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.

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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]

Continue reading “Reclaiming the Natural Law for 21st Century Constitutionalism” →

2021 marks the 700^th anniversary of Dante’s death and has seen the publication on March 25 of Pope Francis’ Candor Lucis Aeterna, a lucid analysis of Dante and his work.  This is the second of a series of Ius & Iustitium pieces by Aníbal Sabater discussing lawyers in the Divine Comedy.  The first piece, “Dante’s Lawyers from Hell,” can be found here.

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It is a stroke of literary genius and an astonishing legal insight.   The gatekeeper who meets Dante and Virgil upon arrival in Purgatorio turns out to be Julius Caesar’s archnemesis, staunch defender of the Roman Republic, and universal symbol against tyranny, Cato the Younger.  How a pagan divorcee and unrepentant suicide like Cato was spared Inferno and appointed Purgatorio’s warder is commonly explained away by reference to freedom.  Dante—the trite explanation goes—felt compelled to vindicate Cato who, like himself, had been an advocate of individual free will and liberty for the people.  While not incorrect, this explanation misses much of the nuance in Dante’s thinking, artfully revealed in the dialogues throughout Purgatorio’s two first cantos.

Cato’s opening words in the Commedia try to make sense of Virgil and Dante and show the deliberation characteristic of a fair judge.  He wonders whether they are rebels who, subverting natural order, have escaped Inferno, or whether they have been allowed to leave it and arrive at Purgatorio by a special grace: “Son le leggi d’abisso così rotte? / o è mutato in ciel novo consiglio …?” (“Are the laws of the abyss thus breached / or is there some newly changed decision in Heaven …?”).¹

The dispositive term here is “leggi” (laws).  Using it, Dante pays homage to the one hexameter that Virgil devoted to Cato in the Aeneid. Among the dead in Elysium—Book VI of the Aeneid says—Aeneas, saw “almost hidden from sight the pious, and Cato giving them laws” (“secretosque pios, his dantem iura Catonem”).² Through this and other sources, such as Lucan, Dante was well acquainted with the tradition that presented Cato as a wise legislator, the one to whom the pious—those who worship the gods of the family and the city—turned for guidance.  But Dante knew that man-made law (even if made by Cato) is just a lesser form of law, subordinated to natural, divine, and eternal law.³

In Dante’s mind, that Cato was once a wise legislator counts as a merit that allows him now to oversee the application of eternal and divine law in Purgatorio (it is his task to ensure that no one comes to Purgatorio who is precluded from doing so by God’s judgement, and conversely, that no one escapes Purgatorio before his God-appointed time).  Of course, this “promotion” from human lawgiver in Virgil’s Aeneid to supernatural law enforcer in the Commedia has biblical undertones: “He that is faithful in that which is least, is faithful also in that which is greater.”⁴

In the Commedia, Virgil and Dante immediately acknowledge Cato’s preeminence and divine commission.  Dante kneels to listen to Cato;⁵ and Virgil answers in detail Cato’s question about his and Dante’s arrival in Purgatorio, explaining that this is the result of a singular grace.  Moreover, in full submission to Cato’s authority as guardian of Purgatorio, Virgil asks Cato to approve Dante’s visit—and in doing so raises the issue of liberty. Dante, says Virgil, should be allowed to visit Purgatorio because “he is seeking liberty, which is so dear, as he who lays down his life for it knows. You know it, because death was not bitter to you in Utica, where you left the outfit [your body] that will be so pure on the great day” (“libertà va cercando ch’è sì cara / comme sa chi per lei vita rifiuta. / Tu’l sai, che non ti fu per lei amara / in Utica la morte, ove lasciati / la vesta ch’al gran dì sarà sì chiara”).⁶

Virgil’s words (which undoubtedly reflect Dante’s personal views) explain the role of Purgatorio.  It is the place where the soul is finally cleansed from sin and earthly attachments and reaches the true freedom necessary to enjoy the beatific vision.  But they also give away the reason that Cato is not in Inferno—and indirectly reveal the true goal of any law, positive or divine. 

