Month: November 2022

The Common Good As A Legal Concept

Adrian Vermeule

What follows are unedited remarks, without footnotes, delivered at the Abigail Adams Institute’s colloquium on the common good, held at Harvard University on Thursday, November 10. Thanks to the organizers and to fellow speakers Fr. Jeff Langan, Mary Hirschfeld, and Darel Paul.

I’ll talk today about the common good as a legal concept. And I hope you can hear in my voice that legal is in italics. That is, I’m going to sketch with criminal celerity the more distinctively legal side of the classical tradition and say a few words in praise of the civilian jurists as opposed to the philosophical and theological side of the tradition.

Let me begin with a simple point that the book emphasizes, but which some of the commentators have overlooked, although others have not. “The common good” in the legal sense is not to be seen, at least not solely, as an external concept, that the analyst uses to justify or evaluate the legal system. Rather, it is a concept used by actors within the system. And it is an absolutely ubiquitous concept. Indeed, it is often literally embodied in the language of enacted provisions and judicial doctrines. Lawyers have constantly to construe provisions or work with doctrines that refer in terms to “the common good,” “the public interest,” “the general welfare,” or similar terms. (I follow the comparativist Elisabeth Zoller’s analysis of the concept of res publica in treating these versions of the common good as relatives and cognates of one another).

In order to illustrate how lawyers have to work with the common good as a concept within the legal system, I’m going to begin by introducing some provisions, and even cite some cases, to provide a few scattershot examples from around the law and its history, at all levels of legal systems (and these examples could be multiplied almost indefinitely). So buckle up everyone, it’s going to be a wild ride. Continue reading “The Common Good As A Legal Concept” →

Lex and Ius in Football

Jacob Neu

What do you do in an official sporting event when something patently unfair happens? As it is football season in the US, I thought we could use a famous play as a light-hearted and enlightening example about lex, ius, the common good, and statutory interpretation. Now, I should be clear at the outset that judges and referees are not exactly the same. Referees are tasked with determining violations of the rules, and those rules are set based on the good of the game, not necessarily the good of the players involved. The referee also typically has little discretion about the implementation of those rules. Nevertheless, as the following story shows, on some occasions even referees look beyond the mere rules of the game.

Our story concerns the 1954 Cotton Bowl played between the mighty University of Alabama Crimson Tide and my alma mater, the lowly Rice University Owls. The Rice Owl football program has not had much historical success. At one time the Owls went 45 years—1961 to 2006—without earning a berth to a postseason bowl games. In 1962, when President John F. Kennedy announced that the US manned space program would send a man to the Moon, he gave the speech at Rice Stadium in Houston, Texas. As part of that speech, Kennedy asked rhetorically, “But why, some say, the Moon? Why choose this as our goal? And they may well ask why climb the highest mountain? Why, 35 years ago, fly the Atlantic? Why does Rice play Texas? We choose to go to the Moon. We choose to go to the Moon in this decade and do the other things, not because they are easy, but because they are hard.” So, yes, Rice has a bit of a reputation for historical football futility.

That was not the case in 1953, however, when Rice went 9-2 and won the Southwest Conference championship. On New Year’s Day in 1954, Rice played in the Cotton Bowl in Dallas, Texas against the champions of the Southeastern Conference, the Alabama Crimson Tide. Rice running back Dicky Moegle* turned in the game of his life, rushing for 265 yards and 3 touchdowns on 11 carries. (That’s an average of 24.1 yards per carry. For our international readers to understand how much this is, the current season’s leading individual rusher’s average is 7.5 yards per carry.)

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Bleeding Montana

Pat Smith

In August, Kansas voters rejected a constitutional amendment specifying that the Kansas Constitution did not protect a right to abortion or require the state government to fund abortion. In response, I wrote a piece here pointing out that this was precisely the result that the conservative legal movement sought via the Supreme Court’s decision in Dobbs. The only principled position, we have been told, is neutrality. The voters can approve or disapprove abortion as they like, but what matters is that the voters decide. The Constitution does not tell them what they must or must not do, and judges must not interfere with this posture of principled neutrality.

Such a position does not have deep roots in the classical legal tradition, which certainly does not hold that the law can be neutral on essential questions of morality, letting the voters decide such basic questions as who is alive. And one can find arguments against the idea in the American tradition, including in Abraham Lincoln’s arguments against Stephen Douglas’s principled neutrality on the question of slavery. I said so. New York Times columnist Ross Douthat took issue, saying that I “complain[ed] the Court did Something when it could have just done Everything itself.” The Institute for Human Ecology at the Catholic University of America even took a short break from posting pictures of the saint the day to amplify Douthat’s criticism. (Don’t worry: the Institute got back to posting pictures of the saint of the day.)

However trenchant the criticism may have seemed to Douthat and his friends at the Institute in August, it is by no means clear that it is so trenchant today. Five states had measures on the ballot relating to abortion. In California, Michigan, and Vermont, the question was whether to amend the state constitution to create an explicit right to reproductive freedom, which is of course a euphemism for abortion. In Kentucky, the question was about an amendment specifying that nothing in the state constitution protected a right to abortion. And in Montana there was a proposal to establish that children born alive were persons and entitled to legal protection. In each state, the pro-life position was rejected. In every state where life was put to the vote, the voters chose the other option. As Douthat says, the Court did Something instead of Everything—and what a Something!

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Enriching Legal Theory

Adrian Vermeule1 Comment

What follows are my notes from a semi-extemporaneous response I delivered at the conference on Common Good Constitutionalism organized by the Harvard Journal of Law and Public Policy and the Harvard Federalist Society on October 29, after receiving some but not all of the papers in advance and listening to the discussion. The other participants’ papers and presentations were largely working drafts of final products that will appear in the Journal. The oral delivery differed from these notes in minor ways. A full version of the talk with footnotes will appear in the Journal in due course.

The editors wish to thank Mario Fiandeiro, editor-in-chief of the Harvard Journal of Law and Public Policy, and the Journal editorial board for their gracious permission to publish this in advance of the Journal’s publication.

Thanks to everyone for coming. I think it’s been a fascinating event and suggests that these debates have only begun and will continue for a long time. Yet these debates also have an ancient history. The discussions we have had today are iterations, with appropriate variation, of discussions that happened in and during the last revival of classical legal theory, in the US and Europe in the 1950s and 1960s in the shadow of Nuremberg, when legal positivism for a time seemed patently inadequate. And those in turn were variants of many earlier iterations, going all the way back to debates over legal interpretation between the schools of Proculeian and Sabinian lawyers in Rome. Indeed, as will become clear shortly, the eternal recurrence of this sort of debate is itself, in my view, one of the great facts of history that we have to recover to make sense of our discussion today.

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