prudent prosecutor, The

tive moral judgment is uncertain.190 About a concrete linkage between them, there are good reasons to remain agnostic.

Perhaps because it is rooted in substantive moral theory, an ideal of character, moreover, remains "vague" about specific practices.191 Aristotelian or Kantian practical reason may not be practical enough for prosecutors.

Anthony Kronman is wrong to say that "the kind of moral quandary in which ordinary men and women find themselves from time to time, and which demands the exercise of reason, is for judges a routine predicament." He is confusing moral with normative, and moral reasoning with reasoning. Judges routinely confront issues that cannot be resolved by the application of an algorithm, that require instead the application of practical reason - that ensemble of methods, including gut reaction, that people use to make decisions when the methods of science or logic are unavailable or unavailing. This doesn't mean that the judge is in a "moral quandary" and has to employ something called "moral reason" to get out. Editing a newspaper requires the constant use of practical reason, but only very occasionally the making of moral judgments.192

In this instance, prosecutors are like judges and newspaper editors. Neither substantive moral theory nor moral character may teach the prudent prosecutor the best exercise of her discretion. The Aristotelian ethics of virtue (which includes prudence) attributed "special moral insight to the virtuous agent .... Where the law is indeterminate, however, what operates is not insight but discretion. In such cases we make nonmoral choices among permissible acts."193

B. SUBSTANTIVE LEGAL JUDGMENT

of the prosecutor (the "Contextual View") provides the model for all lawyers: lawyers and prosecutors are "to seek justice."194 Because it incorporates moral principles, the legal norm of justice provides guidance for discretionary decisions:

Following [Ronald] Dworkin, Simon insists that the substance of any body of law is defined, constituted, and constrained by moral principles of justice. In Anglo-American law at least, and maybe in any mature legal system, it is just not possible to accurately state a legal claim or argument without incorporating the principles of justice that define its limits and animate its core. Nonpositivist moral principles such as "no person should profit from his own wrong," or "manufacturers should not fleece the unsuspecting public through form contracts that strip them of their rights to recourse in the event of negligently caused personal injury," for example, are not willy-nilly superimposed when a judge feels like it upon a body of otherwise positivistically pure and straightforward and amoral estate or contract laws. Rather, such principles of justice - potentially infinite in number and mind boggling in their complexity - are central to the law itself.195

With his emphasis on legal justice, Simon "rejects the common tendency to attribute the tensions of legal ethics to a conflict between the demands of legality on the one hand and those of nonlegal, personal or ordinary morality on the other."196 "Simon's is a law-centered theory... [in contrast to] alternatives that view legal ethics as `applications of ordinary morality' - what might be called morality-centered theories."197