Gnostic Constitutional Theory

Adrian Vermeule

A few brief thoughts in response to this interesting post on the Dobbs case by my esteemed colleague Steve Sachs. (I say nothing about Steve’s broader body of work, apart from the post). Steve writes that a failure to overturn Roe v. Wade would be an “extraordinary black mark for the conservative legal movement,” but would in no way damage originalism as such. After all, “[p]eople can call themselves ‘originalists’ and still be wrong about the original Constitution, just as they can call themselves ‘historians’ and still be wrong about history.” On Steve’s view, cited in the post, originalism is a standard that defines the rightness of right answers, not a decision procedure, let alone a foolproof decision procedure, for identifying those answers. It follows that originalism is untouched by any given misapplication of the standard, or even a long series of misapplications. “What kind of views of the Constitution do you hold, if you’d go look for new ones based on what some robe-wearing politician-approved bureaucrats say?… If you think originalism requires overturning Roe, and if it turns out that the Court’s self-described originalists still won’t do it, why conclude that originalism is lousy, and not that the Justices you’re mad at are lousy originalists?”

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MacIntyre with the Jurists

Rafael de Arízaga

Friday, November 12 was the second day of the annual fall conference of the Center for Ethics and Culture at the University of Notre Dame, dedicated this year to the topic of “Human Dignity in a Secular World.” As is customary, Alasdair MacIntyre, one of the most remarkable living philosophers, graced the event with what in European universities was traditionally called a lección magistral, a magisterial—that is, a Master’s—lecture. MacIntyre’s truly excellent lecture is available online, and highly recommended.

Over at The Postliberal Order, Patrick Deneen offers a crisp, suggestive summary of this “bombshell” lecture, in which MacIntyre, with delicious elegance and learned restraint, appeared to undermine the premise of the conference almost entirely. As Deneen recounts, MacIntyre began by reminding his audience that the modern concept of dignity was purposely developed in the wake of the Second World War as a kind of placeholder-notion, vacuous by design, “that people of various faiths, secularists, different traditions, and varying nationalities could agree upon as a basis for a decent political and social order.” One is reminded of Jacques Maritain shamelessly pointing out in 1947, regarding the Universal Declaration of Human Rights, that given the disagreement among the drafters and proponents of the declaration on the source of the rights, it was enough merely to enumerate them without committing to any view about what made them intelligible. Hence, dignity talk. It served as a stand-in for a minimum standard of treatment of persons, but without contributing very much to an understanding of what that minimum standard actually requires in practice. The only claim is that whatever it is, dignity is “inherent” to the human person as such.

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Catholic Constitutionalism: A Primer

Adrian Vermeule

What follows is a short talk I gave to students and young professionals from the Harvard-area community on the subject of “Catholic Constitutionalism.” It is intended merely a a brief primer and introduction to the issues, not as a comprehensive or theoretically sophisticated treatment. I nonetheless hope it is useful within its limits.

My talk today will be on Catholic Constitutionalism. (At a certain point, I will deliberately begin referring to this as “Catholic constitutionalism” with a small “c,” for reasons I will explain). One of my central questions will be whether there even is such a thing as Catholic Constitutionalism, to which I will answer: both no and yes. There is a sense in which there isn’t any such thing, and a sense in which there definitely is.


It won’t be a long talk, but it will have several different branches, so let me begin with a brief overview.
First I will say a bit about the Catholic doctrine as to the constitution of the temporal power. By constitution, I will always mean a small-c constitution in the classical sense, that is the total set of fundamental institutional and customary arrangements that structure public authority in a society. These may or may not be embodied in a large-C  “Constitution” in the modern sense, which is a single unitary written document that purports to lay forth the fundamental institutions in a text. In the classical sense, there is very much such a thing as the British constitution, although there is no single British Constitution in the modern sense. That is, the British constitution is often called an unwritten constitution, although a more accurate description is that it is an uncodified constitution. It is composed of a number of fundamental statutes that have constitutional force, like the Act of Union 1707, of foundational constitutional principles (“What the Queen in Parliament enacts is law”), and also of fundamental unwritten normative customs or as the British call them “conventions.” All this was true of the Roman constitution as well.


