This is the final piece of the symposium Ius & Iustitium is presenting on the classical legal tradition and the common good. It is a reply to Michael Foran’s piece “Rights and the Common Good.” A general introduction to the symposium can be found here. Jamie McGowan is a PhD Candidate, University of Glasgow. 

---

In the Rhetorica, Aristotle argued that judges should “be allowed to decide as few thing as possible”. In short, he was worried about how the subjectivity of individual cases could detrimentally affect the common good. St Albert and St Thomas shared this view with Aristotle, elaborating further that it is better to allow political institutions to create law for the entire community, and leave judges to deal with any omissions or make exemptions from the law as justice requires. This classical preference for political institutions seems to stem from three core concerns about the resources available to a court.

1. The court room is a forum where specific technical matters are debated. St Albert particularly decries how lawyers use (or misuse) law for litigatory victory, rather than using it to establish moral rectitude or pursue the truth.^[2] This tendency is not unheard of today; the intentional manipulation of the law for specific interests is commonplace in practices such as public interest litigation;
2. Courts are not typically endowed with foresight. St Thomas expressed a particular concern about how judges deal with cases as they arise, whereas lawmakers (mostly) have an abundance of time to deliberate and draft laws which are holistic and cater well for the entire community.
3. Courts are not endowed with political prudence. St Albert makes a very clear connection between good law and the lawmaker’s knowledge of the community to which that law is directed, “in order to lead them to the good.” This is apparent in St Thomas’ discussion of how law must always be made with peace in mind: while laws which are too lax will not encourage virtue at all, laws which are too strict will also not encourage virtue if they incite civil unrest. Knowledge of such a delicate equilibrium is not generally a resource available to judges, but oft available to politicians.

Courts, thus, are not the ideal forum for general norms (i.e. law) to be determined; rather, courts deal with exceptions and abnormalities to address the needs of right and justice in individual cases, through appeal to both the positive law and the natural law (and, by extension, the common good).

* * * Continue reading “On the Tyranny of Rights” →

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).^[2]

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.

1. More contemporaneously, this directive is expressed in the language of inviolable fundamental rights and reaffirmed as applying to government and those holding public office; John Paul II, Encyclical Veritatis Splendor ‘Regarding Certain Fundamental Questions of the Church’s Moral Teaching’ (6 August 1993), ss. 80, 95-101. ↑

2021 marks the 700^th anniversary of Dante’s death and has seen the publication on March 25 of Pope Francis’ Candor Lucis Aeterna, a lucid analysis of Dante and his work.  This is the second of a series of Ius & Iustitium pieces by Aníbal Sabater discussing lawyers in the Divine Comedy.  The first piece, “Dante’s Lawyers from Hell,” can be found here.

---

It is a stroke of literary genius and an astonishing legal insight.   The gatekeeper who meets Dante and Virgil upon arrival in Purgatorio turns out to be Julius Caesar’s archnemesis, staunch defender of the Roman Republic, and universal symbol against tyranny, Cato the Younger.  How a pagan divorcee and unrepentant suicide like Cato was spared Inferno and appointed Purgatorio’s warder is commonly explained away by reference to freedom.  Dante—the trite explanation goes—felt compelled to vindicate Cato who, like himself, had been an advocate of individual free will and liberty for the people.  While not incorrect, this explanation misses much of the nuance in Dante’s thinking, artfully revealed in the dialogues throughout Purgatorio’s two first cantos.

Cato’s opening words in the Commedia try to make sense of Virgil and Dante and show the deliberation characteristic of a fair judge.  He wonders whether they are rebels who, subverting natural order, have escaped Inferno, or whether they have been allowed to leave it and arrive at Purgatorio by a special grace: “Son le leggi d’abisso così rotte? / o è mutato in ciel novo consiglio …?” (“Are the laws of the abyss thus breached / or is there some newly changed decision in Heaven …?”).¹

The dispositive term here is “leggi” (laws).  Using it, Dante pays homage to the one hexameter that Virgil devoted to Cato in the Aeneid. Among the dead in Elysium—Book VI of the Aeneid says—Aeneas, saw “almost hidden from sight the pious, and Cato giving them laws” (“secretosque pios, his dantem iura Catonem”).² Through this and other sources, such as Lucan, Dante was well acquainted with the tradition that presented Cato as a wise legislator, the one to whom the pious—those who worship the gods of the family and the city—turned for guidance.  But Dante knew that man-made law (even if made by Cato) is just a lesser form of law, subordinated to natural, divine, and eternal law.³

