Imperare aude! Dare to command! (Part II)

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Ius & Iustitium is pleased to present this guest post by Ricardo Calleja, lecturer in ethics at the University of Navarre. This is the second and final part. The first part may be found here.

At the risk of repeating some ideas, let me clarify why a call to exercise authority, including forceful coercion, does not foster or endorse arbitrariness, authoritarianism, or decisionism.

Arbitrariness

Arbitrariness, in our modern language, is the condition of decisions based on “random choice or personal whim, rather than any reason or system,” and the characteristic of “power or a ruling body unrestrained and autocratic in the use of authority” (Oxford Dictionary).

Imperare aude, the call to command, is not a call to arbitrariness. For the act of the will to be rational, the acts of consilium and iuditium must precede that of imperium. These acts contain the informative and evaluative deliberations that seem to us more obviously to be acts of reason. However, as I have discussed in Part I, imperare is itself also an act of reason because reason commands the intention to certain goods as ends and the will to act accordingly. Hence, random choice or personal whim ought not be the grounds or motivations for any decision by an authority. An arbitrary decision is contrary to the proper exercise of imperium.

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Imperare aude! Dare to command! (Part I)

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Ius & Iustitium is pleased to present this guest post by Ricardo Calleja, lecturer in ethics at the University of Navarre. This is the first part in a series. The second part may be found here.

“Enlightenment is man’s emergence from his self-imposed nonage. Nonage is the inability to use one’s own understanding without another’s guidance. This nonage is self-imposed if its cause lies not in lack of understanding but in indecision and lack of courage to use one’s own mind without another’s guidance. Dare to know! Sapere aude! ‘Have the courage to use your own understanding,’ is therefore the motto of the enlightenment.” (Kant, What is Enlightenment?).

The project of the Enlightenment can be summed up as the rejection of authority. In particular, the mediating role of authorities in conveying truths, theoretical or practical, to adult individuals is discarded. Everyone must think for themselves — must dare do think for themselves. Sapere aude! Consequently, authority no longer finds its foundation in truth and reason but can only build on consent and will, and can only justify its choices in terms of instrumental reasons. As Pierre Manent has recently underlined in a masterful new book, the modern attempt to reduce authority to the role of merely protecting individual rights — conceived as the freedom to satisfy infinite desires — ultimately has led to a debasement of all social institutions: familial, academic, ecclesiastical, and civil. The upshot is that the philosophical principle of the Enlightenment deforms the character of rulers and ruled alike, making the former irresolute and the latter undisciplined.

The modern project might have helped to open spaces for individual freedom and participation in action for the common good by transforming those social structures of the pre-modern world that were not responsive to the demands of some of the core principles of the classical legal tradition. Instead, it has eroded the individual and social capacity to exercise practical reason — particularly when acting in common — by blocking our responses to the commands of natural law. We are left with instrumental reasons at the service of purely subjective preferences, making any practical pursuit of the common good not only impossible, but unthinkable. 

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Sir John Fortescue and the ius commune

Pat Smith

Sir John Fortescue (1394–1479), who has been called by Ernst Kantorowicz “England’s greatest jurist of the Lancastrian period,” called England a dominium politicum et regale. A kingdom ruled politically and regally. This definition became subsequently very influential, not least because it contains a limitation on both the monarch and Parliament. One cannot rule without the other. Fortescue purported to derive his analysis from St. Thomas Aquinas and Giles of Rome. This has been the subject of considerable controversy, not least because it has not been clear over the last five hundred years or so where in Aquinas Fortescue found the notion of the dominium politicum et regale. Nevertheless, it is important to observe that Fortescue took great pains to claim Aquinas as an antecedent. This is one more example of the classical legal tradition—the ius commune—finding its way into English legal theory.

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“The Union Existed Before the Constitution”

Adrian Vermeule

​The Supreme Court’s 1936 decision in United States v. Curtiss-Wright Export Corp. upheld the validity of a joint resolution (equivalent to a statute) authorizing the President, by proclamation, to make illegal the selling of arms to combatants in a conflict between Bolivia and Paraguay. Justice Sutherland’s opinion for the Court framed the issue by assuming, for the sake of argument, that the congressional delegation of authority would be invalid if it only involved internal affairs, and then asking whether the foreign relations context made a difference. His answer was that it made all the difference, for two main reasons. First, the context was one of concurrent presidential authority over external affairs, in which the President enjoys special powers to act as “sole organ of the federal government in foreign relations.” Second, the government as a whole possessed the relevant powers as inherent concomitants of external sovereignty. These points both implied that the standards of valid delegation were more capacious than in domestic affairs.

