The Enforcement of Virtue
- Author(s): Francis Buckley
- Date Posted: 2018
- Legal Studies #: LS 18-08
- Availability: Full text (most recent) on SSRN
When Hobbes announced that philosophy must be rooted on the definition of words, he meant to leave theology and metaphysics in the dustbin. We lawyers, especially criminal lawyers, have a different reason for insisting on the clarity provided by definitions. If a person is to be charged with a crime, it’s important that he know just how he has transgressed. Otherwise, he’ll not know how to avoid the law, and too much discretion will be given to prosecutors to pursue private vendettas or to criminalize political differences. The latter is a special concern when it comes to the crimes of political corruption.
To philosophers, all this might seem like that old television show, Woodworking with Mr. Chips, the carpentry of putting abstract ideas into action. To which the lawyer might respond, if you can’t put them into action what’s the point? Asking how corruption might be penalized also helps bring collateral concerns to mind. When it comes to public corruption, for example, the legislator or judge is required to measure the public’s concern for public integrity against other interests, such as the liberties citizens should be permitted to enjoy in a democratic society. That’s an insight that has eluded not a few theorists, including Robespierre. Without the guillotine, he said, virtue is impotent. “Terror is nothing but prompt, severe, inflexible justice; it is therefore an emanation of virtue.”
Philosophers might therefore find it useful to attend to the way in which lawyers and judges have struggled to define corruption. Philosophers might of course come up with a different, more expansive idea of corruption, since the criminal penalties imposed on the corrupt public official argue for a narrower definition of corruption at law. But even then, the lawyer’s tools are squarely within the traditions of analytic philosophy, after the difference in sanctions is recognized. Above all, one should want to resist the kind of philosophizing based on little more than free floating intuitions, in which everything might be corruption, or nothing too. Like a swimmer who finds himself enveloped by a squid’s cloud of ink, formless, unbounded and murky, the lawyer struggles for clear water clarity.