A Crucial Experiment

Adrian Vermeule

Life and law being messy, there is rarely a crucial experiment available to test competing views. But in the recent controversy over the conservative legal movement’s strategy with respect to abortion, we have a test that is as good as we are likely to get: the pending certiorari petition in Dobbs v. Jackson Women’s Health Organization, in which the lower courts struck down Mississippi’s ban on abortions after 15 weeks (with various exceptions). The cert petition squarely asks, in its first question presented, “[w]hether all pre-viability prohibitions on elective abortions are unconstitutional.” It is a head-on challenge to the Roe v. Wade framework.

A voice of the originalist establishment has said that “it is unlikely that there will ever be a more opportune vehicle” to reconsider Roe, and this is exactly right; Dobbs presents a choice opportunity. Four votes are needed to grant cert. There are now six GOP-appointed Justices on the Court, including three Trump appointees (Justices Gorsuch, Kavanaugh and Barrett, in order of appointment) who were openly screened by the Federalist Society. If four votes cannot be found among these six even to consider a square challenge to Roe, it seems well past time to take stock of the conservative legal movement’s approach to abortion, and well past time for some accountability — ideally self-imposed accountability — on the part of the movement’s leaders. Of course, even a grant, although welcome, will hardly guarantee success on the merits. But if a supermajority of GOP-appointed Justices are unwilling even to consider the issue, something has gone very wrong.

The Rule That Brought Us To This Place

JAF

John Finnis’s recent piece in First Things, “Abortion is Unconstitutional,” has sparked a great deal of controversy in conservative legal circles in the short time since it was published. In his piece, Finnis argues on originalist grounds that the Fourteenth Amendment prohibits abortion, and that the Supreme Court should therefore reverse Roe v. Wade and declare abortion unconstitutional. (This argument is similar to one given earlier by Josh Craddock.) Finnis argues that abortion is precluded by the original public meaning of “person” as used in the Fourteenth Amendment’s Equal Protection Clause or its Due Process Clause. One might be forgiven for thinking that such an argument, from such a man, in such a publication would be entirely uncontroversial in pro-life circles.

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“What is the Common Good?”

Adrian Vermeule

Here’s my talk on “What is the Common Good?” for the new Oxford Law/Blackfriars project on Law and the Common Good. It’s not a talk on political theory or theology, but on constitutional and administrative law. Both Anglo-American and European law, past and present, are full of provisions referring to the “common good,” “general welfare,” “public interest,” “public order,” and so forth; these have to be construed some way or other. Thanks to my interlocutors, Profs. Ryan Meade and Chris Conway.

Notes on the Ius Commune – Part I: The Hydra of Legal Positivism

Rafael de Arízaga

Marx and Engels famously wrote in The German Ideology that «hundreds of earlier writers» (earlier, that is, than Max Stirner) agreed that «right originated from force» — i.e., from violence.

Anyone surveying the last 350 years of the history of jurisprudence may be excused for agreeing with them. It has been a history of monstrous heavings and shakings, where the law has been taken up and wielded as a tool for all kinds of delirious and utopian schemes. The common thread has been the demolition of the political-juridical principles of the prior order, which have been torn down, gutted, and redefined one by one. The justification for this razing of our juridical bastions has generally been connected to a claim that those old structures were offensive to the «rights of man». A claim about rights — a claim of justice — is thus at the heart of Modernity. But it is a claim of a perverted, defaced justice. «If the essence of “modern” culture is voluntarism (which is the intimate secret of rationalism)», wrote Cornelio Fabro, «one should not be astonished if the truth is then identified with action and right with force … The crisis of the world is a crisis of rights, in that it is first and foremost a crisis of their foundation, that is, of principles».1

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Would Cicero Recognize America as a Commonwealth?

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Ius et Iustitium is happy to present this guest post by Brian McCall. Mr. McCall holds the Orpha and Maurice Merrill Chair in Law at the University of Oklahoma.

It seems as if the only thing about which most Americans can agree is that America has become more deeply divided than any time since the mid-nineteenth century. The people of America are so divided that it raises the question, Is the Republic still a commonwealth? Cicero, in his great work of political and legal philosophy, De Republica, defined a commonwealth as: “an assemblage of some size associated with one another through agreement on law (ius) and community of interest.”[1] This definition contains three elements: (1) a group of people that is of a certain minimum size, (2) a common interest, and (3) an agreement on the nature of law and justice. The Latin word used for this final element is ius. This word possesses a rich penumbra of meanings beyond that of the simple English word “law.”[2] The range of meanings of ius includes “law, justice, right, rights, procedures of justice, just behavior, court, regulations, power, authority.”[3] The term also has the “connotation of ‘justice’—that is, the broader principles of equity or morality which a legal system is supposed to embody.”[4] This rich word is distinguished from the Latin word lex, also rendered in English as “law,” which has a more specific meaning than ius. It refers merely to written rules adopted by a constitutionally approved legislative authority. Thus, when Cicero requires a consensus on ius (consensus iuris) before discussing the best form of civil laws, he is referring to a much deeper consensus than a mere agreement on the specific laws of a polity. He insists upon a consensus about the very nature of law and justice. In De Legibus, his discourse on the best form of laws for a commonwealth, the reader must wait until Book II before Cicero begins listing these laws. Cicero requires from his philosophically pluralist discussion partners[5] at least a tentative agreement on fundamental philosophical principles that underlie law, before describing specific civil laws.[6]

