This is the penultimate piece of the symposium Ius & Iustitium is presenting on the classical legal tradition and the common good. Jamie McGowan’s reply to this piece, the final installment in our symposium, is “On the Tyranny of Rights.” A general introduction to the symposium can be found here. Michael Foran is a Lecturer in Public Law at the University of Strathclyde.
Questions relating to constitutional structure, institutional design, legal interpretation and so on are essential to distinguish a constitutional from a political project. Without a theory of institutional design, common good constitutionalism collapses into a collection of political ends, to compete with other political ends in the constitutional arena of the day. Certain constitutional structures or designs are more conducive to the common good than others. Put another way, the common good is not neutral with regards to how public power is constituted, exercised, or controlled.
The Right and The Good
Properly understood, the common good is the good of each member of a community and so cannot be equated with an aggregative or majoritarian conception of the public interest which sees the primary role of politics as finding the most acceptable compromise between competing interests. The private good of an individual cannot be neatly separated from the common good of the community: my life is better when my friends’ lives are better. My membership within a political community grounds the bonds of a civic friendship that connects all members of a polity. It is in our shared common interest that all members of our community be capable of leading flourishing lives and that they be treated with dignity and respect. To diminish the flourishing of others, to disrespect their dignity, in the name of the common good is to fundamentally misunderstand what makes the common good common. It also fundamentally misunderstands what it means to pursue a good life.
This alone has implications for the kinds of principles that can properly be associated with a constitutionalism committed to the common good. The common good is achieved through adherence to a body of principles which demand the pursuit of human flourishing through proper action. Right action thus contributes to the common good both in how it helps achieve human flourishing and in how it constitutes human flourishing through the expression and fostering of virtue. At the level of political and constitutional morality, it is therefore important to distinguish between two different kinds of principles, or perhaps what we might describe as two different ways that we might operationalise a normative commitment derived from a conception of the common good.
Consider the following example. Given space constraints and the clear moral truth of the proposition, let’s stipulate that rape is bad and that a political system oriented towards the good would adopt a commitment against rape. There are (at least) two ways that a legal system might operationalise a commitment to anti-rape. The first would be to attempt to reduce the amount of rape within the community. The methodology here is to identify an end that ought to be pursued, in this case the reduction in the amount of rape, and to pursue it through actions that best achieve it. If this were the only guide to right action, we could assess the morality of acts by reference to how they contribute to the achievement or frustration of that end. (Aquinas, ST, I-II, q. 18, art. 4). Of course, this is not the only guide to moral action, so this commitment needs to be balanced against other moral ends. While banning all recreational activity or requiring women to be chaperoned by a family member at all times might contribute to a reduction in rape, this would not mean that the policy is conducive to the common good, given the effect this would have on the capacity of members of our community to lead flourishing lives.
This commitment to reducing rape may also be constrained by reference not to the pursuit of other legitimate ends but to another kind of anti-rape principle. The above principle promotes anti-rape. This other principle respects anti-rape. It is what we might call a deontic commitment that instantiates a prohibition on the act of rape, regardless of its consequence. This principle will set limits on what can be done in the pursuit of the former anti-rape principle. Suppose that the public rape of rapists or their family members would dramatically reduce the amount of rape that occurred in a society, this would still not be an acceptable policy to pursue and would not be directed towards the common good. The promotion of anti-rape is in the common good of all and even the victims of this public violation of dignity would benefit from a society with less rape, but this does not mean that these victims have sacrificed their private good for the common good. It is not in the common good to promote anti-rape by disrespecting it. In this we see a cornerstone of Natural Law thinking encapsulated in the Pauline directive that we must not do evil that good may come (Rom. 3.8).
It is here where rights enter the picture. Principles of right action impose obligations on political actors to respect certain duties to refrain from certain forms of conduct, regardless of the consequences (ST, I-II, q. 20, art. 2, 5). Where those duties pertain to fellow members of our civic community, they entail fundamental rights that those members are entitled to the protection of. As Finnis, drawing upon Aquinas (ST, II-II, q. 58 art. 1), notes,
the object of the virtue of justice, and thus the source of the justness of just acts and arrangements, is that people all get what is theirs by right. Which is to say: that (to the extent measured by one’s duties of justice) each person’s rights are respected and promoted.
These rights are not subordinate to or in conflict with the common good, properly understood. A system of rights protection is itself a common good: the legal system is a good for each and every member of my community and fundamental rights not to be raped or tortured or murdered remain undiminished when one person is protected by them. It is therefore a mistake to view the common good as something removed from the fundamental rights of individuals such that it might act upon or supersede over them. Rather, it is better to conceive of the common good and the natural law as co-constitutive; the common good sets boundaries on and helps to define the limits of rights, but the common good is itself defined partly by reference to natural rights.