The Savoyard constitutional theorist Joseph De Maistre went further, in his Essay on the Generative Principle of Constitutions, and argued that there is in a sense no such thing as a written constitution. Constitutions are begotten, not made; grown, not engineered. On this view, although of course there are written things that purport to be constitutions, they at most restate antecedent unwritten law, and are not causally efficacious in structuring the small-c constitution — the actual operating rules and norms of a political order. We need not accept or reject De Maistre‘s argument for present purposes, however.


Secondly, I will turn to the constitution of the Church founded by Our Lord, known in one of its major branches as the Roman Catholic Church. Here I will not speak to the department of theology known as ecclesiology, according to which the Church is the mystical body of Christ. I’ll leave that to others who know far more theology than I do. I will simply offer a few remarks about the Church’s outward-facing fundamental institutional arrangements.


I should clarify another term here. When I refer to “the Church’s institutional arrangements,” I mean the institutional setup of the spiritual power. Properly speaking and more accurately, however, “the Church” encompasses both clergy and laity, both the spiritual and the temporal power. Indeed Catholic theology has always recognized a sphere within which the temporal power has legitimate autonomy to govern according to the virtue of prudence, directed to proper ends. One must not confuse or conflate (although many do) Catholic doctrine with Caesaro-Papism or heirocratic rule, both of which fuse the spiritual and temporal powers in different ways, either fully subjecting the spiritual to the temporal, or the temporal to the spiritual. That is not the Catholic view. The Catholic view is “Duo Sunt,” in the famous words of Pope St. Gelasius—there are two powers that rule, the spiritual and the temporal power, and one of the major issues of political theology is to get them into the right relationship. Here we have the issue of so-called integralism, better known as political Catholicism or simply, as Dignitatis Humanae described it, “the traditional Catholic doctrine on the moral duty of men and societies toward the true religion and toward the one Church of Christ.” I mention this just for purposes of mapping the intellectual landscape, but integralism is not my subject today.


Third and finally, I’ll very briefly address the much-discussed question whether Catholic constitutionalism is compatible with liberalism, appropriately defined.

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St. Thomas More and the Summons Ex Officio

Pat Smith

Robert Bolt’s screenplays for Lawrence of Arabia, Doctor Zhivago, and A Man for All Seasons are classics of the genre, no doubt aided by David Lean’s brilliant adaptations of Lawrence and Zhivago. One might go so far as to say that the three make up a trilogy: each focuses on a man, more or less extraordinary, not least for his commitment to himself, swimming against the tide of events. One might say that Bolt focuses intensely on the individual who is true to himself at all costs. Of course, the emphasis must be on “at all costs,” since T.E. Lawrence, Yuri Zhivago, and Sir Thomas More all pay a high price for their integrity. The tide of events is, it turns out, much harder to resist than one might first imagine.

Bolt’s portrayals have been hugely successful. I dare say that far more people have seen Lawrence of Arabia than have ever read Seven Pillars of Wisdom, Lawrence’s account of the events depicted. This is, of course, too bad, since Seven Pillars of Wisdom, especially in the original, so-called Oxford Edition, is a wonderful book. But it is Bolt’s Sir Thomas More that has completely eclipsed the historical St. Thomas More, especially in Catholic legal circles. One, not quite random, example will suffice. Judge William Pryor, a perennial shortlist candidate for a Supreme Court seat under Republican administrations, lately a vocal opponent of what he calls (attempting to imitate the late Antonin Scalia’s wit and his positivism, though how successfully is an open question) “Living Common Goodism,” has said that he is inspired by the example of St. Thomas More.

He is far from alone. One hears Bolt’s speech about giving the devil the benefit of law quoted all the time, for example. It is taken, usually, as some devastating objection to governing with an end in mind. Every agent acts for an end, cf. III Cont. gent. c.2, but not the civil authorities. Of course, More never said it. Bolt bowdlerized a quip quoted by William Roper, More’s son-in-law. One of More’s sons-in-law was complaining that Cardinal Wolsey’s doorkeepers made a nice living for themselves ushering petitioners into the prelate’s presence when he was chancellor of England. A claimant needed some help getting justice from Wolsey, and Wolsey’s household was more than willing to oblige—for a price. More, on the other hand, was so scrupulously just that a petitioner could get access to him and plead his case just as easily for himself. More responded that he would do justice between his father and the devil. Not quite the passionate defense of the “rule of law” one sees in the movie.

