This is the first piece of the symposium Ius & Iustitium is presenting on the classical legal tradition and the common good. A general introduction to the symposium can be found here. Conor Casey is a Lecturer in Law, University of Liverpool School of Law & Social Justice. Adrian Vermeule is the Ralph Tyler Jr. Professor of Constitutional Law, Harvard Law School. Some of the text in this post is adapted from Vermeule’s forthcoming book Common Good Constitutionalism: Recovering the Classical Legal Tradition (Polity Books).
A specter is haunting constitutional theory—the specter of the common good. The hallmark of the classical legal tradition is that law, to be law, must be rationally ordered to the common good of the political community. We argue, as do others, that the classical legal tradition be explicitly revived, adapted, and readopted as the intellectual underpinning upon which officials and jurists understand the purpose and ends of political authority, law, and Constitutions. The foundation and rapid success of legal theory blogs like Ius & Iustitium, and research projects like the Common Good Project based at Oxford University, are testament to renewed interest in these questions.
Among both conservative “originalists” and progressive living-constitutionalists, considerable alarm has been voiced in response to such ideas. In April 2020, one of us published a short essay critiquing the dominance of originalist and progressive approaches to law and constitutional interpretation in contemporary legal thought, and calling for an embrace of ‘common-good constitutionalism’. It is fair to say the essay sparked heated debate and a rapidly growing response literature—some sympathetic (including a forthcoming piece by the other present author) but others hostile. In a rare joint-defense alliance, both originalist-libertarians and progressives condemned the idea as “dangerous.”
In this post, we suggest that several of the most common critiques of the revival of the classical tradition are based on serious misconceptions and tendentious, question-begging claims, especially for the superiority of originalism. When these misconceptions and circular claims are widespread in originalist or progressive circles, we call them “myths.” Disagreement about the classical legal tradition and its relationship to constitutionalism should, at a minimum, be grounded in a sound understanding of the concepts at play. Conjuring fictional intellectual ghosts to exorcise may be thrilling for the conjurer, but entirely useless to scholarship.
We take the following to be the most common myths:
- Legal and constitutional interpretation in the classical tradition “substitutes morality for law” and reduces legal questions to all-things-considered moral decision-making from first principles.
- The classical tradition “ignores the text” and has no respect for posited law.
- An official oath to respect the Constitution and laws requires an originalist approach to constitutional interpretation.
- The classical tradition licenses judges to rule as they see fit for the common good; common-good constitutionalism is thus synonymous with judicial supremacy.
- Alternatively, common-good constitutionalism is synonymous with executive supremacy and an absence of checks and balances on executive power.
- Common-good constitutionalism has no respect for human rights.
- Common-good constitutionalism is fatally undermined by the fact that there is and will be disagreement between classical lawyers over the content of the natural law in hard cases.
To understand the mistakes and tautologies that underpin these views, we need some basics. Law in the classical tradition is understood as an ordinance of reason ordered to the common good and promulgated under legitimate authority. The classical tradition distinguishes, as many European languages do, between two senses of “law,” lex and ius. (In Spanish, ley and derecho; in French, loi and droit; and so on. English, to its misfortune, has no stable version of this distinction and instead uses “law” and “right(s)” in confusing ways). Lex is the enacted positive law, such as a statute or an executive order or administrative rule promulgated under delegated authority. Ius is the overall body of law generally, including and subsuming lex but transcending it, and containing general principles of jurisprudence and legal justice.
In this conception, “law” can take various forms. Among them are ius civile, the positive civil law of a particular jurisdiction; ius naturale, or the universal law founded on right reason; and ius gentium, the law of nations. The classical conception of law emphatically recognizes the existence and value of positive law, but does not analytically stipulate that law can ultimately rest only on descriptive conventions recognized in equilibrium within a particular jurisdiction. The classical conception of ius civile, in other words, can be summed up as positive law without jurisprudential positivism.
To understand the value that classical law places on civil positive law and also the need to harmonize civil positive law with other legal sources—the concept of determination is essential. Classical law reads the positive law of a particular jurisdiction, the ius civile, in light of the ius gentium and the ius naturale, which the civil positive law is taken to specify or “determine” within reasonable boundaries. Determination is the process of giving content to a general principle drawn from a higher source of law, making it concrete in prudential application to particular local circumstances or problems. The need for determination arises when principles of justice are general and thus do not specifically dictate particular legal rules, or when those principles seem to conflict and must be mutually accommodated or balanced in particular circumstances. There are typically multiple ways to determine the principles while remaining within the boundaries of the basic charge to act to promote the common good—the basis of public authority.
