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Abstract

Judges must be wise. Sound judicial reasoning requires moral virtue. These sentiments about judging have been lost. They apparently belong to a bygone era. While many advocate self-restraint or prudence as judicial virtues, moral virtue has been conspicuously absent from the list. Except for avoiding obvious vices such as bribery, favoritism, prejudice, sloth, and arbitrariness, conventional wisdom maintains that being a good judge does not require being a good person. Even theorists sympathetic to a relationship between law and morality balk at making moral virtue a prerequisite of judicial decision making. Rather, many contend that judicial decision making is a matter of technical reasoning. On this view, judicial reasoning involves reasoning correctly either about the applicable legal rules or principles or about how the decision achieves an aim or end like economic efficiency. It is an art or a craft rather than a moral enterprise. Still others argue that reason, even with the help of moral virtue, cannot explain judicial decision making but that we must deconstruct judges' reasoning to determine what hidden presuppositions are guiding it such as presuppositions linked to race, gender, or class. On this account, judicial decision making is a matter of politics, not morality.

Aristotle, however, contends that judges must possess the moral virtue of corrective justice and the intellectual virtue of practical wisdom in order to determine the just result in all cases. Despite the widespread inattention to this claim, Aristotle's discussion of justice in Book V of the Nicomachean Ethicshas had an extraordinary impact on the history of philosophy of law and legal theory. Aristotle's discussion of a particular form of justice, corrective justice, has been generally thought to mark the beginning of the philosophical examination of tort law. This influence has not only been important historically but also continues to have significant influence on legal scholars today. Many scholars consider corrective justice, of one form or another, the main normative alternative to the economic analysis of law for explaining not only tort law but also other areas of private law and law in general. Several legal theorists have developed new or modified versions of corrective justice to explain private law adjudication. Others have taken Aristotle's notion of corrective justice as central to their theories about private law or tort law. For example, Ernest Weinrib claims that "private law was Aristotle's discovery" and that "[c]orrective justice is the normative structure that underlies the private law relationship."

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