One can play this game all day. The fact of the matter is that the reputation of St. Thomas More as a good liberal rests on a profound ignorance of More’s writings and a fondness for Robert Bolt’s depiction. More was an enthusiastic Counter-Reformation polemicist, who defended not only the theology of the Church but also her legal system. One example stands out. Late in his life—in fact, shortly before his final, fatal confrontation with Henry VIII—More engaged in an exchange of pamphlets with the protestant lawyer Christopher St. Germain, which touched in large part on the inquisitorial procedure of the Roman Church as it existed under the decretals. This exchange sheds light on Thomas More as a Catholic and a lawyer—but not, notably, a liberal. 

* * *

More’s last years have to be understood not only in the context of Henry VIII’s adultery but also in the context of More’s work as a Counter-Reformation polemicist. For the latter, More had official standing. On March 7, 1528 (N.S.), Bishop Cuthbert Tunstall of London commissioned More to write books in English in defense of the Catholic faith against protestant books, especially books by Martin Luther, which had been appearing in English. From the language of the commission, it is apparent that Tunstall was concerned that the English translations of Luther’s books required English answers specifically. Tunstall urged More to bring to bear the full range of his eloquence and wit in defense of the Catholic faith against the protestants and conceded to More the license to keep and read the protestant tracts that would otherwise be forbidden. 

More had already written a significant Counter-Reformation polemic when Tunstall commissioned him to take up the fight in English. In 1521, Henry VIII wrote a Defense of the Seven Sacraments against Luther’s Babylonian Captivity. Late in 1522, Luther, with his accustomed deference and tact, published an appalling Contra Henricum Regem Angliae. Henry asked More and Bishop John Fisher to respond. More responded to Luther quickly, though for unknown reasons the publication was delayed.

After receiving Tunstall’s commission, More wrote his Dialogue of Sir Thomas More, Knight, better known perhaps as the Dialogue Concerning Heresies, a title introduced in a subsequent edition. More lived up to Tunstall’s call to be a sort of English Demosthenes against the heretics: the Dialogue has been praised for its literary qualities no less than for its polemical value. Then, More published The Supplication of Souls in the fall of 1529, responding to a sixteen-page pamphlet that is remembered primarily because Thomas More responded to it. In the spring of 1532, More began his engagement with William Tyndale, who had responded to his Dialogue in 1531. The Confutation of Tyndale’s Answer would sprawl into eight books, published in 1532 and 1533, and is More’s longest work.

If few have read T.E. Lawrence’s Seven Pillars of Wisdom, I am confident that no one has read any of these works, least of all the Catholic lawyers who invoke St. Thomas More in defense of liberalism. One gets (from them) a vision of More as a lawyer and politician who, as Robert Bolt would have it, defends the rights of conscience against the incursions of tyrannous power. One does not see, or at least I do not remember seeing, much recognition that More was an enthusiastic participant in Counter-Reformation polemics and a defender of the Church’s law as it existed. It is, of course, easier than ever to read More. Yale University Press has recently brought out the very fine Essential Works of Thomas More, edited by Gerard Wegemer and Stephen Smith, collecting many of his Counter-Reformation tracts, letters, and other writings in a handsome volume. 

* * *

As I said, one of More’s final public battles—that is, before his very public battle with Henry VIII, which concluded with More’s glorious martyrdom—was with the lawyer Christopher St. Germain. St. Germain had, during the 1520s, written a couple of dialogues concerning the English common law and ecclesiastical law. Eventually these dialogues were published in English as Doctor and Student. St. Germain’s treatise was one of the important introductory texts in the common law until Blackstone’s Commentaries were published a couple of hundred years later. 

In December 1532, St. Germain published (anonymously) the Treatise Concerning the Division Between the Spiritualty and the Temporalty, allegedly in response to the increasing tensions between the laity and clergy in England. More, invoking Bishop Tunstall’s commission, published the Apology of Sir Thomas More, Knight, which was a lengthy response (via a digression) to St. Germain, in April 1533. In September, St. Germain responded to More’s apology with his dialogue, Salem and Bizance. More answered St. Germain again in November with his Debellation of Salem and Bizance, written in “few days.” Within a few months of November 1533, in the spring of 1534, More’s conflict with Henry VIII over the marriage to Anne Boleyn came to a head.

