It is time for social conservatives to abandon proceduralism and return to the classical legal tradition. Originalism and textualism, both types of positivism, have proven impotent in opposing the liberal concept of the good. Originalism and textualism do not offer any substantive vision at all. But not only have these “conservative” philosophies failed to slow liberalism’s progress, today they are used to justify decisions that even the most committed progressive could scarcely have dreamed of just a few years ago.
But what is the alternative for conservatives who reject liberalism’s substantive view of the good and of the law? Roll over and play dead? Retreat into isolated enclaves and hope that norms of neutrality (long since abandoned by the left) will protect them?
We are calling for a return to an older tradition, a tradition that offered more than tired platitudes about rule of law and separation of powers. This tradition, sometimes called common good constitutionalism, is of course the classical legal tradition, that holds that law is an ordinance of reason, made by one who has care for the community, and which is promulgated. This tradition is broad and deep, ranging from Blackstone, to Aquinas, to Sabinus, to Cicero, to Thomas More. In Catholic Europe, this tradition, rooted in Roman Law, gave birth to the great civil and canon law traditions. In England, it gave birth to the great common law tradition.
Our aim here is to show that the classical legal tradition provides powerful justifications for the rule of law, morality, and social order, and that only this tradition can effectively combat the progressive onslaught against everything we hold dear.
On the Name
The word ius or jus, usually translated “right,” has a range of meanings:
- In its primary sense it means the just thing (or action), that is the thing or action due to another (objective right). That is, it is the object of the virtue of justice. For example, a fair share of the spoils of battle is due to Achilles—it is his right. Or, money is due to the baker who gives me the loaf. The spoils or the money are themselves the right. That is, it is not primarily that Achilles has a right to the spoils, but rather that the spoils are his right.
- Nevertheless, by analogy of attribution one can say that the subjective power that Achilles has over the spoils (that is the moral power that he has to unhindered possession and use of them) can also be called a right (subjective right).
- In many languages a further extension of the analogy is made by which the name right is also given to that by which we know what is due to whom, that is, the science and the art of jurisprudence. In English it is customary to say that one ‘studies law,’ whereas in other languages it is customary to say that one ‘studies right.’ Strictly speaking, law is a source of right. The prudence of the law-giver distributes objective rights with a view to the common good. The jurist looks at the various kinds of law (divine, natural, canonical, civil, etc.) to determine what is due in particular cases. The jurist looks at the whole ‘juridical order,’ that is, the whole system of rights, which is directed to the common goods of the various societies which persons make up.
- In Latin there is yet another analogical extension of the word ius to mean the institutions for administering justice, or the business of the courts of justice. Thus a man can be said to appear in jure, meaning in a legal proceeding in a court.
The term iustitium means a suspension of normal juridical proceedings. It is probably derived from ius sistere, where ius is taken in sense 4: legal business. In particular exceptional emergencies the common good can actually demand that normal juridical procedures be suspended. Thus Cicero writes in the fifth Phillipic:
I think that the business that is to be done must be done without any delay and instantly. I say that it is necessary that we should decree that there is sedition abroad, that we should suspend the regular courts of justice (iustitium edici), order all men to wear the garb of war, and enlist men in all quarters suspending all exemptions from military service in the city and in all Italy except in Gaul.
Iustitium too can be extended by analogy to refer to the kind of action that is necessary when the juridical establishment has become corrupt, giving primacy to subjective rather than objective right, thus severing the juridical order from the common good.