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.
The provision creating a private right of action for violations of the Texas Heartbeat Bill and establishing the $10,000 penalty has attracted significant comment. Critics have routinely referred to it as a “vigilante” provision. Others have proposed—apparently as some sort of reductio ad absurdum—different moral acts or crimes that could be pursued through such a provision. Precisely why citizens pursuing actions created under law through the courts would be vigilantes, who necessarily are acting outside the law because of perceived insufficiency of the courts, is a little unclear. But what is clear is the argument that the private right of action is somehow alien to the American system of justice. Indeed, this seems to be the significant objection to the law. It makes citizens informers on one another and creates perverse incentives.
While the debate over the Texas Heartbeat Bill is for the most part the same debate over abortion that has been going on with greater or lesser intensity since 1973, it might be helpful to leave aside the question of abortion specifically. While the Heartbeat Bill has revealed the sharp limitations of the pro-life commitments of some professional Catholics, it has not really moved the national debate significantly. But the private right of action the law contains is worth considering separately, insofar as it suggests new directions for concrete common-good legislation. All manner of evils are regularly discussed today. The idea of a private right of action to address such threats to the common good is an attractive one, especially given the practical limitations on actions by public authorities. That is, public authorities necessarily have to make choices with their finite resources regarding enforcement priorities. Individuals are not so constrained: they can pursue one case to the extent they want to.
The question, therefore, of the compatibility of the private right of action with some American law (or the broader Anglo-American tradition) is important, since its alleged incompatibility is the most significant objection to such laws. (Or at least the most common.) The private right of action, of course, is altogether consistent with the older ius commune. The Roman state, for example, did not have public prosecutors or regulatory agencies with lawyers at the ready to prosecute violations of the law. Private persons brought criminal actions with a written indictment before the praetor (e.g., Dig. 48.2.3). But critics of legislating in favor of the common good are also invariably critics of introducing Roman concepts into American law, so hauling out the Corpus Iuris probably will not end the debate. Perhaps it would be better to head off debate altogether by denying the premise that the Anglo-American tradition is somehow separate from the ius commune, as opposed to a local specification of the ius commune. Donahue’s magisterial 1992 Tulane Law Review essay—to say nothing of, for example, Maitland’s work on Bracton and Azo—stands for the proposition that we ought to deny it. (See Charles Donahue, Ius Commune, Canon Law & Common Law in England, 66 Tulane L. Rev. 1745 (1992).)
But cutting the debate short is not nearly as much fun. In truth, the idea of private rights of action in pursuit of the common good is older than the Republic, coming proximately from the English common law. There is also strong support for the idea in Catholic political thought, notably in the writings of the Spanish Jesuit Francisco Suárez. Suárez in turn relies on Thomas Aquinas. The arguments, both of Blackstone and Suárez, touch upon the very essence of political life. While one may think the Heartbeat Bill is wicked or merely counterproductive—and not a few public Catholics have weighed in to say just that—there can be much less dispute about its enforcement mechanism. The enforcement mechanism has been viewed as extremely productive for a long time. For this reason, proponents of common-good legislation ought to take a closer look at this enforcement mechanism in the context of other issues.
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Blackstone’s Commentaries address so-called popular actions, also known as qui tam actions, because the plaintiff brought the action qui tam pro domino rege, etc., quam pro seipso in hac parte sequitur—“who prosecutes this suit as well for the lord king, etc., as for himself” (3 W. Blackstone, Commentaries on the Laws of England *160). In a popular action, the law establishes a particular penalty, which will be recovered by the person who sues for it (2 Comm. *437). However, Blackstone observes that “it is clear that no particular person, A or B, has any right, claim, or demand, in or upon this penal sum, till after action brought[.]” (ibid.). Once the plaintiff commences suit, the right to the penalty attaches to the plaintiff even as against the king (ibid.). And the judgment, except in cases of collusion (i.e., when a plaintiff colludes with the defendant to bring a suit and lose it), is conclusive even against the king (3 Comm. *160–61).
Here it is worth noting, as in so many cases, the English common law follows the Roman law, emphasizing the futility of any attempt to sever the Anglo-American tradition from the ius commune. Blackstone cites Aemilius Macer in the Digest, who tells us that the principle of double jeopardy applied under the Lex Julia except in cases of collusion (Dig. 47.15.3.1). That is, an acquittal in a prior prosecution barred retrial. However, if the subsequent prosecutor proved collusion between the prior prosecutor and the defendant and obtained a declaration, the defendant could be prosecuted again (Dig. 47.15.3.1). Likewise, under a statute of Henry VII, collusion in a popular action means that the defendant could be prosecuted again (3 Comm. *160–61).
