Here’s my talk on “What is the Common Good?” for the new Oxford Law/Blackfriars project on Law and the Common Good. It’s not a talk on political theory or theology, but on constitutional and administrative law. Both Anglo-American and European law, past and present, are full of provisions referring to the “common good,” “general welfare,” “public interest,” “public order,” and so forth; these have to be construed some way or other. Thanks to my interlocutors, Profs. Ryan Meade and Chris Conway.
Month: February 2021
Notes on the Ius Commune – Part I: The Hydra of Legal Positivism
Marx and Engels famously wrote in The German Ideology that «hundreds of earlier writers» (earlier, that is, than Max Stirner) agreed that «right originated from force» — i.e., from violence.
Anyone surveying the last 350 years of the history of jurisprudence may be excused for agreeing with them. It has been a history of monstrous heavings and shakings, where the law has been taken up and wielded as a tool for all kinds of delirious and utopian schemes. The common thread has been the demolition of the political-juridical principles of the prior order, which have been torn down, gutted, and redefined one by one. The justification for this razing of our juridical bastions has generally been connected to a claim that those old structures were offensive to the «rights of man». A claim about rights — a claim of justice — is thus at the heart of Modernity. But it is a claim of a perverted, defaced justice. «If the essence of “modern” culture is voluntarism (which is the intimate secret of rationalism)», wrote Cornelio Fabro, «one should not be astonished if the truth is then identified with action and right with force … The crisis of the world is a crisis of rights, in that it is first and foremost a crisis of their foundation, that is, of principles».1
Continue reading “Notes on the Ius Commune – Part I: The Hydra of Legal Positivism”The Moral Rule Against Retroactivity
Retroactive laws present vexing problems for lawyers. On one hand, they are awfully convenient, especially when a problem with the law is discovered. On the other hand, they are a favorite tool of tyrannies like Nazi Germany. They are especially disfavored in the penal context, especially in the Anglo-American tradition of the seventeenth and eighteenth centuries. However, the problem remains present in the jurisprudence of the twentieth century, notably in the work of Lon Fuller. Yet the condemnation of retroactive laws has deep roots in the classical legal tradition, going back to Justinian and Gregory IX’s Liber Extra. Indeed, one can find condemnations of the concept all the way back to Ancient Rome. Given that retroactive laws—and putatively retroactive administrative regulations—remain troublesome for lawyers and judges, the tradition provides an under-utilized source for considering the problem.
Continue reading “The Moral Rule Against Retroactivity”Reviving the Classical Legal Tradition in an Age of Legal Barbarism
Historians debate whether and how much the barbarian invasions of the fifth century marked a rupture with the Roman past in the former territories of the Western Roman Empire in Europe. Given the endurance of the Catholic religion and the Latin language (at least outside of Britannia and Germania), a strong argument can be made for continuity. Perhaps the clearest sign of rupture, however, was the eclipse of Roman law.
Continue reading “Reviving the Classical Legal Tradition in an Age of Legal Barbarism”