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.
- 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;
- 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.
- 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).
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In the modern constitutional climate, rights are understood to be the defining aspect of many legal orders. In many countries, courts can strike down, reduce, or refer laws back to legislative assemblies due to their incompatibility with individual rights. This is, of course, a modern phenomenon insofar as courts have only assumed this dyarchical authority over political institutions fairly recently. In light of the Classical Tradition’s consistent suspicion of judicial power, it seems problematic that such a conclusive authority would rest with the judiciary.
However, rights still have an important role in any Common Good Constitution. While rights are not the cause of the common good, they are a means of its immediate realisation or predication. In Moral Philosophy, Henri Grenier answers the rights question quite plainly, by referring to the distinction between objective right and subjective right.
For Grenier, objective right simply refers to what is objectively right and, by extension, what is good – as St Albert says, the good itself is simply what is right and honourable.[3] And, since the common good is an honourable good, naturally it follows that one cannot consider what is objectively right or just, without considering the common good of a community simultaneously. These two things cannot be divorced; their union is hypostatic.
Subjective right, however, concerns those particular claims which we make in certain circumstances (e.g. the right to property, the right to liberty of person). And crucially, claims in subjective right should only be upheld if those claims are truly ordered to objective right. Thus, if one wishes to claim that one has a subjective right to freedom of expression, then one must demonstrate that this claim is ordered to what is morally right—and in order to be morally right, it must also contribute to or predicate the common good in some way. Thus, Grenier concludes that objective right must have primacy over subjective right, for otherwise “the jurical order is directed to liberty rather than to the common good”.
All rights, thus, must be ordered to justice and, by extension, the common good. To borrow from St Augustine, permit me to describe this juridical doctrine as ius iniusta non est ius; a right which is not right is not a right at all.
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When confronted with the question of whether the good of an individual can be separate from the good of the community, one ought to consider reframing the question. As Charles De Koninck explains, the Common Good is a bonum suum—a good proper to each individual. This means that the common good is not something foreign to the individual, but something that is wholly owned by each person. Accordingly, the common good is actually an individual good, because it is that person’s own good, as much as it is also the common good of every individual in that community. Thus, a juxtaposition of individual and common goods is unhelpful.
Properly speaking the more appropriate distinction is between private goods and common goods, that is, between 1) those goods which are owned by individuals and are diminished when benefitted from, and; 2) those goods which are wholly shared between each member of the community and remain undiminished when benefitted from. Crucially, the distinction lies in how they are shared; a private good might be shared aggregately, but a common good must be shared wholly and without any division. Common goods are indivisible and communicable to every member of the community. When I benefit from a common good, that common good should not be diminished in any way; if I did diminish it, the good is no longer truly common because I have privatised it in some way. For instance, peace is the most perfect temporal common good; when I benefit from the peace of a society, that peace does not diminish. I cannot keep it for myself; I do not detract from it by benefiting from it. Moreover, that peace is the same peace for you as it is for me; we both share in the same common peace.
On the other hand, whisky is good (in my patriotic opinion), and arguably it may be held in common. But the very moment that I benefit from whisky by drinking it, I diminish the supply; accordingly, it is not truly a common good, because it must be made private in order to be beneficial.[4] As such, goods which are not immediately enjoyed by the entire community when they are benefitted from must be private goods.
To consider some nuance, one might consider the example of health. As Marcus Berquist points out, although Health is a universal good, it is not a common good. Health is entirely personal. Although it is ordered to the common good and many benefit from it, my health is nevertheless still a good specific to me.
Accordingly, legal rights must be private goods. My right to freedom of expression is not your right to freedom of expression. It is not shared in common. Such a right may be a universal good, in the sense that we all possess that right to some extent, but how I benefit from it is still contextual, circumstantial and, crucially, not common.[5]
Berquist helpfully explains that, while the common good itself is universal by causation, private goods can still be universal by predication. Thus, while those rights which are universal (such as rights to life, liberty of person, education, marriage, and so forth) are understood to predicate the common good, they do not necessarily constitute or cause the common good. The common good, as the end, is what constitutes those private rights, and this makes the entire project teleological. Thus, while in some circumstances rights may assist in bringing about the common good, that does not make those rights common goods per se.
