Research On Aretaic Theory Of Judging

Aretaic theory of judging is an important part of virtue jurisprudence,and it is an attempt to construct a theory of judging with virtue theory.The concept of virtue jurisprudence was put forward benefits from the rise of virtue ethics,which is the result of modern ethicists’ reflection on modern normative ethics by virtue theory since ancient Greece.In the development process of normative legal theories,deontology and consequentialism,which are their normative basis,have long occupied a dominant position.Deontic concepts such as autonomy and rights,and consequentialism concepts such as utility and welfare have become core terms in legal theory.The revival of modern virtue ethics in the middle of the 20 th century has also aroused the interest of legal scholars such as Lawrence Solum and Amalia Amaya to understand and reflect on the core proposition of modern legal philosophy with virtue theory,to explore the position of thoughts of virtue such as practical wisdom in law,and to think about the significance of law to the human flourishing.Different understandings of legal ideas will lead to different theories of judging.The defense of the Aretaic theory of judging is based on the interpretation of the nature of law.Through reflection on the proposition of “strong”indeterminacy in critical legal studies movement,Solum put forward the position of“underdeterminacy”.On the one hand,this laid a theoretical foundation for introducing virtue into the theory of judging;on the other hand,it has formed a theoretical coherence with his interpretation of “thick” judicial virtue.The core of thick judicial virtue is the virtue of justice,and "underdeterminacy" includes a considerable degree of determinacy,which is consistent with " justice as lawfulness".And because there is a certain degree of uncertainty in the law,it needs to rely on a(hypothetical)judge with virtue to realize " justice as equity" based on practical wisdom.On some core propositions of legal philosophy,the virtue-based theory of judging has put forward its distinct stand.virtue-based theory of judging is a theory of judging centered on virtue,so it does not reverse the judgment result to judge’s due virtues,but advocates that the just person has priority over the just result.The virtue-based theory of judging holds a position of particularism in legal reasoning andemphasizes the key role of practical wisdom in legal argumentation.The virtue-based theory of judging and virtue jurisprudence are normative legal theories with the ultimate aim of human flourishing.In the field of legal fact-finding of virtue-based theory of judging,the theory of virtue epistemology can provide useful enlightenment for us to understand the attitude of legal fact finders towards evidence.The attitude of the fact-finder to the evidence can be divided into two forms: “ belief” and “acceptance”.The belief is completely based on the evidence.In the field of judging,the attitude of “acceptance” can be derived from purposes and evidentiary rules other than evidence,which is a kind of moral acceptance.Theory of virtue responsibilism can explain this “acceptance”attitude,which brings beneficial enlightenment to legal fact-finding,that is,what kind of cognitive attitude should be possessed by a fact-finder.The narrative coherence theory in legal fact-finding has its advantages over Bayesian approach,but it still has flaws in justification,and consistency in evidentiary judgments can also be formed based on false or evil beliefs.Therefore,the combination of the cognitive responsibility of the fact-finder and the coherence theory can better guarantee the evidentiary judgments.Amaya put forward the viewpoint of “optimal coherence” on this basis.The “ acceptance” attitude towards evidentiary judgments based on cognitive responsibility is an integral part of the “ optimal coherence”.The current situation ofresearch of philosophical basis on tort law can best reflect the dominant position of the theory of consequentialism and deontology in the current normative legal theory.This paper holds that the approach of economic analysis of tort law can not accurately describe the practice of tort law,but also has normative flaws in dispelling personality values.However,the mainstream theories of corrective justice are all reduced to derivative concepts of rights theory,thus making the content of corrective justice empty.Therefore,under the theoretical premise of unity of virtues,corrective justice can be regarded as a judicial virtue by virtue of Truran’s theory,and judges can specifically determine the substantive content of corrective justice according to practical wisdom in combination with the purpose of good life.In the context of the process of China’s rule of law,virtue-based theory of judging can also provide some useful enlightenment for judicial reform.We should also attach importance to virtue resources in our cultural tradition.However,regardless of the source of Chinese and western virtue,it is necessary to furtherpromote “localization” and “modern reconstruction”.