One ought to acknowledge, however, that More’s engagement with St. Germain was scarcely less dangerous than his refusal to acknowledge Henry’s marriage to Anne Boleyn or Henry’s pretended ecclesiastical supremacy. St. Germain was a protestant and was plainly part of Henry’s propaganda operation. Several editions of the Treatise Concerning the Division were published by the King’s printer. More’s sarcastic, penetrating critique could not help but attract unwelcome attention. Indeed, every indication is that it did. More, in his preface to the Debellation of Salem and Bizance, writing of the Apology, acknowledges that “some were very wroth therewith” and “diverse very great cunning men” were preparing answers to it. More no doubt understood that there were risks associated with pressing the point with the Debellation.

Among his many complaints, St. Germain criticized the practice (insofar as he understood it) of ecclesiastical courts summoning persons ex officio for examination for heresy without disclosing the identity of their accusers. According to St. Germain, this practice was authorized under Lucius III’s decretal Ab abolendam (c.9, X, de haereticis, V,7). St. Germain was, as Henry Ansgar Kelly has noted, simply expanding upon the House of Commons’ Supplication Against the Ordinaries of March 18, 1532. The Commons’ Supplication contained nine charges against the prelates of England, including a complaint about the practice of laity being summoned before their ordinaries and examined on charges of heresy without knowing who their accusers were. The Supplication may well have come out of Henry’s circle, so it is natural that St. Germain would keep up the propaganda support for a priority of the regime.

It is certainly true that Ab abolendam sets forth in very general terms a procedure by which laity could be summoned before their ordinaries for examination. The decretal speaks of those “qui vero inventi fuerint sola ecclesiae suspicione notabiles” (c.9, X, de haereticis, V,7 § Qui vero). And, unless they demonstrate their innocence to the bishop’s satisfaction, they are subject to the same penalties for heresy that are imposed upon heretical clergy and laity that have been found guilty. And it is certainly true that Boniface VIII’s decretal, Statuta quaedam (c.20, In VIto, de schismaticis, V,2), authorized withholding the identity of the accusers from the alleged heretic in cases of grave danger.

Richard Helmholz and Ansgar Kelly have both written on Thomas More’s specific knowledge of the canon law. Both take the position that More was not an expert in the decretals governing practice and procedure in the ecclesiastical courts, though More certainly defended the Church’s law. Ansgar Kelly takes the view that More, when push came to shove, knew enough about canon law, even if he was not an expert. And More was certainly familiar with some canonical texts. For example, Ansgar Kelly shows that More knew Lyndwood’s Provinciale, citing it in the fourteenth chapter of the third book of the Dialogue. Lyndwood’s commentary in the Provinciale was often of a technical, canonical nature.

It is likewise unclear how much canon law St. Germain really knew, except through the mediation of a couple of obscure manuals for confessors as opposed to the decretals or the standard commentaries on the decretals. For example, he holds out Ab abolendam as a one-off excess of Pope Lucius III. Ansgar Kelly observes that More knew that Ab abolendam had been confirmed for the most part by the Fourth Lateran Council in its decree Excommunicamus (c.13, X, de haereticis, V,7). Here one can go into the weeds very quickly. We can omit that for now. But, well founded or not, More’s response to St. Germain’s complaint is worth considering for a moment.

In the Apology, More accepts, at least arguendo, St. Germain’s charge that the prelates of England summon those suspected of heresy ex officio for examination. First, he says that the streets would swarm with heretics if no one could be examined for heresy without being confronted with a complaining witness. More claims that in many instances people will give a judge information secretly that they will not give openly. He also notes that in many cases, people, called to public examination, will perjure themselves before they give open testimony on a matter that has been proved with other evidence. 

Second, More argues that, even if someone summoned to give account before his ordinary for heresy cannot be proved guilty of heresy, he should still be given a penance for behaving in such a manner that his neighbors took him for a heretic. This is an astonishing argument, especially in the context of More’s argument to this point. St. Germain complained of ordinaries summoning laity ex officio for examination for heresy based upon “secret” evidence. More’s response first was that the secrecy was necessary to encourage accusation. Next, in response to St. Germain’s claim that people may be compelled to do penance without proof, More says that if they lived in such a manner as to give rise to accusations of heresy, they ought to do penance notwithstanding whether or not heresy could be proved. 