The classical legal tradition thus treats enacted texts as products of the reasoned determination of public authorities. In contrast to the classical conception, both progressives and originalists today either deny the existence of the natural law altogether (the usual progressive view), or deny its relevance to law except in strictly historical terms, as background for the framers’ and ratifiers’ beliefs (the usual originalist view). Both camps therefore attempt, in different ways, to reduce all law to positive law adopted by officials; for them, all law is in this sense lex.
We are now better able to outline how common-good constitutionalism is effectively classical constitutionalism, and to dispel the myths outlined above:
Common good constitutionalism respects posited law and does not “substitute moral decision making for law.” It is entirely question-begging to say that interpretation in the classical tradition “departs from the text” or “substitutes morality for law.” Rather the classical tradition, in appropriate cases, looks to general principles of law and the ius naturale and ius gentium precisely in order to understand the meaning of enacted positive lex. Critics attempt to stipulate, without argument, that this approach represents a decision to do something other than law, but this is tendentious. Instead the classical approach is itself a mode of interpreting law, rightly understood.
On the classical approach, in other words, the law in general (ius) itself includes considerations beyond the enacted text of any particular law (lex). Positive civil lawmakers are strongly presumed not to wantonly violate background norms of reason that are constitutive of the nature of law. The background principles of ius themselves enter into and help to determine the meaning of lex. This does not at all mean that the classical tradition “ignores the text” or “pursues an activist agenda” or anything of that sort. Enacted texts deserve great respect as determinations of the legitimate public authority, but the law is broader than their temporary and local commands, and it is presumed that those commands can be and should be harmonized with the background ius.
Likewise, on this conception, the law (ius) is not anyone’s “arbitrary preferences.” There are right answers about what the law holds, although of course particular officials (not merely judges) can get the law right or wrong in particular cases. For Catholic legal scholars in particular, it is simply inadmissible—inconsistent with the whole tradition—to imply that law has no objective content beyond the text and original understanding of particular positive laws, or that ius is nothing more than the interpreter’s subjective and arbitrary desires.
Some argue that even if positive law is a determination of background legal principles, including natural law, it should be interpreted independently of that background in the interests of stability and durability. This is a sort of half-truth. The classical approach itself recognizes that interpreters of law typically should not venture an all-things-considered assessment of political morality from first principles; interpretation is always limited and conditioned by institutional roles, legal presumptions and standards of review, default rules, and other legal mechanisms for promoting institutional settlement and stability. Moreover, the very nature of determination is that background principles do not fully specify the content of positive law. Conversely, however, it is impossible for enacted legal texts (lex) to be interpreted in complete autonomy from the broader sources of law (ius). As both Aquinas and (much later) H.L.A. Hart argued, the limits of legislative foresight ensure that enacted texts will always contain crucial gaps and ambiguities, or that the provision the lawmaker laid down for standard cases will diverge from the common good in unusual cases. Hard cases are inevitable, and will have to be resolved by appeal to legal principles that help give meaning to the positive texts themselves (lex)—principles that are themselves very much part of law (ius).
The constitutional oath poses, rather than resolving, the question how “the Constitution and laws” should be interpreted. The argument for positivism and originalism from the constitutional oath is transparently circular, despite elaborate efforts to infuse it with methodological content. In itself, swearing to respect “the Constitution and laws,” or any similar vow, does not say anything about how the Constitution should be interpreted. Any such argument is always parasitic on the smuggling-in of suppressed, independent assumptions. Indeed, the constitutional oath argument for originalism is self-refuting, for the same reason originalism generally is self-refuting: as has been made indisputably clear by recent scholarship, the Framers themselves were not originalists. They were classical lawyers. Originalism is a creation of the post-WWII era, mainly of the 1970s, that has invented a tradition projecting itself back onto the past.
Common good constitutionalism does not entail judicial or executive supremacy. Advocacy of common good constitutionalism, and the classic legal tradition underpinning it, is emphatically not the same as advocating a particular allocation of institutional and interpretive power between different branches of government. The concept of determination applies not only at the level of particular legal rules, but at the level of institutional design of the whole constitutional order. The common good in its capacity as the fundamental end of temporal government shapes and constrains, but does not fully determine, the nature of institutions and the allocation of lawmaking authority between and among them in any given polity. Thus parliamentary, semi-presidential, and presidential systems; constitutional monarchies and republics; all these and more can in principle be ordered to the common good.
