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Ethics and Government Lawyers Redux: Jeff Powell’s Happy Constitution

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2 Responses

  1. Interesting stuff, to put it mildly.

    Several observations and comments:

    Articulating a central role for virtue in jurisprudence has of course been one of the preoccupations of Larry Solum and, with Colin Farrelly, he’s edited a volume on same: Virtue Jurisprudence (2008). It would be nice to know where Powell’s work fits alongside material such as this (especially Larry’s, which to date is the most sophisticated of the bunch). Indeed, there’s even a work on eudaimonistic ethics as it relates to democratic theory and practice generally: David L. Norton’s Democracy and Moral Development: a Politics of Virtue (1991), that should be part of the discussion by way of assessing the originality of Powell’s argument as well as to what extent it is compatible with a proposal such as Norton’s. Indeed,it would be illuminating to see how Powell’s approach comports with “perfectionist politics” in general (cf. George Sher’s Beyond Neutrality: Perfectionism and Politics, 1997).

    There are of course various lists of virtues (cardinal and otherwise) found in several religious and philosophical worldviews of both Eastern and Western provenance, and thus it would be nice to know how Powell comes to justify his particular cluster of virtues: even though there’s reference to Aristotelian eudaimonia here, it’s obvious that he does not confine himself to classical Greek virtues. Moreover, there is one work that does a fine job of assessing the Liberalism’s somewhat ambivalent but no less thoughtful response to a “politics of virtue:” Peter Berkowitz’s Virtue and the Making of Modern Liberalism (1999). As Berkowitz argues, the “standard picture—which has been embraced by both liberals and their critics, and which, on the whole, has much to recommend it—is not in every respect adequate. It obscures an especially important matter: despite their rejection by and large of the idea that the state should be devoted to the promotion of human excellence, the makers of modern liberalism did not reject virtue as a critical category of moral and political philosophy, and never dreamed that a politics based on natural freedom and equality could achieve its goals independently of the qualities of mind and character of citizens and officeholders.” And William Galston, among others, has spoken to the question of specifically “liberal virtues,” also arguing that Liberalism has the capacity to recognize that it is not self-sufficient with regard to the virtues that sustain it but is nonetheless able to recognize and take advantage of this partial reliance on extra-Liberal virtues.

    Finally, I would think Powell’s work is not too far afield from existing work in constitutional theory, at least in spirit, and I’m thinking here in particular of James E. Fleming’s “constitution-perfecting” theory as outlined in Securing Constitutional Democracty: The Case of Autonomy (2006).

  2. Oh, one other thing: I’m also curious how Powell’s approach differs from both canonical and recent works in legal ethics, say, by the likes of Monroe Freedman, David Luban and Daniel Markovits.

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