The most famous American example of qui tam actions is the federal False Claims Act of 1863, 12 Stat. 696–99, 31 U.S.C. §§ 3729–3733. The law was enacted during the Civil War in response to a wave of fraud upon the government beyond what could be easily detected and prosecuted at the time by the government. Section 4 of the False Claims Act creates a private right of action for “any person” who knows about a violation of section 1 of the Act, which sets forth a lengthy list of frauds against the government. The Act established a forfeiture of two thousand dollars (approximately $40,000 in 2020 dollars) plus double damages and costs, and it granted to the private plaintiff one half of the forfeiture plus one half of the damages recovered and collected (12 Stat. 698). There were significant amendments to the False Claims Act in 1986, but they are beside the point. One finds in the 1863 Act all the salient features of Blackstone’s popular action: a provision allowing anyone to pursue a claim and a particular penalty, to be recovered by the plaintiff.
Blackstone articulates an interesting theory in support of these actions. He argues that they stem from the “implied original contract to submit to the rules of the community, whereof we are members” (3 Comm. *159). That is to say, the so-called social contract requires that we obey the laws of the community. One of the laws of the community is to obey the laws set forth by its legislature. If we violate those laws, a debt is incurred, which is either paid to the person injured or to any of the members of the community who ask for it (3 Comm. *159–60). Elsewhere, Blackstone observes that these penalties “are placed as it were in a state of nature, accessible by all the king’s subjects, but the acquired right of none of them: open therefore to the first occupant, who declares his intention to possess them by bringing his action; and who carries that intention into execution, by obtaining judgment to recover them” (2 Comm. *438).
What an interesting and evocative justification, redolent of England in the 17th and 18th centuries. Certainly the appeal to a state of nature opens to us the vista to Hobbes and Locke and the rest of it. The implied contract of a community means that we must obey the laws of the community. When we break those laws, a debt is incurred. That debt, in some cases, must be paid to the person injured by the breach. In other cases, the debt is placed “as it were in a state of nature,” available to any member of the community who will take the trouble to claim his or her right in the debt. This claim is made through a judicial process. Of course, when one starts talking about the state of nature, much less Hobbes and Locke, alarms begin sounding among those committed to restoring the older tradition of jurisprudence. However, such concern might not be as warranted as initially feared.
For one thing, with only a little trouble, one can reformulate this theory in terms wholly consistent with the tradition of the ius commune. The temporal common good is peace, which is nothing more than the unity and order of the community (De civitate Dei lib. XIX, c.13). All law is ordained to the common good (ST I-II q.90 a.2 co.; I-II q.96 a.1 co.). Violations of the law therefore are contrary to the common good and public authority must punish the violations that tend to the injury of others, the punishment of which human society requires if it is to endure (ST I-II q.96 a.2 co.; Cont. gent. lib. III, c.146 ¶¶ 4–5). Establishing a penalty to be paid to the first person who claims it emphasizes the nature of the offense against the community. Here, one can look to the Roman law for some support. Paul in the Digest tells us that the popular action looks to the public right (ius populi) (Dig. 47.23.1). If more than one person wanted to bring the action, the praetor would choose the best plaintiff (Dig. 47.23.1). In other words, in the Roman law, the popular action very explicitly vindicated the public right.
One can find further support for the law in the work of the Spanish Jesuit Francisco Suárez, the Doctor Eximius et Pius. In the De Legibus, Suárez holds that the power to make laws resides in the whole body of mankind (De Legibus lib. III c.2 § 3). Here, Suárez cites Aquinas, who tells us that the law should have coercive power in order to be law, and “Hanc autem virtutem coactivam habet multitudo vel persona publica, ad quam pertinet poenas infligere”—“But this coercive power is vested in the whole people or in some public personage, to whom it belongs to inflict penalties” (ST I-II q.90 a.3 ad 2). Suárez also reminds us that Aquinas acknowledges the difference between a free people who can make laws for themselves, even if they have a king, and a people who cannot make laws for themselves (ST I-II q.97 a.3 ad 3). In Suárez’s view, Aquinas likewise holds that the entire political community possesses the power to make laws, which is transferred (or not) to some “public person.” For his own part, Suárez continues the medieval tradition of relying on the Lex Regia, citing Digest 1.4.1 and 1.2.2.11, to explain the transition from power from the whole community to one man.