Finally, More analogizes to similar procedures in the common-law courts of England. He describes both bail procedure and grand jury procedure as analogies for the practice of being summoned ex officio and being put to penance. In both cases, the common-law courts might impose very stern punishments without the accused having a clear idea who had given evidence against him. Beyond this, More describes taking action as chancellor against public officials based upon secret evidence. This is, of course, scarcely less extraordinary than More’s previous argument. More’s defense of the canonical, inquisitorial procedure standing by itself is a challenge to the vision of More as a proto-liberal martyr of conscience. However, the fact that he saw the same procedures available in the English common law presents a much more serious challenge. None of the justifications More offers are notably liberal and none support the proposition that the English common law is a law of liberty, opposed to the Roman, continental tyranny of the civil law and the canon law.

* * *

Robert Bolt’s Thomas More is a compelling character, to be sure. However, it is simply incorrect to take More as a proto-liberal martyr of conscience. More was an enthusiastic participant in Counter-Reformation discourse and a vigorous defender of the laws and procedures of the Roman Church. In his exchange with St. Germain, More defended in sweeping terms the authority of ordinaries to summon laity before their courts and examine them for heresy without disclosing the evidence against them. He defended, over the course of his exchange with St. Germain and in his other polemical writings, other practices which we can leave to one side for now.

More saw no conflict between a summons ex officio for examination for heresy and certain common-law procedures. This ought to give the liberals who claim More’s patronage pause, too. One of the essential arguments against the classical legal tradition (or the common good) is that the Anglo-American common law tradition is somehow opposed to the continental, canonical ius commune. This is false and demonstrably so. However, the example of St. Thomas More’s defense of summons ex officio shows just how false it is.

Pat Smith

The Private Right of Action

Pat Smith

Recently Texas enacted the Heartbeat Bill, which contains a twist on the standard heartbeat law, which many states have adopted in recent years. It allows individuals to sue abortion providers who violate the law, entitling them to collect at least $10,000. (It does not allow individuals to sue women who obtain abortions, however.) The United States Supreme Court declined to enjoin the enforcement of the law on a complicated procedural basis, but it is certain that there will be more litigation over the Heartbeat Bill. In fact, President Joseph Biden and Attorney General Merrick Garland have, citing the sanctity of the 1973 United States Supreme Court decision Roe v. Wade, vowed to prevent Texas from enforcing the law. President Biden has even considered taking other, more direct action to circumvent the law.

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On the Tyranny of Rights

Jamie McGowan

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.

  1. 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;
  2. 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.
  3. 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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Rights and the Common Good

admin

This is the penultimate piece of the symposium Ius & Iustitium is presenting on the classical legal tradition and the common good. Jamie McGowan’s reply to this piece, the final installment in our symposium, is “On the Tyranny of Rights.” A general introduction to the symposium can be found here. Michael Foran is a Lecturer in Public Law at the University of Strathclyde.

Questions relating to constitutional structure, institutional design, legal interpretation and so on are essential to distinguish a constitutional from a political project. Without a theory of institutional design, common good constitutionalism collapses into a collection of political ends, to compete with other political ends in the constitutional arena of the day. Certain constitutional structures or designs are more conducive to the common good than others. Put another way, the common good is not neutral with regards to how public power is constituted, exercised, or controlled.

The Right and The Good

Properly understood, the common good is the good of each member of a community and so cannot be equated with an aggregative or majoritarian conception of the public interest which sees the primary role of politics as finding the most acceptable compromise between competing interests. The private good of an individual cannot be neatly separated from the common good of the community: my life is better when my friends’ lives are better. My membership within a political community grounds the bonds of a civic friendship that connects all members of a polity. It is in our shared common interest that all members of our community be capable of leading flourishing lives and that they be treated with dignity and respect. To diminish the flourishing of others, to disrespect their dignity, in the name of the common good is to fundamentally misunderstand what makes the common good common. It also fundamentally misunderstands what it means to pursue a good life.

This alone has implications for the kinds of principles that can properly be associated with a constitutionalism committed to the common good. The common good is achieved through adherence to a body of principles which demand the pursuit of human flourishing through proper action. Right action thus contributes to the common good both in how it helps achieve human flourishing and in how it constitutes human flourishing through the expression and fostering of virtue. At the level of political and constitutional morality, it is therefore important to distinguish between two different kinds of principles, or perhaps what we might describe as two different ways that we might operationalise a normative commitment derived from a conception of the common good.

