Deference and Determination

Adrian Vermeule

In his remarkable and underappreciated book on Natural Law in Court, Dick Helmholz observes that when moderns turn to the subject of the relationship between natural law and positive law, they immediately focus on the question whether the former in some sense “trumps” the latter in cases of irreconcilable conflict. To the classical lawyer, however, that question was not central. To be sure, as early as the Institutes of Gaius it was said that “changes to civil law can take away rights belonging to civil law (jus civile), but not rights belonging to natural law (jus naturale)” (I.158). But natural law had many other roles detailed by Helmholz, roles much more central in actual practice, such as supplying interpretive principles and default rules for construing statutes, supplying principles of just procedure, and suggesting remedies.

More broadly, for the classical lawyer, the whole framework within which to discuss the relationship between natural and positive law was different, centering on their complementary roles rather than on potential conflict. The positive law, the ius civile, was understood as a set of rational ordinances promulgated by the public authority for the common good —that is, in order to give more specific content to the general principles of the natural law. In a famous passage, Aquinas distinguished two ways in which positive law might be derived from the natural law:

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Conflict of Laws and the Regulation of Public Health

Gladden Pappin

In recent months religious believers in parts of the United States as well as western Europe have come to sense that public health regulations are being uniquely turned against them. In a Thanksgiving gift to religious believers in New York, late Wednesday evening the Supreme Court granted the request of the Diocese of Brooklyn (alongside a group representing Haredi Orthodox Jews) for injunctive relief from an executive order restricting occupancy at religious services to ten persons in COVID-19 “red zones” and twenty-five persons in “orange zones.” Catholics in France have not been so lucky, and there a national restriction limits religious services to thirty persons, even in France’s greatest cathedral churches. In both cases, governments claim to be fully committed to upholding liberty of religion as well as public interest writ large yet reach divergent conclusions.

This divergence points to a difficulty in one of the key concepts underlying this year’s restrictions on public activities—namely that of public order, which this year has taken the form of regulations made in the name of public health. In normal times, public order is a background condition assumed for the sake of going about the rest of one’s business. When the local fire department inspects a church building and concludes that four hundred people can safely fit within it, no one, least of all church authorities, bats an eye. In the church–state boundary dispute currently before us, however, religious congregations have faced severe adverse restrictions on their activities. And while Americans may be grateful that religious liberty jurisprudence worked in our favor this time, the same considerations—balancing public health and the demands of religious liberty—led to an adverse outcome in France, and one against which there is no appeal.

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A new edition of Wulfstan’s legal writings

Pat Smith

Old English Legal Writings: Wulfstan
Edited and Translated by Andrew Rabin
Harvard University Press (Dumbarton Oaks Medieval Library 66)

Archbishop Wulfstan of York is not a household name, even, one imagines, among those with an interest in the Anglo-American legal tradition. However, he was, in the years shortly before the Norman Conquest, a hugely influential figure in England. An accomplished prose stylist, jurist, and preacher, Wulfstan’s influence spanned the reigns of Æthelred the Unready and Cnut. He wrote a number of law codes for both kings—along with political tracts and extensive ecclesiastical legislation. A new edition, edited and translated by University of Louisville professor Andrew Rabin, collects these law codes, political tracts, and ecclesiastical laws. Taking the work as a whole, one finds in Wulfstan a remarkably well developed concept of the commonwealth, sustained by order and justice, animated by Christianity, implemented through his civil and ecclesiastical laws. 

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A Euclid for Civil Liberties

Adrian Vermeule

In 1926, in a case called Village of Euclid v. Ambler Realty Co. that is well-known to approximately all American law students, Justice Sutherland wrote for the Court to uphold a zoning scheme in Ohio. Drawing upon the deferential version of the police-power framework that, I have argued, embodies common-good constitutionalism within American law, Sutherland announced that “if the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.” Implicitly drawing upon the classical idea of determination, under which the public authority gives reasonable specifications to general legal principles, and also anticipating the famous “margin of appreciation” of human rights law, Sutherland added

it may thereby happen that not only offensive or dangerous industries will be excluded, but those which are neither offensive nor dangerous will share the same fate. But this is no more than happens in respect of many practice-forbidding laws which this Court has upheld, although drawn in general terms so as to include individual cases that may turn out to be innocuous in themselves…. The inclusion of a reasonable margin to insure effective enforcement will not put upon a law, otherwise valid, the stamp of invalidity…. In the light of these considerations, we are not prepared to say that the end in view was not sufficient to justify the general rule of the ordinance, although some industries of an innocent character might fall within the proscribed class. It cannot be said that the ordinance in this respect passes the bounds of reason and assumes the character of a merely arbitrary fiat.

Euclid thus illustrates the classical framework of deferential judicial review. Continue reading “A Euclid for Civil Liberties” →

Antitrust and the Common Good

Maria Messina

Last week, the U.S. Department of Justice, accompanied by 11 state attorneys general, sued Google under Section 2 of the Sherman Act, 15 U.S.C. § 2.  The action seeks to “restrain [Google] from unlawfully maintaining monopolies in the markets for general search services, search advertising, and general search text advertising in the United States through anticompetitive and exclusionary practices, and to remedy the effects of this conduct.”  While widely lauded as decisive action against the power of “Big Tech”, this complaint will usher in years of mind-numbingly expensive litigation led by the top law firms in the country, the success or failure of which will hinge on a battle of economists seeking to prove or disprove the complaint’s carefully chosen markets.  Daubert motions will be as dispositive as any motion to dismiss or summary judgment.  The court will come to its conclusion based on hundred-page economist expert reports, and after analyzing a dizzying array of graphs and regressions.

Many antitrust scholars decry the chokehold of the economists on contemporary antitrust jurisprudence, mostly blaming Chicago School economics and Robert Bork’s seminal 1978 book, The Antitrust Paradox.  See e.g., Barak Orbach, How Antitrust Lost Its Goal, 81 Fordham L. Rev. 2253 (2013).  These scholars see a break between prior antitrust enforcement focused on “trust busting,” and the subsequent adoption of a “consumer welfare test,” to be proven by economic analysis, as the center of U.S. antitrust law.  Far from being a complete departure, however, this development was the natural result of liberalism’s unraveling of business regulation from the common good. 

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Feast of Saint John of Capistrano, Patron of Jurists

Yves Casertano

The 23rd of October is the feast of Saint John of Capistrano. He is perhaps best known as a Franciscan preacher and miracle worker, the “soldier saint” who defended Hungary against the Turks, and the namesake of a city in California. It is less well known that St. John of Capistrano is a patron saint of jurists (along with the more familiar patrons: St. Thomas More, St. Raymond of Penyafort, and St. Yves of Kermartin).

St. John was born in the Abruzzi in 1385, the son of a noble family from France that had settled in the Kingdom of Naples under the Angevin dynasty. As a young man, he studied law at Perugia and was noted for his brilliance. He was appointed governor of Perugia at the age of 27. However, while imprisoned during a regional conflict, John had a conversion experience and entered the Franciscans at the age of 31. Continue reading “Feast of Saint John of Capistrano, Patron of Jurists” →

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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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” →