In Dante’s mind, that Cato was once a wise legislator counts as a merit that allows him now to oversee the application of eternal and divine law in Purgatorio (it is his task to ensure that no one comes to Purgatorio who is precluded from doing so by God’s judgement, and conversely, that no one escapes Purgatorio before his God-appointed time).  Of course, this “promotion” from human lawgiver in Virgil’s Aeneid to supernatural law enforcer in the Commedia has biblical undertones: “He that is faithful in that which is least, is faithful also in that which is greater.”⁴

In the Commedia, Virgil and Dante immediately acknowledge Cato’s preeminence and divine commission.  Dante kneels to listen to Cato;⁵ and Virgil answers in detail Cato’s question about his and Dante’s arrival in Purgatorio, explaining that this is the result of a singular grace.  Moreover, in full submission to Cato’s authority as guardian of Purgatorio, Virgil asks Cato to approve Dante’s visit—and in doing so raises the issue of liberty. Dante, says Virgil, should be allowed to visit Purgatorio because “he is seeking liberty, which is so dear, as he who lays down his life for it knows. You know it, because death was not bitter to you in Utica, where you left the outfit [your body] that will be so pure on the great day” (“libertà va cercando ch’è sì cara / comme sa chi per lei vita rifiuta. / Tu’l sai, che non ti fu per lei amara / in Utica la morte, ove lasciati / la vesta ch’al gran dì sarà sì chiara”).⁶

Virgil’s words (which undoubtedly reflect Dante’s personal views) explain the role of Purgatorio.  It is the place where the soul is finally cleansed from sin and earthly attachments and reaches the true freedom necessary to enjoy the beatific vision.  But they also give away the reason that Cato is not in Inferno—and indirectly reveal the true goal of any law, positive or divine. 

Cato does not appear with the suicides in Inferno’s Canto XIII because his death, according to the Commedia, had a purer motive than despair or rebellion—namely, Cato’s desire to rid his body from unjust human laws, the positive laws that Caesar was enacting to restrict the freedoms of the republic and promote a personalistic legal order.[efn_note]Whether by placing an unrepentant suicide in Purgatorio Dante was going with poetic appeal over orthodoxy is heavily debated.[/efn_note] Cato thus receives praise in the Commedia for rejecting statutes contrary to the common good and natural law.  Had he—and not Caesar—prevailed in the civil war, Rome’s laws would have been better ordered.

In all this, Dante is in opposition to St. Augustine, who had a grim view of the Roman legal system, which he saw as driven by vice and—at the time of the Empire—a cult of the demonic.[efn_note]City of God, Books 1 & 2.[/efn_note] Dante, by contrast, thought that not only the Christian Empire but also its Roman predecessor were capable of good, and did not hesitate to place emperors from each of them in Paradiso, on a single condition: that the emperor had governed on earth “sub Deo et lege.”

That rulers, including the emperor, must act within the boundaries set forth by God and valid human law is of course a bold claim to make today… but it wasn’t at the time of Dante, especially for those who, like him, lived the Scholastic tradition.  El Fuero Juzgo, the Castillian legal code in force from the Middle Ages (if not before) until 1889, contained this stern admonition: “You will be King if you act rightly, and if you do not act rightly, you will not be king” (“Rey serás, si fecieres derecho y si no fecieres derecho no serás rey”).[efn_note]Fuero Juzgo, Prólogo (“De la elección de los reyes et de lo que ganan”), Ley 2.[/efn_note] In other words, the king is king so long as he acts for the common good; otherwise, his kingship is only apparent. Other 13^th Century Castillian laws went as far as warning the king that unjust behavior on his part would entitle his subjects to rebel.[efn_note]Siete Partidas, Part. II.1.10.[/efn_note]

Cato’s uber-Thomistic understanding of the law permeates his appearance in the Commedia.  Towards the end of Purgatorio’s Canto I, Virgil notes that Cato’s former wife Marcia, who, like Virgil, now dwells in Inferno, still misses and loves Cato.[efn_note]Pur., I, 78 and ff.[/efn_note] In Canto II, Virgil, Dante, and others are moved by a sweet song from Casella.[efn_note]Pur., II, 112 and ff.[/efn_note] In both scenes, Cato remains untouched, as if considering these events just human trifles, and urges his guests to focus on their penance and salvation and dispense with personal affections in Purgatorio.  This “unsentimentality” may seem anti-climactic, but it is a powerful poetic technique.   Law is an ordinance of reason, not of sentiment or the will, and it is becoming that its enforcer be a reasonable, not a passionate person.  That enforcer, however, is still in Purgatorio himself, and thus in need of spiritual improvement before ascending to Paradiso.  In Purgatorio, he is doing justice—but still needs to learn mercy.  Cato’s seeming coolness is thus Dante’s subtle preparation for the reader’s encounter with Trajan, the example of a merciful judge, which will be addressed in the next piece in this series.