Consider the following example. Given space constraints and the clear moral truth of the proposition, let’s stipulate that rape is bad and that a political system oriented towards the good would adopt a commitment against rape. There are (at least) two ways that a legal system might operationalise a commitment to anti-rape. The first would be to attempt to reduce the amount of rape within the community. The methodology here is to identify an end that ought to be pursued, in this case the reduction in the amount of rape, and to pursue it through actions that best achieve it. If this were the only guide to right action, we could assess the morality of acts by reference to how they contribute to the achievement or frustration of that end. (Aquinas, ST, I-II, q. 18, art. 4). Of course, this is not the only guide to moral action, so this commitment needs to be balanced against other moral ends. While banning all recreational activity or requiring women to be chaperoned by a family member at all times might contribute to a reduction in rape, this would not mean that the policy is conducive to the common good, given the effect this would have on the capacity of members of our community to lead flourishing lives.

This commitment to reducing rape may also be constrained by reference not to the pursuit of other legitimate ends but to another kind of anti-rape principle. The above principle promotes anti-rape. This other principle respects anti-rape. It is what we might call a deontic commitment that instantiates a prohibition on the act of rape, regardless of its consequence. This principle will set limits on what can be done in the pursuit of the former anti-rape principle. Suppose that the public rape of rapists or their family members would dramatically reduce the amount of rape that occurred in a society, this would still not be an acceptable policy to pursue and would not be directed towards the common good. The promotion of anti-rape is in the common good of all and even the victims of this public violation of dignity would benefit from a society with less rape, but this does not mean that these victims have sacrificed their private good for the common good. It is not in the common good to promote anti-rape by disrespecting it. In this we see a cornerstone of Natural Law thinking encapsulated in the Pauline directive that we must not do evil that good may come (Rom. 3.8).[2]

It is here where rights enter the picture. Principles of right action impose obligations on political actors to respect certain duties to refrain from certain forms of conduct, regardless of the consequences (ST, I-II, q. 20, art. 2, 5). Where those duties pertain to fellow members of our civic community, they entail fundamental rights that those members are entitled to the protection of. As Finnis, drawing upon Aquinas (ST, II-II, q. 58 art. 1), notes,

the object of the virtue of justice, and thus the source of the justness of just acts and arrangements, is that people all get what is theirs by right. Which is to say: that (to the extent measured by one’s duties of justice) each person’s rights are respected and promoted.

These rights are not subordinate to or in conflict with the common good, properly understood. A system of rights protection is itself a common good: the legal system is a good for each and every member of my community and fundamental rights not to be raped or tortured or murdered remain undiminished when one person is protected by them. It is therefore a mistake to view the common good as something removed from the fundamental rights of individuals such that it might act upon or supersede over them. Rather, it is better to conceive of the common good and the natural law as co-constitutive; the common good sets boundaries on and helps to define the limits of rights, but the common good is itself defined partly by reference to natural rights.

You cannot torture or rape your way to the common good. The person who is forced against their will to die for the State has not sacrificed a private good for the common good of peace. This person has been forced to sacrifice for the preservation of peace for the majority but not the community. To force someone to sacrifice their dignity or even their life so that the majority will benefit is to deny that person enjoyment of the common good and so to undermine what makes the common good common. This victim does not sacrifice a private good for a common good. They do not enjoy the common good. They’re dead. Someone may choose to make that sacrifice for the good of their community. There may be other reasons to justify conscription. But we cannot say that forcing people to die for us is in their own interest.

A common good constitution will be geared towards the pursuit of valuable ends that are conducive to the flourishing of all persons, but it will also necessarily entail respect for fundamental rights such that the means chosen to achieve those ends are reasonable and proportionate. It is a mistake to see the common good as simply a state of affairs to be pursued or a collection of ends to be promoted. It is also instantiated by respect for principles of right action. It is both deontic and teleological, and equally so. In classic theory, law is an ordinance of reason directed towards the common good and so unreasonable or wicked ordinances that breach the rights of subjects are not conducive to the common good and are not law (ST, I-II, q. 90, art. 4).

These fundamental rights are not private goods any more than peace or justice is private simply because my enjoyment is something that I experience as an individual. A system of law which ensures peace and justice for all is a common good that we all benefit from. Legal rights are public claims of right action according to justice. When I demand the protection of law, I am not appealing to a private good but to a public scheme of justice; to a system of fundamental principles that is not diminished when I benefit from it. My dignity is mine and not yours. But the system of duties and rights which protects our dignity is ours, shared in common, and beneficial to all. With respect to McGowan, it is fantastically Orwellian to describe this protection of dignity as tyrannous.