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Common-Good Constitutionalism and the “Ius Constitutionale Commune” in Latin America

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Ius & Iustitium is pleased to present this guest post by José Ignacio Hernández G. Professor Hernández is professor of administrative law at “Andrés Bello” Catholic University and Central University, Venezuela, invited professor at Castillo-La Mancha University, Spain, and a fellow of the Growth Lab at Harvard Kennedy School.

Originalism, the dominant mode of legal interpretation in American constitutional law, posits that the interpretation of the U.S. Constitution must be according to its “original” public meaning, that is, the meaning as it was in 1789. In an article published in The Atlantic earlier this year, Adrian Vermeule proposes a different methodology, based on the common good, which proposes that the Constitution be interpreted in accordance with the classical legal tradition, with the final goal of promoting common goods. In other words, instead of the text, the polestar of common-good constitutionalism is purposive ordering to certain social ends. According to Vermeule, common-good constitutionalism draws “upon an immemorial tradition that includes, in addition to positive law, sources such as the ius gentium—the law of nations or the “general law” common to all civilized legal systems—and principles of objective natural morality, including legal morality in the sense used by the American legal theorist Lon Fuller: the inner logic that the activity of law should follow in order to function well as law.” 

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The Unwritten Law and the Order of the State

Pat Smith

I have discussed elsewhere how St. Isidore of Seville’s Etymologies were hugely influential for later writers like Gratian and St. Thomas Aquinas. (The Etymologies were generally influential throughout the Middle Ages.) It is helpful, however, to see St. Isidore’s jurisprudence in action, especially when applied to a current problem. One of the preferred jurisprudential moves of liberalism is to reduce the order of the state to written law—written norms—and exclude from that order any unwritten law. St. Isidore (and, later, St. Thomas) demonstrate that such a move has no warrant in the classical legal tradition and, therefore, should be rejected outright. Indeed, the saints show clearly that the order of the state is far greater than whatever may be reduced to written law at any time.

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The Living Voice of the Law

Adrian Vermeule

In the very first book of the Digest of the Emperor Justinian, the great jurist Papinian lists the sources of the ius civile, the civil law of Rome, as “statutes, plebiscites, decrees of the Senate, imperial decrees, or authoritative juristic statements”—and then immediately adds that “praetorian law is that which the praetors have introduced in aid or supplementation or correction of the ius civile.” Just as the ius civile is, in part, a determination or specification within reasoned boundaries of the more general principles of the natural law, so too the edicts of the praetors—high magistrates of Rome, just beneath the consuls—added specification to or adjusted the contours of the ius civile as necessary. Even more detailed specification could be added through the application of the edict to facts in particular cases by the courts. Non curat minima praetor became the maxim; the praetor does not attend to small details. The function of the praetor was to determine important questions of policy within the bounds of the ius civile, adjusting it to lived realities and changing circumstances. Each praetor’s edict was in force only for the praetor’s own term, but each successive officeholder tended to adapt the edict of his predecessor as a baseline, making adjustments at the margin. The result was a system in which, as the jurist Marcian put it, the edicts of the praetors were “the living voice of the ius civile.” Continue reading “The Living Voice of the Law” →

The E.U.’s Class Action Directive: An Inspiration for Corporatist Class Action Reform?

Yves Casertano

The origins of the class action can be traced to the English chancery courts—perhaps even to King Edward II’s adjudication of a dispute concerning the rights of Channel Islanders in 1309. The class action as we know it today, however, emerged in the United States in the mid-20th century and has mutated far beyond anything that would have been recognizable to chancery courts of even a century ago. In recent decades, the U.S.-style class action has begun to spread not only to other common law jurisdictions but also to the civil law countries of Europe and elsewhere. Earlier this summer, the European Union published the text of a proposed directive on “representative actions for the protection of the collective interests of consumers” (the “Directive”). Consumer law is defined broadly to include  “data protection, financial services, travel and tourism, energy, telecommunications, environment and health, as well as air and train passenger rights, in addition to general consumer law.” While the class action procedure envisioned by the E.U. directive is more limited in scope than Federal Rule of Civil Procedure 23 and state law analogues, the Directive (once it is formally approved and implemented) is expected to significantly expand the availability of the class action mechanism in Europe, particularly in cross-border litigation.

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