Likewise, the common good does not, by itself, entail any particular scheme of (for example) judicial review of constitutional questions. The common good takes no stand, a priori, on the debate over political constitutionalism versus legal constitutionalism, so long as the polity is ordered to the good of the community through rational principles of legality. A constitutional order where judges are bound to defer to reasonable determinations in the public interest by the legislature and executive (perhaps under legislative delegation) can itself be entirely conducive to the common good. It takes grave illiteracy about the classical legal tradition to suggest that it necessarily mandates a form of strong judicial supremacy.
Both of us happen to be sympathetic to the view that in particular polities, under given conditions, there are forms of constitutional ordering—centered around robust executive government—that are likely to be particularly conducive to pursuing the common good under contemporary socio-economic conditions. But this sort of view is not itself dictated by the classical legal tradition; it is an independent, constructive interpretation of the path of the law in some particular polity or other. The critics miss that questions of institutional design are not settled a priori. They are largely prudential determinations made with a view to securing the common good in the socio-economic conditions of a particular polity.
Rights (properly understood) are critical to common good constitutionalism. Rights are critically important to common good constitutionalism. The crucial distinction, however, between classical legal and modern juristic conceptions involves the question of the justification of rights. Even where rights may be held and asserted by individuals, such rights may be justified in strictly individualist terms or instead in terms of the common good, which is also the good of individuals, their highest good. Property rights, for example, may be justified either on individualist and autonomy-based grounds, or instead on grounds that emphasize their contribution to the flourishing of the community.
The latter sort of justification for rights is the ordinary case for the classical account of law. On the classical conception, rights are iura (the plural of ius) because ius is justice—affording to each what is due to each. Crucially, what is due to each—to individuals, families, associations – on the classical view, is itself determined by the common good, right from the ground up. Here the contrast with liberal theory is critical. It is not true, of course, that liberal theory takes no account of collective interests. But it takes account of them (1) aggregatively, as a summation of individual interests (“the greatest good of the greatest number”) and (2) as an override to rights justified in individualist terms, as when liberal jurisprudence talks of a “public order” override to rights determined elsewhere.
On the classical conception, by contrast, the common good enters into the very definition of rights themselves, from the beginning. There is no question of “overriding” the rights of individuals and families—what is due to them—for the common good. Rather it is a question of tailoring the scope of rights to the common good because that is the justification that already animates those rights, at every stage. The issue is not balancing, but specification and determination of the right’s proper ends and, therefore, its boundaries or limits. Deference to the political authority within reasonable limits—the “margin of appreciation” of human rights law—is built into this conception from the start, rather than tacked on as a controversial addition.
Common good constitutionalism is not uniquely vague or indeterminate. It is irrelevant that there was, is and will be disagreement between classical lawyers over the content of the common good and the natural law, in hard cases. The same is chronically true of the positive civil law, indeed of any body of law (whether lex or ius or both) that is more than trivial. Disagreement, by itself, is neither here nor there, and it is hardly unique to the natural law or the common good. Every year apex courts across the world give ample illustration that a body of lawyers may split almost down the middle as to the meaning of positive laws, yet without undermining the belief of any of those judges that there is nonetheless a right answer.
As Richard Helmholz puts it, partial indeterminacy “is true of virtually all fundamental statements of law – Magna Carta, the Bible, the United States Constitution, for instance. They have not lost their value or forfeited their respect among lawyers despite long continued variations in the conclusions to be drawn from their contents.” And, Helmholz continues, “natural law itself did not claim to provide definitive answers to most legal questions that arose in practice.” Rather it provides general principles that must be rendered concrete by determination.
In short, the possibility of “disagreement” is often cast as an objection to classical constitutionalism by those who ignore profound disagreements over the positive constitutional law, and over the best conception of abstract constitutional concepts embodied in that law, such as “liberty” and “equality.” This arbitrarily selective emphasis on disagreement is an infallible sign of ideology.
Conclusion
We have only sketched rejoinders to a subset of the relevant myths. We intend to elaborate on these points and more in a forthcoming book authored by one of us and a co-authored law review article forthcoming next year. For now, our hope is that critics of common-good constitutionalism will engage more substantively, forswearing the transparently stipulative, circular and unsuccessful sloganeering that has dominated the debate so far.
Conor Casey & Adrian Vermeule