—Aníbal Sabater

Ius & Iustitium is happy to present this guest post by O.A.S.

---

Last month, in its boundless charity, the Supreme Court announced that it would allow a Catholic foster care agency to continue to exist—at least for the time being.  More precisely, the Court held that the foster care agency can continue to operate until the City of Philadelphia amends its non-discrimination law to remove a minor and never-before-utilized exemption provision.  Once that happens, the City can again move to shut down the Catholic agency, and the parties can spend another several years embroiled in litigation. 

Continue reading “What Both Sides Got Wrong About Fulton” →

Ius & Iustitium is pleased to present this guest post by Kerry Sun, Stéphane Sérafin, and Xavier Foccroulle Ménard. Kerry Sun is a graduate of the University of Toronto, Faculty of Law, and a former clerk at the Court of Appeal of Alberta and to Justice Sheilah L. Martin at the Supreme Court of Canada. Stéphane Sérafin is Assistant Professor, Faculty of Law, Common Law Section, University of Ottawa. Xavier Foccroulle Ménard is a graduate of McGill University, Faculty of Law and the University of Toronto, Faculty of Law, and he works at Norton Rose Fulbright LLP. 

---

I. Introduction

In a previous essay, published in the Canadian law journal Constitutional Forum/Forum constitutionnel, we observed that recent debates on common good constitutionalism in the United States and elsewhere have reverberated in Canada.^[1] Discussing some misconceptions of the natural law tradition, we alluded there to the differing perspectives on legislative activity that distinguished positivist from common good-inflected accounts of legal interpretation.^[2] More recently, controversies have emerged pertaining to section 33 of the Canadian Charter of Rights and Freedoms, a peculiar feature of Canada’s constitutionally entrenched bill of rights that allows a legislature to override judicial interpretations of certain enumerated rights. These offer us an occasion for further reflection on Canadian constitutionalism and the common good, in a more concrete manner. 

Continue reading “Notwithstanding the Courts? Directing the Canadian Charter toward the Common Good” →

Pope Francis’s Apostolic Constitution Pascite gregem Dei drew considerable attention for the pontiff’s wide-ranging reforms of Book VI of the 1983 Code of Canon Law, containing the Church’s penal law. Much of the attention focused on the Pope’s revision to the laws dealing with sexual abuse. Francis has spent much of his pontificate addressing the filth of sexual abuse in the Church and the Church’s response. The new Book VI represents another major step forward in addressing in a serious way the abuse crisis and its consequences. However, there was some attention devoted to the Pope’s general comments on a jurisprudence of penal law within the Church. These comments have a much wider applicability. Indeed, Pope Francis’s insightful connection between charity and the penal law goes to the very heart of human law in St. Thomas Aquinas’s concept.

Continue reading “Charity and the penal law” →

June marks the one year anniversary of Ius & Iustitium.  We started this blog because we recognized a growing dissatisfaction with the mainstream conservative legal movement in the United States, and we perceived a hunger for a better alternative.  The blog went live two days after Bostock and two weeks before June Medical, two Supreme Court decisions that have rightfully shaken the faith in the conservative legal movement’s ability to deliver on its promises.  But the Ius & Iustitium project goes deeper than that.  What we propose is a fundamental re-thinking of jurisprudence that rejects the positivism and liberalism embedded in mainstream conservative legal thought and embraces the classical legal tradition.  

Continue reading “Ius & Iustitium, One Year On” →

We should start by acknowledging the clear positives in the Supreme Court’s decision in Fulton v. City of Philadelphia. First, the Court held that City foster care officials violated the Free Exercise Clause by refusing to contract with Catholic Social Services (CSS) for the provision of foster care services unless CSS agreed to certify same-sex couples for foster care in violation of its religious beliefs. Second, that conclusion was unanimous—every justice agreed that the City had violated the Constitution in some fashion. The liberal justices did so without even so much as a qualifying concurring opinion noting the narrowness of the majority’s holding, as we saw Justice Kagan issue in Masterpiece Cakeshop in 2018. Philadelphia lost and lost big; we should hope that City officials will take the lesson to heart. And if they don’t, we should hope the district and circuit court judges think again before ruling in the City’s favor a second time.

But therein lies the problem with Chief Justice Roberts’ majority opinion. The grounds underlying the decision are narrow—very narrow indeed. And recent experience suggests we should be wary of Philadelphia officials trying again to cut off CSS’s foster care certification services, with a judiciary again ready to cover for them.

Continue reading “Dance Lessons With the Chief Justice: Fulton v. City of Philadelphia” →