Author: Adrian Vermeule

The Owl of Minerva and “Our Law”

Adrian Vermeule

Conor Casey & Adrian Vermeule[1]

On 28th February, William Baude of the University of Chicago Law School delivered the annual Scalia Lecture at Harvard Law School,[2] titled “Beyond Textualism?”—with startling results. Startling but also welcome, as we will explain.

The main question posed by Baude at the outset of his lecture is whether textualism is “missing something important”? Baude began in a conventional register by suggesting that textualism is said to reflect the “basic insight central to the structure of our government…and fabric of our law” that the job of the interpreter is (a) usually to enforce rules that have been made some place else, not to make the rules herself; and (b) not to imagine decisions that were actually never made by the legislature. In general, says Baude, the results of the “textualist revolution” have been “salutary” for embedding these ideas into legal practice and thought.

The talk, however, then took a sharp and surprising turn—indeed a turn towards the very approach to legal interpretation, the classical approach, that Ius et Iustitium was founded to advocate. Baude’s answer to the question posed at the start of his lecture turned out to be an emphatic yes. Textualism is grievously incomplete, Baude now argues, chiefly because it fails adequately to take account of other sources of law, including “unwritten background principles” and “natural law.” (Yes, everything in quotation marks is a quote from the lecture). Continue reading “The Owl of Minerva and “Our Law”” →

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” →

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.

Continue reading “Enriching Legal Theory” →

The Bourbons of Jurisprudence

Adrian Vermeule

Profs. William Baude and Stephen Sachs have published a review of Adrian Vermeule’s new book, Common Good Constitutionalism.  Ius & Iustitium is pleased to publish Vermeule’s response as a coda to our symposium on this work.

The Editors

Adrian Vermeule[1]

In a recent and illuminating paper,[2] Emad Atiq (a legal philosopher) and Jud Mathews diagnosed what they called a “jurisprudential turn” in public law scholarship, and argued that this turn amounted to a poorly theorized attempt to rule in certain approaches to public law theory, and rule out other approaches, on highly contestable grounds, by a kind of unwarranted conceptual fiat. One of the central examples Atiq and Mathews used to illustrate this critique is the work of William Baude and Stephen Sachs.[3] Baude and Sachs confidently imagine that their particular, highly idiosyncratic versions of positivism and originalism provide the yardstick against which all public law theories should be measured. They present as unquestioned axioms of legality and legal interpretation in our legal order what are, in fact, highly controversial views, which do not correspond to or derive from any recognized version of positivism in jurisprudence. As Atiq and Mathews put it, “[Baude and Sachs] argue that an originalist approach to constitutional interpretation is a requirement of law, and that this fact follows from the correct first principles about law—roughly, the positivistic claims of H.L.A. Hart. In fact, it takes work to clarify the controversial variation on Hart’s theory that underwrites their defense of originalism. … Baude and Sachs’ originalist conclusions do not follow from standard versions of positivism defended by Hart, Raz, and Shapiro.”[4] Continue reading “The Bourbons of Jurisprudence” →

How to Read Dobbs

Adrian Vermeule

Dobbs should, first of all, be celebrated — loudly, and without feeble misgivings about the disappointment of the supporters of abortion rights. It partially (and I stress partially) cured a kind of wound in our constitutional law that had festered over time, infecting and distorting not only substantive constitutional law, but also adjacent and ancillary bodies of law such as standing, procedure and remedies. Justice Alito’s opinion for the Court is entirely convincing that, taken on its own terms, the pompous claim of the controlling joint opinion in Planned Parenthood v. Casey — that the Court could call the contending national parties to settle their controversy — had not been fulfilled. Indeed Casey perversely produced all the more conflict. Casey and Roe had to be overruled to restore the body of our constitutional law to health.

Continue reading “How to Read Dobbs” →

Book Launch Cornucopia

Adrian Vermeule

The book launch for Common Good Constitutionalism took place last Thursday evening at the National Press Club. The run of show went as follows: (1) an introduction by Sohrab Ahmari; (2) my talk; (3) in-person responses from Judge Paul Matey, Jeff Wall, and Professor Patrick Deneen; (4) on video, a response from Judge Amul Thapar, who was unfortunately unable to attend in person; and (5) some thoughts by me in reply to each of the respondents. Unfortunately the program ran a bit long, so time did not permit questions from the audience. The program as a whole featured a genuine diversity of views, with Jeff Wall taking a rather libertarian perspective and Judge Thapar an originalist one.