The Separation of Powers and Judicial Review

Common good constitutionalism is concerned with both public and individual claims, properly directed towards the good. But the common good must genuinely be common; its pursuit cannot collapse into a majoritarian consequentialism; it must remain respectful of the natural rights of individuals. In this post, I’m suggesting that this will have implications for constitutional design, specifically as it relates to the separation of powers and the judicial role.

Under our traditional separation of powers, the legislature, being the institution with the greatest democratic legitimacy, steers the ship of state, providing general guidance as to the direction of travel as well as general rules and principles for how we ought to get there. The executive, with its expertise in the implementation and drafting of policy, instantiates the crew by following the direction of the legislature, exercising discretion when appropriate. Finally, the judiciary focusing on the nuances of concrete cases, operates a course-correction function to ensure that the pursuit of legislative or governmental ends does not venture where it ought not. It ensures that the means used to achieve the ends of human flourishing do not breach principles of right action in so doing. This correction will inevitably have an impact on general principles that will be derived from specific cases such that the injustice or error that prompted one case is not replicated in others.

It is therefore quite unlikely that the executive or legislative role, focused as it is on general claims and policies, will be able to fully instantiate the common good. A common good constitution must envisage principles of institutional design that are conducive to the flourishing of each member of our community. If the common good manifests in both general policy and respect for individual rights, then there must be some way to ensure that those policies that purport to be in the common good are genuinely in the good of every member of the community. To do that, there must be some institutional mechanism available to resolve disputes which arise when an individual claims that a general policy infringes upon their fundamental rights or where the executive pursuit of its policy does not conform to the limits set down by the legislature or implied by the principles of natural justice and the rule of law.

The key point to be made in this context is that the skills needed to resolve disputes such as this are not the same as those needed to draft or implement general policy. There is a central role for a court of law here and there are good reasons to think that this role ought to be exercised independently from other institutions. As Aquinas (ST, II-II, q. 58, art. 1), citing Aristotle, notes, “A judge renders to each one what belongs to him, by way of command and direction, because a judge is the ‘personification of justice.'”

While the executive and legislature may be best placed to pursue general policies directed towards the common good, we should be careful not to equate those policies with the common good. Even policies pursued in good faith by political actors with democratic authority and longstanding expertise may nevertheless infringe upon the fundamental rights of individuals. For these general policies to genuinely operate in furtherance of the common good, they must be appropriately respectful of the principles of right action that constitute and maintain a flourishing community of equals. Importantly however, the principle of equality before the law means that the resolution of these disputes must have an impact upon general policy: to actually correct the course of travel, rather than prevent a single injustice but permit countless others affecting those unable or unwilling to go to court.

There is no reason to think that expertise in general policymaking is necessary for the judicial aspect of a common good constitution. Indeed, the nemo judex principle and the need for an impartial assessment of these rights claims should lead us to conclude that a separation of powers is essential for the common good. The body tasked with assessing the compatibility of these policies with the principles of natural justice should not be the same body who created the policy in question. This is to prevent abuse of power, yes. But it is also necessary because analysis of the impact of generally desirable policies on individual claimants involves a kind of expertise that is quite distinct from that needed to create or pursue policy itself. The role of the court here is to ensure that the pursuit of ends associated with the common good is respectful of the principles of natural justice and the entailed fundamental rights of legal subjects. Only then can our constitutional order be said to be structured in a manner that is conducive to the flourishing of all members of our community.

  1. More contemporaneously, this directive is expressed in the language of inviolable fundamental rights and reaffirmed as applying to government and those holding public office; John Paul II, Encyclical Veritatis Splendor ‘Regarding Certain Fundamental Questions of the Church’s Moral Teaching’ (6 August 1993), ss. 80, 95-101. ↑

Property and the Common Good – Reviving Old Debates

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This is the third 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. Rachael Walsh is an assistant professor in the School of Law, Trinity College Dublin.