You cannot torture or rape your way to the common good. The person who is forced against their will to die for the State has not sacrificed a private good for the common good of peace. This person has been forced to sacrifice for the preservation of peace for the majority but not the community. To force someone to sacrifice their dignity or even their life so that the majority will benefit is to deny that person enjoyment of the common good and so to undermine what makes the common good common. This victim does not sacrifice a private good for a common good. They do not enjoy the common good. They’re dead. Someone may choose to make that sacrifice for the good of their community. There may be other reasons to justify conscription. But we cannot say that forcing people to die for us is in their own interest.
A common good constitution will be geared towards the pursuit of valuable ends that are conducive to the flourishing of all persons, but it will also necessarily entail respect for fundamental rights such that the means chosen to achieve those ends are reasonable and proportionate. It is a mistake to see the common good as simply a state of affairs to be pursued or a collection of ends to be promoted. It is also instantiated by respect for principles of right action. It is both deontic and teleological, and equally so. In classic theory, law is an ordinance of reason directed towards the common good and so unreasonable or wicked ordinances that breach the rights of subjects are not conducive to the common good and are not law (ST, I-II, q. 90, art. 4).
These fundamental rights are not private goods any more than peace or justice is private simply because my enjoyment is something that I experience as an individual. A system of law which ensures peace and justice for all is a common good that we all benefit from. Legal rights are public claims of right action according to justice. When I demand the protection of law, I am not appealing to a private good but to a public scheme of justice; to a system of fundamental principles that is not diminished when I benefit from it. My dignity is mine and not yours. But the system of duties and rights which protects our dignity is ours, shared in common, and beneficial to all. With respect to McGowan, it is fantastically Orwellian to describe this protection of dignity as tyrannous.
The Separation of Powers and Judicial Review
Common good constitutionalism is concerned with both public and individual claims, properly directed towards the good. But the common good must genuinely be common; its pursuit cannot collapse into a majoritarian consequentialism; it must remain respectful of the natural rights of individuals. In this post, I’m suggesting that this will have implications for constitutional design, specifically as it relates to the separation of powers and the judicial role.
Under our traditional separation of powers, the legislature, being the institution with the greatest democratic legitimacy, steers the ship of state, providing general guidance as to the direction of travel as well as general rules and principles for how we ought to get there. The executive, with its expertise in the implementation and drafting of policy, instantiates the crew by following the direction of the legislature, exercising discretion when appropriate. Finally, the judiciary focusing on the nuances of concrete cases, operates a course-correction function to ensure that the pursuit of legislative or governmental ends does not venture where it ought not. It ensures that the means used to achieve the ends of human flourishing do not breach principles of right action in so doing. This correction will inevitably have an impact on general principles that will be derived from specific cases such that the injustice or error that prompted one case is not replicated in others.
It is therefore quite unlikely that the executive or legislative role, focused as it is on general claims and policies, will be able to fully instantiate the common good. A common good constitution must envisage principles of institutional design that are conducive to the flourishing of each member of our community. If the common good manifests in both general policy and respect for individual rights, then there must be some way to ensure that those policies that purport to be in the common good are genuinely in the good of every member of the community. To do that, there must be some institutional mechanism available to resolve disputes which arise when an individual claims that a general policy infringes upon their fundamental rights or where the executive pursuit of its policy does not conform to the limits set down by the legislature or implied by the principles of natural justice and the rule of law.
The key point to be made in this context is that the skills needed to resolve disputes such as this are not the same as those needed to draft or implement general policy. There is a central role for a court of law here and there are good reasons to think that this role ought to be exercised independently from other institutions. As Aquinas (ST, II-II, q. 58, art. 1), citing Aristotle, notes, “A judge renders to each one what belongs to him, by way of command and direction, because a judge is the ‘personification of justice.'”
While the executive and legislature may be best placed to pursue general policies directed towards the common good, we should be careful not to equate those policies with the common good. Even policies pursued in good faith by political actors with democratic authority and longstanding expertise may nevertheless infringe upon the fundamental rights of individuals. For these general policies to genuinely operate in furtherance of the common good, they must be appropriately respectful of the principles of right action that constitute and maintain a flourishing community of equals. Importantly however, the principle of equality before the law means that the resolution of these disputes must have an impact upon general policy: to actually correct the course of travel, rather than prevent a single injustice but permit countless others affecting those unable or unwilling to go to court.
There is no reason to think that expertise in general policymaking is necessary for the judicial aspect of a common good constitution. Indeed, the nemo judex principle and the need for an impartial assessment of these rights claims should lead us to conclude that a separation of powers is essential for the common good. The body tasked with assessing the compatibility of these policies with the principles of natural justice should not be the same body who created the policy in question. This is to prevent abuse of power, yes. But it is also necessary because analysis of the impact of generally desirable policies on individual claimants involves a kind of expertise that is quite distinct from that needed to create or pursue policy itself. The role of the court here is to ensure that the pursuit of ends associated with the common good is respectful of the principles of natural justice and the entailed fundamental rights of legal subjects. Only then can our constitutional order be said to be structured in a manner that is conducive to the flourishing of all members of our community.
