In a recent article entitled Virtue, Vice and Criminal Liability: Do We Want an Aristotelian Criminal Law?, Antony Duff describes a work of mine as “the most ambitious of recent Aristotelian accounts of criminal liability,” in a context in which it is plain that “ambitious” is not a good thing.1 Neither, for that matter, is “Aristotelian.” Aristotelian punishment theory attempts to describe the criminal law in terms of virtue. Virtue, for Aristotle, was not adherence to moral duties against one’s inclinations, but a quality of exemplary practical judgment by which the agent does right because the right is what he wants to do—not in the sense that he wishes to comply with a rule, but in the sense that his judgment is so well attuned to the good in ordinary affairs that the right course of action and its objectives are desirable to him. I have argued that the justification of punishment turns on an assessment of whether the defendant exhibited a lack of Aristotelian virtue in the conduct that violated the criminal law, because the inculcation of this kind of virtue is a justifying end of the criminal law.2 Duff finds this theory not only grand and procrustean but also wrong on the merits.
KeywordsPractical Reasoning Supra Note Virtue Ethic Criminal Liability Retributive Justification
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- 1.Antony Duff, Virtue, Vice and Criminal Liability: Do We Want an Aristotelian Criminal Law?, 6 Buff. Crim. L. Rev. 147, 179 (2003).Google Scholar
- 2.See Kyron Huigens, Virtue and Inculpation, 108 Harv. L. Rev. 1423, 1480 (1995).Google Scholar
- 3.See Kyron Huigens, Solving the Apprendi Puzzle, 90 Geo. L. J. 387, 435–442 (2002);Google Scholar
- Kyron Huigens, Harris, Ring, and the Future of Relevant Conduct Sentencing, 15 Fed. Sent. Rep. 88 (2003).Google Scholar
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- 10.Kyron Huigens, Virtue and Inculpation, 108 Harv. L. Rev. 1423, 1424–1425 (1995), cited in Duff, supra note 7, at 179.Google Scholar
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- George Sher, Knowing About Virtue in Nomos XXXIV, Virtue (John W. Chapman and William A. Galston eds, 1992), pp. 91, 99 (“But even if no specific way of life is best for everyone, our background beliefs may still identify various dimensions along which people’s lives can be more or less successful”).Google Scholar
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