This post includes, in order: (1) my written talk, which as inevitably occurs, differs slightly from the actual delivery; (2) an audio recording of the whole proceeding (barring a few words cut off at the beginning of Sohrab Ahmari’s introduction); (3) Judge Thapar’s video, posted separately because the audio quality of the recording of the whole may make it difficult for the listener to hear his remarks; (4) a written version of my reply to Judge Thapar in particular, again differing slightly from the actual delivery, and posted separately to make the discussion of Aquinas more accessible.

Please bear in mind that this was not a strictly academic event. These materials are informal and are posted in the hopes of advancing the debate. Enjoy! Continue reading “Book Launch Cornucopia” →

Pickwickian Originalism

Adrian Vermeule

We offer here a very few thoughts — essentially, only one thought — about a recent argument for a kind of generic originalism. The argument was published by Joel Alicea, a law professor at the Catholic University of America, in a draft paper titled “The Moral Authority of Original Meaning.”[1] Given that the paper claims to ground its argument in the classical legal tradition; that it has been heavily promoted by the quasi-official organs of legal originalism, such as the National Review and the Legal Theory Blog; and that the paper is, if nothing else, strikingly ambitious, a brief response seems warranted.

Continue reading “Pickwickian Originalism” →

Reviving the Classical Constitution

Adrian Vermeule

Out today in the New York Times is an essay published with a view to the upcoming release of my new book, Common Good Constitutionalism, published by Polity Books. (The essay started as an adaptation from the book, but isn’t really anymore, although of course the broad lines of argument are similar).

An excerpt from the essay:

What’s missing from our law today is an emphasis on the common good, a concept that from the founding era onward was central to the American legal tradition, embodied in the references to the “general welfare” in both the preamble to the Constitution and its text. The classical legal tradition, the mainstream of the Western legal tradition until the 20th century, holds that laws should be interpreted in light of the legitimate aim of government, which is the flourishing of the community as a community. Classical constitutionalism holds that our political community can succeed only as a whole, rather than as a collection of warring interests, competing ideologies and isolated individuals — the underlying logic of modern jurisprudence. The aim of constitutional government and legal interpretation should be to promote the classical ideals of peace, justice and abundance.

Continue reading “Reviving the Classical Constitution” →

Customary Law and Popular Sovereignty

Adrian Vermeule

Following are lightly edited remarks delivered at a panel on “Unwritten Law,” held at the annual meeting of the Association of American Law Schools on January 6, 2022. These informal remarks are of course not intended to be rigorous or comprehensive, merely suggestive. Many thanks to organizer Robert Leider and fellow panelists Jeremy Waldron, Steve Sachs and Ashraf Ahmed for their thoughts and contributions.

It’s difficult to know how to discuss the topic of unwritten law in twelve minutes. The topic is an incredibly heterogeneous one, full of analytic complications that require endless preliminary distinctions, such as the extremely pellucid and not at all confusing distinction, beloved of legal historians, between legal custom and customary law. So naturally I propose simply to heroically ignore all those conceptual preliminaries and tell you how I changed my mind on a fundamental substantive issue: the relationship between popular sovereignty and custom. 

Continue reading “Customary Law and Popular Sovereignty” →

Gnostic Constitutional Theory

Adrian Vermeule

A few brief thoughts in response to this interesting post on the Dobbs case by my esteemed colleague Steve Sachs. (I say nothing about Steve’s broader body of work, apart from the post). Steve writes that a failure to overturn Roe v. Wade would be an “extraordinary black mark for the conservative legal movement,” but would in no way damage originalism as such. After all, “[p]eople can call themselves ‘originalists’ and still be wrong about the original Constitution, just as they can call themselves ‘historians’ and still be wrong about history.” On Steve’s view, cited in the post, originalism is a standard that defines the rightness of right answers, not a decision procedure, let alone a foolproof decision procedure, for identifying those answers. It follows that originalism is untouched by any given misapplication of the standard, or even a long series of misapplications. “What kind of views of the Constitution do you hold, if you’d go look for new ones based on what some robe-wearing politician-approved bureaucrats say?… If you think originalism requires overturning Roe, and if it turns out that the Court’s self-described originalists still won’t do it, why conclude that originalism is lousy, and not that the Justices you’re mad at are lousy originalists?”

Continue reading “Gnostic Constitutional Theory” →