Introduction

Property rights – whether guaranteed through private law or constitutional guarantees, or both – provide an illuminating example of individual rights that are imbued with common good-oriented limitations.  In the property rights context, the common good is implicated from the ground up. As Eric Freyfogle puts it, ‘[p]roperty rights are sanctioned and supported within communities because community members collectively decide or sense, in one way or another, that a private-property regime will benefit them.’ Property rights both contribute to, and are constrained by, the broader aim of securing the common good. Restrictions on the exercise of property rights are capable of both enhancing or impeding the realisation of that aim. 

Accordingly, the justification and limits of property rights are inevitably intertwined with evolving debates within communities about how best to achieve the common good. A clear understanding of property’s dual relationship with the common good – as both a tool for securing the common good and a potential impediment to progressive change – is of crucial significance as communities attempt to tackle complex problems that may require restrictions to be imposed on the exercise of property rights. For example, ensuring access to safe and secure housing for all and responding to climate change may require responses that limit property rights. A lack of attention to property’s common good dimensions could impede the development and implementation of effective policy responses to these pressing social challenges.

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Symposium: Securing the Common Good

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The classic legal tradition has seen a revival in recent years. There has been a jurisprudential turn amongst US- and European-based scholars to revive this tradition in mainstream academic discourse and to prise conservative legal thought away from classic liberalism, libertarianism, and arid positivism. A core part of this intellectual project has involved probing foundational questions about law and political authority: What is the purpose of law? What justifies law’s claims to authority? How should we conceive of the relationship between the precepts of natural law and posited law?

While these big foundational questions are critically important, also of paramount importance for this project to continue to flourish is answering second-order juridical questions about how the basic precepts of the classic legal tradition are best made concrete under contemporary social, economic and political conditions. While the classic legal tradition is emphatic that questions of institutional design within a polity are within the scope of reasonable determination—provided they are oriented toward the basic charge of upholding the common good—it is nonetheless worth asking if some arrangements may be particularly conducive to this task under current conditions.

This symposium hosts several scholars offering insight into how a legal order might best be ordered to secure the common good. Their remarks are adapted from presentations given at the International Society of Public Law Annual Conference on 9 July 2021.

The first piece, “Myths of Common-Good Constitutionalism” is by Adrian Vermeule and Conor Casey. Subsequent pieces include “Property and the Common Good—Reviving Old Debates” by Rachael Walsh,  “Reclaiming the Natural Law for 21st Century Constitutionalism” by Xavier Foccroulle Ménard, “Rights and the Common Good” by Michael Foran, and “On the Tyranny of Rights” by Jamie McGowan.

Reclaiming the Natural Law for 21st Century Constitutionalism

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This is the second 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. Xavier Foccroulle Ménard holds a B.C.L. and an LL.B./JD from McGill University Faculty of Law and an LL.M. in legal theory from the University of Toronto Faculty of Law. He works at Norton Rose Fulbright LLP in Montreal. He would like to acknowledge the Runnymede Society and Advocates for the Rule of Law for contributing to the elaboration of these ideas.

Introduction

The tide is undoubtedly turning: after a long period of exile, classical natural law is once again knocking on the door of academic jurisprudence, and many of us have been willing to extend our arms and welcome it back with a smile.[1] That common good approaches are again part of scholarly discourses is an absolute blessing and a great source for rejoicing.[2] Without a doubt, a reintegration of natural law thought into constitutionalism is necessary to fully address the main and perennial issue: how should constitutions be interpreted?

One major reason for this renewed interest in the common good is that modern approaches to the question of constitutional interpretation have been viewed as unsatisfactory. This is particularly true of the conservative legal movement in the United States. Between the positivistic formalist pole on the one hand, favouring strong respect for the separation of powers and proceduralism, aiming to provide greater legal stability and certainty, and the progressive pole on the other hand, asserting the fading authority of the framers of the Constitution, believing in the constant and permanent necessity for change, where the law must be adapted and applied to new social realities, originalism has been elected the default favourite of the legal conservative movement in America. From Justice Scalia to today, with Justice Barrett now seated at the Supreme Court, the ascendency of originalism is undeniable. But originalism arguably peaked last year with Bostock v. Clayton County, Georgia,[3] now a landmark case, in which Justice Gorsuch used positivistic originalist reasoning to protect the sexual orientation and gender identity of individuals under Title VII of the Civil Rights Act of 1964. The Bostock decision only catalyzed the emergence of a new movement within American legal conservatism looking for alternative answers to our question of what the proper method to constitutional interpretation is.[4]

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