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The Moral Rule Against Retroactivity

Pat Smith

Retroactive laws present vexing problems for lawyers. On one hand, they are awfully convenient, especially when a problem with the law is discovered. On the other hand, they are a favorite tool of tyrannies like Nazi Germany. They are especially disfavored in the penal context, especially in the Anglo-American tradition of the seventeenth and eighteenth centuries. However, the problem remains present in the jurisprudence of the twentieth century, notably in the work of Lon Fuller. Yet the condemnation of retroactive laws has deep roots in the classical legal tradition, going back to Justinian and Gregory IX’s Liber Extra. Indeed, one can find condemnations of the concept all the way back to Ancient Rome. Given that retroactive laws—and putatively retroactive administrative regulations—remain troublesome for lawyers and judges, the tradition provides an under-utilized source for considering the problem.

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Reviving the Classical Legal Tradition in an Age of Legal Barbarism

Yves Casertano

Historians debate whether and how much the barbarian invasions of the fifth century marked a rupture with the Roman past in the former territories of the Western Roman Empire in Europe. Given the endurance of the Catholic religion and the Latin language (at least outside of Britannia and Germania), a strong argument can be made for continuity. Perhaps the clearest sign of rupture, however, was the eclipse of Roman law.

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Monstrous Government

Adrian Vermeule

In his mini-treatise On the Government of a City, the great Italian lawyer-commentator Bartolus (Bartolo de Sasseferrato) begins with a fairly conventional typology of the six regime-types of classical constitutional theory. The city may be ruled by the many, the people; by the few, the optimates; or by one man. Any of these forms of rule may or may not be tyrannical. We thus have six categories, named respectively polity or regimen ad populum (good rule by the many) and democracy (bad or, in Bartolus’ preferred term, “perverse” rule by the many); aristocracy (good rule by the few) and oligarchy (bad); kingship (good rule by one) and tyranny (bad).

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Joe Biden’s Orders and the Common Good

Pat Smith

In his first few days in office, President Joseph R. Biden, Jr. has issued thirty executive orders and other actions. This number, without context, is hard to interpret. However, Biden’s willingness to use executive orders at the very beginning of his administration is unparalleled in recent history. In Donald Trump’s first month in office, he issued four. In Barack Obama’s first month, he issued eight. George W. Bush and Bill Clinton each issued two. George H.W. Bush and Ronald Reagan each issued one. While conservatives—especially common-good conservatives—will object to the substantive content of many of Biden’s orders, they ought to take Biden’s first few days in office as a model for future administrations. 

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Magín Ferrer and the Fundamental Law of the Spanish Monarchy

Rafael de Arízaga

Ernest Renan (author of a blasphemous Life of Jesus) once quipped that “hereditary monarchy is a political conception so profound that it is not within the reach of every intelligence to comprehend it.” Indeed, the doctrine of Christian monarchy was the crown jewel of classical public law. In order to introduce our readers to it, Ius & Iustitium presents here a translation of an excerpt from Fr. Magín Ferrer, O. de M.’s Fundamental Laws of the Spanish Monarchy (1843). It is a lucid and brief exposition of this theory from the pen of one of its great exponents.

Introduction

Magín Ferrer (1792-1853), a friar of the Royal and Military Order of Our Lady of Mercy, was one of the early writers—both doctor and pamphleteer—of the Carlist cause, the longest-living Catholic counter-revolutionary and integralist movement of the past two centuries.2 Carlism traces its origins to the break in 1833 of the Spanish royal house, when the death of Ferdinand VII pitted two lines, the agnate and the feminine, against each other.  The former was centered on the late King’s brother, the infante Don Carlos María Isidro (King Charles V), whose rights were founded on the old laws of the realm, and the latter on the infanta Isabel (called Isabel II), the King’s daughter, and on her mother, María Cristina of the Two Sicilies.  The followers of Don Carlos, Carlists, were the collection of anti-liberal, traditional forces of Spain, enemies of both the liberalism of the Cortes of Cádiz of 1812 and of the French-style absolutism of some reactionaries.  They traced their intellectual and moral roots back to the principles of the ancient Catholic Monarchy.  The followers of Isabel, the Isabelinos (or Cristinos, for her cunning mother), were their opponents: the forces of Spanish liberalism and their “conservative” enablers.

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