Suárez holds that it is a matter of faith that civil magistracy accompanied by temporal power for the government of men is just and harmonious with human nature (De Legibus lib. III c.1 § 2 ¶ In hoc puncto). Here he relies on Aquinas’s interpretation of Aristotle: man is a political animal and has a natural and right appetite to live in society—“Primum est hominem esse animal sociale, et naturaliter recteque appetere in communitate vivere” (De Legibus lib. III c.1 § 3). He details the familiar distinction between family and city (and kingdom), as well as imperfect and perfect community (De Legibus lib. III, c.1 § 3). These communities, he tells us, again following Aquinas, must have government as a matter of reason and natural law (De Legibus lib. III, c.1 § 4). The question of course is how they get that government.
Suárez sets forth an argument that will become familiar later: man is born free, no one has jurisdiction or dominion over another, and therefore the title to rule must come from something else (De Legibus lib. III, c.2 § 3). He finds it in the usual place: mankind comes together by some special will or common consent into one political body (“quatenus speciali seu communi consensu in unum corpus politicum congregantur uno societatis vinculo”) (De Legibus lib. III, c.2 § 4). Indeed, they come together to help each other achieve some political end and thereby form a mystical body, which is said to be a moral unity (ibid.). It is this formation of a mystical body that necessitates the establishment of a single head (ibid.). Though here Suárez runs into a little difficulty, holding that the formation of a mystical body necessitates government, but also that the submission to government is what creates the unity (De Legibus lib. III, c.2 § 4, ¶ Quia sine gubernatione).
One finds in Suárez, therefore, a certain justification for the kind of social-contract talk that one finds in Blackstone. Perhaps it is not quite the social contract that Blackstone (or Hobbes or Locke) would have recognized, not least since Suárez proceeds from Aristotelian and Thomistic foundations, which were altogether alien to Hobbes and Locke. Of course, Suárez might disagree with Blackstone’s notion of a penalty placed in the state of nature to be claimed by anyone who is willing to take the trouble. A mystical body requires a head, who receives from the community public authority. Allowing any member of the community to vindicate certain offenses immediately presents a tension with that idea. At least for specified offenses, the head of the community seems to be the first person who notices the offense and is willing to do something about it. That presents serious difficulties. We must look elsewhere for another principle that might resolve this tension.
In his Defensio Fidei, written against the errors of England under James I, Suárez discusses at length whether a tyrant may be slain (Defensio Fidei lib. VI, c.4). Suárez has a problem, though: the Council of Constance and numerous doctors condemn the proposition that tyrants may be slain by anyone on private authority (Defensio Fidei lib. VI, c.4 §§ 2–3). Yet he wants (perhaps a little too badly) to find some basis for private individuals to act against a tyrant. One basis he reasons toward is the defense of the state (Defensio Fidei lib. VI, c.4 § 13). The state, Suárez tells us, unless it makes a contrary statement, is always willing to be defended by anyone, citizen and foreigner alike (Defensio Fidei lib. VI, c.4 § 13, ¶ Et quamdiu contrarium). Likewise, the state may defend itself by deposing even a lawful king who is ruling tyrannously (Defensio Fidei lib. VI, c.4 § 15, ¶ Nam in republica).
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We find in Suárez therefore two principles. First, that a community comes together by agreement for a political end, forming a mystical body that requires government. Second, that a community is always willing to be defended by anyone unless it says otherwise. Now it is opportune to recall Blackstone’s justification for private actions. By the nature of the implicit contract we make when we enter into society, we agree to obey the laws of a legislator. When we break those laws we owe a penalty. The penalty, Blackstone tells us, is placed into the state of nature and may be claimed by any member of the community who wants to take the trouble to claim it (provided he is in good faith). One sees immediately the profound resonances between Suárez and Blackstone at least on a theory of government.
One may take it a step farther and say that Suárez provides some theoretical backbone for the popular action as well. The state is always willing to be defended by anyone unless it says otherwise. In many cases, it does say otherwise, limiting the individuals who can vindicate wrongs against its laws. As Suárez (and Aquinas) suggest, it does this by transferring the political authority of the whole community to someone who makes and enforces the laws. But in some cases, it leaves open the possibility of anyone defending it. Indeed, the exclusiveness of a popular action even against the king suggests that precisely something of this sort is happening. And in these cases, it describes how the defense is to take place: taking property that belongs to the malefactor.
The upshot of all this is that, so far from being alien vigilantism, there is deep support for creating private rights of action ordered to the common good. Of course, the mere fact of justification for such rights of action does not mean that any particular example will be prudent under the circumstances of a given time or place. Nevertheless as more thought is given to legislation explicitly ordered to the common good, supported by a robust concept of the common good, the question of enforcing that legislation and defending the community will necessarily come up. The private right of action ought to be part of the discussion of how best to solve that problem.
Pat Smith
