On Aristotelian Criminal Law: A Reply to Duff

  • Kyron Huigens


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.


Practical Reasoning Supra Note Virtue Ethic Criminal Liability Retributive Justification 
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  1. 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. 2.
    See Kyron Huigens, Virtue and Inculpation, 108 Harv. L. Rev. 1423, 1480 (1995).Google Scholar
  3. 3.
    See Kyron Huigens, Solving the Apprendi Puzzle, 90 Geo. L. J. 387, 435–442 (2002);Google Scholar
  4. Kyron Huigens, Harris, Ring, and the Future of Relevant Conduct Sentencing, 15 Fed. Sent. Rep. 88 (2003).Google Scholar
  5. 4.
    See Michael Tonry and John C. Coffee, Enforcing Sentencing Guidelines: Plea Bargaining and Review Mechanisms in The Sentencing Commission and Its Guidelines (Andrew von Hirsch et al. eds, 1987), pp. 142, 155; Kevin R. Reitz, Sentencing Facts: Travesties of Real Offense Sentencing, 45 Stan. L. Rev. 523, 535 (1993). Account of the Defense in Law, 37 Ariz. L. Rev. 251, 252–253 (1995) (relying on Aristotle’s conception of judgment to give an account of duress in terms of states of character).Google Scholar
  6. 8.
    See Edmund L. Pincoffs, Legal Responsibility and Moral Character, 19 Wayne L. Rev. 905, 918 (1973) (arguing that punishment represents a demand that one develop and exhibit certain character traits); see alsoGoogle Scholar
  7. Peter Arenella, Character, Choice, and Moral Agency: The Relevance of Character to Our Moral Culpability Judgments, 7 Soc. Phil. Pol’y 59 (1990), reprinted in Crime, Culpability, and Remedy (Ellen Frankel Paul et al. eds, 1990), pp. 59, 61 (arguing that the so-called rational choice theory is inadequate to describe the criminal law’s concern with character); Claire O. Finkelstein, Duress: A Philosophical Google Scholar
  8. 10.
    Kyron Huigens, Virtue and Inculpation, 108 Harv. L. Rev. 1423, 1424–1425 (1995), cited in Duff, supra note 7, at 179.Google Scholar
  9. 12.
    Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 U.C.L.A. L. Rev. 1659, 1660–1661 (1992).Google Scholar
  10. 25.
    As Bernard Williams put it in one of his last essays, If there is such a thing as an essential nature of human beings, there is only one way in which it can rule anything out—by making it impossible. If it has failed to rule it out in that way, it cannot try to catch up by sending normative signals. Such an idea would make sense only if there were more teleology in the universe than is represented by evolutionary adaptation, and one thing we know that Aristotle did not know is that there is not. Bernard Williams, Relativism, History, and the Existence of Values in Joseph Raz, The Practice of Value (R. Jay Wallace ed., 2003), pp. 106, 116; but seeGoogle Scholar
  11. 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
  12. 27.
    See Kyron Huigens, The Dead End of Deterrence, and Beyond, 41 Wm. Mary L. Rev. 943, 1028–1029 (2000).Google Scholar

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© Kyron Huigens 2008

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  • Kyron Huigens

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