Indeed, it would be problematic if legal rights were confused with or took any substantive precedence over the common good. Perhaps one might consider a human right protected by the majority of Human Rights conventions: the right to life. If my society were to engage in a just war and, to preserve the common good of peace, I was required to fight, then I necessarily have to sacrifice that right to life for the sake of the whole, just as a good soldier “neglects even his proper safety in order to conserve the good of his head”.[6] In such a situation, it would be inimical to natural justice if my right to life—a private good—were to take precedence over the common good. That common good of peace is still my common good and, since the common good is my own good, in the purest sense I would be giving my [private] life for my own [common] good.
In keeping with this logic, it is a mistake to consider the rights question in terms of individual goods and common goods, for individuals still possess the common good as a bonum suum. Additionally, it is also a mistake to conflate the private good with the common good, or argue that they are the same thing. In the words of De Koninck, a society which “[identifies] common good with a private good, is not a society of free men, but of tyrants”. Any primacy of subjective right, however vague, steers us towards such tyranny.
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Consequently, it is one question to ask if courts should decide in favour of rights claims, where those claims are genuinely ordered to the common good; to that I answer in the affirmative. However, it is another question to consider whether those legal rights, as private goods particular to the litigant, should overturn a general norm.
The principle concern with judicial review is that, while the exercise of an individual right may be ordered to the common good in a litigant’s circumstances, that does not mean that such a right is ordered to the common good in every circumstance. Rights claims are not common claims, yet they often overturn general norms which otherwise might remain beneficial for the common good of all.
To resolve this conflict, in classical theory we encounter two solutions which might move us away from strong judicial review and further towards a Common Good Constitution:
- Judicial Dispensation: Rather than courts making decrees about the lawfulness or the constitutionality of laws or actions, courts can grant litigants a dispensation from their immediate legal obligations, in light of their subjective rights. This preserves the integrity of general norms while making exceptions for claims in subjective right.
- Judicial Deference: Adrian Vermeule has suggested that “the common good may itself suggest that judges should defer to other actors under various circumstances”. Where a case before a court suggests that a general norm is so inimical to the common good and justice, then courts can defer to the appropriate political institution for general determination, by either offering a clarification or making an amendment to that norm.
In different ways, both of these suggestions allow political institutions to maintain a certain integrity in their role of making determinations for the common good, while still allowing individuals to be granted exemptions where their personal circumstances, according to justice, should grant them some leave from the force of law. As Vermuele has argued, those public authorities which determine and enforce positive laws often make better determinations in favour of the common good than do courts. The better forum for the reform of general norms is very obviously therefore the place where the common good is most thoroughly and commonly deliberated: in political institutions.
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De Koninck cautioned against the errors of ‘quasi-individual’ notions of the common good, where ultimately the private good is preferred over the common good of the city. Strong models of rights-based judicial review veer us closely towards a tyranny of rights, where the common good is but a secondary consideration. And, on that front, perhaps we ought to leave the final word to De Koninck himself:
“[With] the common good, and not the person and liberty, being the very principle of all law, of all rights, of all justice and of all liberty, a speculative error concerning it leads fatally to the most execrable practical consequences.”
Jamie McGowan
- De bono, V, I, 2. ↑
- De bono, V, II, i. ↑
- That being said, if there was a way that I could enjoy whisky without it being divisible when I benefit from it, I would be greatly pleased. ↑
- This is crucial to remember in light of suggestions by New Natural Lawyers like Finnis who argue that the Common Good is simply a ‘set of conditions’ which facilitate certain basic goods—and that set of conditions is realised through positive Human Rights. This definition of the common good neither demonstrates something that is truly common nor manifests something which is honourably good. It is also further evidence that Finnis’ work is not really ‘Thomistic’ or ‘classical’ but a new systematic philosophy of law in its own right. ↑
- Q. D. de Carit., a. 4. ad 2. ↑