Ekow N. Yankah | 2009 U. Ill. L. Rev. 1167
If at the end of your life you were told you had fulfilled all your moral duties, you would be proud. If you were told you had only fulfilled your moral duties, you would be less proud. We all aim to do more than fulfill our duties. We wish to have been more generous than obligatory, more patient, more wise—in short, we wish to be virtuous.
The insight that there is more to moral well-being than either our moral duties or good consequences is central to modern virtue ethics. In its important neo-Aristotelian strain, virtue ethics advocates that success in life is also determined by living an ethically rich life, showing sound practical reasoning and exhibiting the human virtues.
Virtue ethics is also importantly influencing jurisprudence. Understanding the role virtue plays in law reveals the way in which our criminal punishment regimes are based on a view of underlying poor character. When these insights are embedded in law, however, things go horribly awry. Because virtue theories premise blame, in part, on a failing of character within the offender, they alter our view of the offender and create a permanent criminal caste. With our compassion for the offender blunted, our ugliest prejudices flourish, and we fail to notice that our criminal law has become a powerful tool of racial and class suppression. Equally disturbing, even the most sophisticated character theories cannot be reconciled with our commitment to liberalism, particularly with the central place of autonomy within liberal-ism.
This Article argues that only by returning to Kantian and Hegelian Act theories of punishment can we dissolve the view of offenders as permanently tainted and stay true to our liberal commitments.