Cato does not appear with the suicides in Inferno’s Canto XIII because his death, according to the Commedia, had a purer motive than despair or rebellion—namely, Cato’s desire to rid his body from unjust human laws, the positive laws that Caesar was enacting to restrict the freedoms of the republic and promote a personalistic legal order.[efn_note]Whether by placing an unrepentant suicide in Purgatorio Dante was going with poetic appeal over orthodoxy is heavily debated.[/efn_note] Cato thus receives praise in the Commedia for rejecting statutes contrary to the common good and natural law.  Had he—and not Caesar—prevailed in the civil war, Rome’s laws would have been better ordered.

In all this, Dante is in opposition to St. Augustine, who had a grim view of the Roman legal system, which he saw as driven by vice and—at the time of the Empire—a cult of the demonic.[efn_note]City of God, Books 1 & 2.[/efn_note] Dante, by contrast, thought that not only the Christian Empire but also its Roman predecessor were capable of good, and did not hesitate to place emperors from each of them in Paradiso, on a single condition: that the emperor had governed on earth “sub Deo et lege.”

That rulers, including the emperor, must act within the boundaries set forth by God and valid human law is of course a bold claim to make today… but it wasn’t at the time of Dante, especially for those who, like him, lived the Scholastic tradition.  El Fuero Juzgo, the Castillian legal code in force from the Middle Ages (if not before) until 1889, contained this stern admonition: “You will be King if you act rightly, and if you do not act rightly, you will not be king” (“Rey serás, si fecieres derecho y si no fecieres derecho no serás rey”).[efn_note]Fuero Juzgo, Prólogo (“De la elección de los reyes et de lo que ganan”), Ley 2.[/efn_note] In other words, the king is king so long as he acts for the common good; otherwise, his kingship is only apparent. Other 13^th Century Castillian laws went as far as warning the king that unjust behavior on his part would entitle his subjects to rebel.[efn_note]Siete Partidas, Part. II.1.10.[/efn_note]

Cato’s uber-Thomistic understanding of the law permeates his appearance in the Commedia.  Towards the end of Purgatorio’s Canto I, Virgil notes that Cato’s former wife Marcia, who, like Virgil, now dwells in Inferno, still misses and loves Cato.[efn_note]Pur., I, 78 and ff.[/efn_note] In Canto II, Virgil, Dante, and others are moved by a sweet song from Casella.[efn_note]Pur., II, 112 and ff.[/efn_note] In both scenes, Cato remains untouched, as if considering these events just human trifles, and urges his guests to focus on their penance and salvation and dispense with personal affections in Purgatorio.  This “unsentimentality” may seem anti-climactic, but it is a powerful poetic technique.   Law is an ordinance of reason, not of sentiment or the will, and it is becoming that its enforcer be a reasonable, not a passionate person.  That enforcer, however, is still in Purgatorio himself, and thus in need of spiritual improvement before ascending to Paradiso.  In Purgatorio, he is doing justice—but still needs to learn mercy.  Cato’s seeming coolness is thus Dante’s subtle preparation for the reader’s encounter with Trajan, the example of a merciful judge, which will be addressed in the next piece in this series.

—Aníbal Sabater

Ius & Iustitium is happy to present this guest post by O.A.S.

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Last month, in its boundless charity, the Supreme Court announced that it would allow a Catholic foster care agency to continue to exist—at least for the time being.  More precisely, the Court held that the foster care agency can continue to operate until the City of Philadelphia amends its non-discrimination law to remove a minor and never-before-utilized exemption provision.  Once that happens, the City can again move to shut down the Catholic agency, and the parties can spend another several years embroiled in litigation. 

