Deontology and consequentialism in court

Stanley Fish has a (typically) fascinating take on the Citizens United case recently decided by the U.S. Supreme Court. As a rule, I don't do political commentary here but I think this transcends politics and goes to the kind of moral question this blog is about. Fish distinguishes two philosophies behind the dissent and the majority.

The dissent is driven by a desire to interpret the law so as to create conditions where free speech can flourish. Fish rightly calls this by a name that will be familiar:

Prohibitions on speech, Stevens says, can operate “to facilitate First Amendment values,” and he openly scorns the majority’s insistence that enlightened self-government “can arise only in the absence of regulation.” The idea that you may have to regulate speech in order to preserve its First Amendment value is called consequentialism.

The majority is driven by a desire to interpret the law as law and, again, a familiar name crops up:

The opposite view of the First Amendment — the view that leads you to be wary of chilling any speech even if it harbors a potential for corruption — is the principled or libertarian or deontological view. Rather than asking what is the First Amendment for and worrying about the negative effects a form of speech may have on the achievement of its goals, the principled view asks what does the First Amendment say and answers, simply, it says no state abridgement of speech.

My question, not surprisingly, is where does virtue fit in? What is the virtue-driven interpretation?

For starters, it's at some distance from the law. Virtue is about individuals not about laws for everyone. The most you could do with virtue is to get some idea how the laws ought to be applied. For example, the law concerning justifiable homicide requires us to retreat if possible. It is only if I am firmly convinced that I and my loved ones cannot otherwise escape a serious physical threat that I can pull my gun out and shoot someone. Implied here is a standard of virtue. I will not be a hothead, I will make reasonable judgments and so forth.

As to the law itself, however, I will say little other than that deontology has a presumptive advantage because it is about duties as defined by law. And consequentualism always runs the risk of randomness and randomness is a very undesirable thing on the bench.

But more than that, I think there is an obvious reason to prefer one kind of deontology on the bench if we believe in virtue. For virtue requires us to treat people as adults and there is no question here which of the two schools could do that job better. Could, not does, because a deontological view could be paternalistic; the difference is that it doesn't have to be as consequentialism does. Or, as Fish puts it:

Holmes’s fatalism — let everyone speak and if the consequences are bad, so be it — stands in contrast to the epistemological optimism of Justice Brandeis ... it is Holmes who said that if his fellow countrymen wanted to go to hell in a hand-basket, it was his job to help them ...

And Holmes and Brandeis were both, I would point out, men of the left. The difference here is not a question of political ideology but of how we understand human beings as moral actors. Holmes sees the business of what Justice Stevens calls "enlightened self government" as no business of the courts.