Justice as Law's Constitutive Virtue: A Functional Reassessment

Some kinds can succeed or fail on their own terms: clocks and universities, hearts and kidneys, assertions and promises, plays and novels can all be specifically evaluated as good or bad instances of their kind. Legal philosophers often evaluate law in similar terms, and some claim that justice or a related moral characteristic is a virtue of law qua law. I argue, first, that the leading defenses of this claim fail because their explanatory schemas do not generalize across ordinary and less controversial cases of kind-relative evaluation, even as they illuminate important aspects of the broader phenomenon. Second, I develop a general account of kind-relative virtue based on three models, grounded respectively in agentive, etiological and systemic functions. These models converge in transforming the claim that justice is law's constitutive virtue into an empirical research program. The resulting framework also yields new readings of Hart and Dworkin, clarifies how historical and social-scientific findings bear on law's nature, and provides abductive support for understanding law as a goodness-fixing kind.