A Study Of Lawrence Soren's Thought On Virtue Jurisprudence

The development of jurisprudence is closely related to the progress of ethics.For a long time,the progress of ethics has been promoted by the dispute between consequentialism and deontology,and has profoundly affected the face of jurisprudence.The dispute between utilitarian jurisprudence represented by Bentham and Mill and the deontological jurisprudence represented by Kant,as well as the argument between legal formalism and legal realism,are all utilitarian ethics and deontological ethics.The embodiment of academic disputes in the context of jurisprudence.In the 1950 s,Elizabeth Anscombe's "Modern Moral Philosophy" marked the revival of the long-sought virtue ethics.It not only provided new ideas for the development of ethics,but also expanded the development prospects of jurisprudence..Many scholars use virtue ethics as a weapon to sharply criticize utilitarianism and deontology,and in the process developed a new branch of jurisprudence-virtue jurisprudence,of which Lawrence Solum's research results are the richest value.Lawrence Solum's virtue jurisprudence is a jurisprudence that puts virtues rather than rights or duties at the center,and its foundation is Aristotelian ethics.In the core categories of Solum's theory,law,virtue,justice and prosperity are the four most important concepts.Law is not only positive law,but should be understood as the basic social norms in a society that coordinate human interactions;virtues are the character traits or excellence possessed by human beings,which are divided into moral virtues and intellectual virtues.Intellectual virtues are excellence related to human's mind,which is called the rational part of the soul by Aristotle,and moral virtues are related to human character and emotion;justice is a special virtue,which should be understood as "lawfulness",that is following the basic norms of society,the latter understanding is more desirable.Prosperity is a function and state of human beings.When human activities conform to their own social and rational characteristics and demonstrate human excellence or virtues,prosperity is achieved,which is the ultimate goal that human life can pursue.Based on these four important concepts,Solum came up with several basic propositions of virtue jurisprudence: 1.The aim of law is to promote human flourishing;2.Legal practice must pay more attention to virtue;3.Justice is the most important virtue;4.Equity is not in conflict with the spirit of the rule of law.In the context of legislation,virtue jurisprudence clarifies the purpose of legislation and how it works: legislation should be aimed at promoting the human flourishing,and human flourishing requires peace and social development.Therefore,legislation needs to be dedicated to eliminating violence and poverty,and creating a vigorous and harmonious social environment.In the context of justice,virtue jurisprudence has set a benchmark for the character traits and judgment methods of judges: judges should possess such virtues as temperance,courage,and temperament,and avoid vices such as greed,cowardice,and indifference;judges should be virtuous,and make virtuous decisions,and a legal decision is a decision made by a virtuous judge.The inherent flaws of the law cause judges to go beyond the literal meaning of the law to practice equity when necessary in order to achieve justice.However,there may be tension between this and the rule of law.If the law is understood as the basic social norms,and the virtues of justice as "lawfulness",then equity is the transcendence of the legal literal meaning after the basic social norms are internalized,which does not violate the spirit of the rule of law.Solum's theory of virtue jurisprudence has important contributions to both theory and practice.It prompts us to reflect on important issues such as the concept of virtue and justice,and provides a way of looking at legal practice from the internal aspect of the subject;However,it also suffers from insufficient conceptual clarity and overly obvious communitarian value positions,and due to its distinctive "American characteristics",it may encounter conceptual and institutional difficulties when participating in legal practice.