurisprudence as nonideal theory:

What are the success conditions?

What considerations bear on the decision to accept a large-scale normative theory of law? Two strategies:

The Method of Geometrydeduce from self-evident principles. The Method of Reflective Equilibriumcoherence with our considered judgments about: metaethics, moral and political philosophy, normative theories of doctrinal fields.

What counts as success? Sweep the field? On the table?

I dont buy it.

What does I dont buy it mean? Two standards:

The standard of rhetoric: theory acceptance depends on persuasion. The standard of philosophy: theory evaluation depends on the arguments.

It is possible to be in the psychological state indicated by I dont buy it, even without answers to the arguments. But this is not an appropriate standard for academic discourse.

It takes a theory to beat a theory.

Assumptions:

There are sufficient arguments to put the theory on the table. The topic at hand is theory apt.

Then: Theory comparison is required. What are the rivals of virtue jurisprudence:

Normative theories: consequentialism, deontology. Antifoundationalist theories: legal pragmatism, legal particularism.

Political valence

Is virtue jurisprudence liberal/progressive or illiberal/conservative? First answer: wrong level of generality. This is like asking whether consequentialism or deontology favors the Tories or New Labor. Second answer: virtue politics suggests the possibility of the reconfiguration of political space.

Happiness & Morality

Aristotles theory makes eudaimonia the highest humanly achievable good. Other regarding virtues (justice, beneficence, liberality) are argued to be constitutive of happiness & not opposed to it. Fundamental difference between modern and ancient moral theory. Julia Annas, The Morality of Happiness.

Is this a positive or normative theory?

Virtue jurisprudence is a normative theory of law.

Aretaic theory of legislation: what is the aim of law? Aretaic theory of judging: what makes for excellent judging? Moral psychology Account of the nature of lawembedded in a theory of the virtue of justice

Positive components:

Who are the phronomoi?

The problem of identifying the practically wise. If practical wisdom is rare, how do we know who has it. Compounded by ideological & political disputes. Who would you ask for advice? Who would you trust in a real emergency? Who would you want as your Dean?

Against the Fairness Conception

Justice is the disposition to act fairly, where the content is given by an antecedent theory of fairness.

Bernard Williamss essay, Justice as a Virtue.

The theory of fairness does all the work & threatens to swallow the rest of virtue ethics. The virtue does not do the necessary social workfirst order, private judgments.
For the lawfulness conception

For the Lawfulness Conception

Normatively attractive: allows the virtue of justice to serve the function coordinating social behavior & enabling the rule of law. Has the features of a virtue:

Stable disposition. Natural quality of well functioning humans.

Qualification: not just any social norm counts as a nomosmust be internalizable by the phronomoi.
Against the fairness conception

Nomoi & Baselines

Does the fairness conception of the virtue of justice assume natural baselines? Yes & No

Yes, in any given community, the nomoi provide baselines. That is the point of the lawfulness conception. No, the baselines can vary both synchronically (across cultures) and diachronically (within cultures across time).

Fact of Judicial Disagreement

Claim:

There is at least one legal issue (or concrete case) such that more than one resolution is legally correct. Different phronomoi (fully virtuous judges) could decide the same issue or case differently.

Reason:

Pace Dworkins Right Answer Thesis:

In each and every case, there is one and only one legally correct resolution.
The phenomenology of judging is that law does not run out.

Preserves Dworkins argument against Hart:

Spock, McCoy, and Kirk

Hot-Tempered

The Virtue of Proates

The Stoic Sage

Is Hercules really Solomon?

If Hercules were to take law as integrity seriously, then he would need to internalize the nomoi. But Dworkins Hercules seems to set a very low threshold of fit. Hercules moves easily to the method of moral philosophy. Dworkins Hercules embraces the fairness conception of the virtue of justice.