Continue reading “What Both Sides Got Wrong About Fulton” →

Ius & Iustitium is pleased to present this guest post by Kerry Sun, Stéphane Sérafin, and Xavier Foccroulle Ménard. Kerry Sun is a graduate of the University of Toronto, Faculty of Law, and a former clerk at the Court of Appeal of Alberta and to Justice Sheilah L. Martin at the Supreme Court of Canada. Stéphane Sérafin is Assistant Professor, Faculty of Law, Common Law Section, University of Ottawa. Xavier Foccroulle Ménard is a graduate of McGill University, Faculty of Law and the University of Toronto, Faculty of Law, and he works at Norton Rose Fulbright LLP. 

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I. Introduction

In a previous essay, published in the Canadian law journal Constitutional Forum/Forum constitutionnel, we observed that recent debates on common good constitutionalism in the United States and elsewhere have reverberated in Canada.^[1] Discussing some misconceptions of the natural law tradition, we alluded there to the differing perspectives on legislative activity that distinguished positivist from common good-inflected accounts of legal interpretation.^[2] More recently, controversies have emerged pertaining to section 33 of the Canadian Charter of Rights and Freedoms, a peculiar feature of Canada’s constitutionally entrenched bill of rights that allows a legislature to override judicial interpretations of certain enumerated rights. These offer us an occasion for further reflection on Canadian constitutionalism and the common good, in a more concrete manner. 

Continue reading “Notwithstanding the Courts? Directing the Canadian Charter toward the Common Good” →

Pope Francis’s Apostolic Constitution Pascite gregem Dei drew considerable attention for the pontiff’s wide-ranging reforms of Book VI of the 1983 Code of Canon Law, containing the Church’s penal law. Much of the attention focused on the Pope’s revision to the laws dealing with sexual abuse. Francis has spent much of his pontificate addressing the filth of sexual abuse in the Church and the Church’s response. The new Book VI represents another major step forward in addressing in a serious way the abuse crisis and its consequences. However, there was some attention devoted to the Pope’s general comments on a jurisprudence of penal law within the Church. These comments have a much wider applicability. Indeed, Pope Francis’s insightful connection between charity and the penal law goes to the very heart of human law in St. Thomas Aquinas’s concept.

Continue reading “Charity and the penal law” →

June marks the one year anniversary of Ius & Iustitium.  We started this blog because we recognized a growing dissatisfaction with the mainstream conservative legal movement in the United States, and we perceived a hunger for a better alternative.  The blog went live two days after Bostock and two weeks before June Medical, two Supreme Court decisions that have rightfully shaken the faith in the conservative legal movement’s ability to deliver on its promises.  But the Ius & Iustitium project goes deeper than that.  What we propose is a fundamental re-thinking of jurisprudence that rejects the positivism and liberalism embedded in mainstream conservative legal thought and embraces the classical legal tradition.  

Continue reading “Ius & Iustitium, One Year On” →

We should start by acknowledging the clear positives in the Supreme Court’s decision in Fulton v. City of Philadelphia. First, the Court held that City foster care officials violated the Free Exercise Clause by refusing to contract with Catholic Social Services (CSS) for the provision of foster care services unless CSS agreed to certify same-sex couples for foster care in violation of its religious beliefs. Second, that conclusion was unanimous—every justice agreed that the City had violated the Constitution in some fashion. The liberal justices did so without even so much as a qualifying concurring opinion noting the narrowness of the majority’s holding, as we saw Justice Kagan issue in Masterpiece Cakeshop in 2018. Philadelphia lost and lost big; we should hope that City officials will take the lesson to heart. And if they don’t, we should hope the district and circuit court judges think again before ruling in the City’s favor a second time.

But therein lies the problem with Chief Justice Roberts’ majority opinion. The grounds underlying the decision are narrow—very narrow indeed. And recent experience suggests we should be wary of Philadelphia officials trying again to cut off CSS’s foster care certification services, with a judiciary again ready to cover for them.

Continue reading “Dance Lessons With the Chief Justice: Fulton v. City of Philadelphia” →