Ius & Iustitium is pleased to present Adrian Vermeule’s response to the contributions in the symposium on his recent book, Common Good Constitutionalism. A general introduction to the symposium (including links to the contributions) may be found here. Vermeule is the Ralph S. Tyler Professor of Constitutional Law at Harvard Law School.
My heartfelt thanks to the editors of Ius & Iustitium for organizing this illuminating symposium on Common Good Constitutionalism (CGC). The contributions of the participants uniformly comprehended the thrust and aims of the book, and generally added valuable explication or elaboration of its ideas. Taken as a group, the participants have, for the most part, sketched a healthy conception of the relationship between the venerable theory of classical lawyering and its practice under current circumstances. My remarks will center on that relationship.
In general, the classical legal theory laid out in CGC is, as Michael Foran rightly says, “deliberately unoriginal” as theory. In my view, the quest for novelty in legal theory misconceives the very nature of the subject; there is nothing new under the sun, and the basic outlines of a classical approach to legal interpretation, for example, were hashed out as long ago as the debates between Proculians and Sabinians. The better conception is that originality is not the aim of legal theory, but a byproduct of legal theory when done well, and indeed can only be attained as a byproduct. The most original and enduring works of the classical legal tradition have been those that aimed, paradoxically, not to break new theoretical ground, but to collect, restate, adumbrate, and develop principles and doctrines by unfolding their premises and implications. (Throughout, I refer to development in John Henry Newman’s sense, discussed at CGC 123 et seq.). A number of these works, from Gaius’ and Justinian’s Institutes forwards, have been explicitly cast as textbooks. Even more fundamentally, one is not taught a practice through abstractions, not exclusively anyway, but is socialized and habituated into it. As Aníbal Sabater powerfully argues, the consequence is that classical legal practice did and still must emphasize the training of lawyers in a special kind of political virtue, centering on regard for legal justice ordered to the common good.
Where the classical legal theorist must self-consciously break new ground is in the application of enduring principles to new settings. This is an exercise in a kind of translation and development, one that preserves the fundamental legal ontology and principles of the classical tradition, with its explanations of the relationships between and among different forms and sources of law (including civil positive law, natural law, and the law of nations). But within the horizon of that ontology, the classical lawyer will have to do the work of the jurist by making determinations of those principles under new circumstances — or more often, given that role morality is itself one of the core principles of the classical law (CGC 43), by acknowledging and enforcing reasonable positive determinations made by public authorities, interpreting them when necessary to accord with the broader background of ius.
Conor Casey’s contribution provides a particularly clear illustration of this work of translation. Elaborating the discussion of administrative law in CGC, Casey offers a welcome account of the goods that an executive motivated by an account of genuine political flourishing could achieve through the powerful administrative apparatus ubiquitous to modern government. The administrative state, on this view, can determine and make concrete background principles of the natural law, for example by taking “robust steps to protect unborn life (by restricting abortion services) and implement a pro-family agenda of promoting marriage and easing financial burdens on current and would-be parents (through tax subsidies and enhanced child benefit payments and the like).” A related example, one I plan to explore in future joint work with Casey, would be to adapt to current conditions the Roman institution of the curator ventris (Digest 37.9)— essentially a quasi-public trustee appointed to represent the interests of an unborn child. This would amount to a development of the institution, not a straight replication, because the genesis of the curator ventris lies in the complexities of Roman inheritance law, and its main point was to represent the unborn child’s interest in an estate. As I mention shortly, however, wooden replication of particular first-order rules and institutions of Roman law and the ius commune in the circumstances of a different polity will often be a kind of juristic error.
The task of the jurist is made less daunting by the observation (CGC 3 and passim) that substantial stretches of our legal practice remain implicitly organized around and suffused by classical principles. Our judges write better than they know, in part because, as the classical theory itself holds, the real ontology of legal principles is objectively valid at all times and places; it presents itself insistently to the mind, takes an effort of will to force away, and will inevitably tend to reassert itself, even only implicitly, in the practice (although not the off-hours theorizing) of even the most relentlessly positivist judge. Casey’s subject, the administrative state, provides a large-scale example. As CGC and its predecessor, Law and Leviathan, both argue (yet a few commentators have somehow missed), important elements of modern administrative law amount to juristic adumbration of enduring background principles, which in a number of cases can actually be traced back to the ius commune, and which are in a deep sense unwritten, even if they are written down in judicial opinions, because they are not formulated in fixed texts. The courts show no real anxiety about tracing their genesis to any positive legal enactment, treating them instead as freestanding legal principles with dimensions of both scope and weight. Thus Justice Kennedy, writing for the Court in Bowen v. Georgetown University Hospital, commented blandly and without citation to any positive legal text that “retroactivity is not favored in the law” — a master principle that does not neatly track any particular provision of our own written Constitution, and that the Court treats as an important, albeit defeasible, precept of ius.
In the rare moments where I found anything questionable in the contributions, it was because one of the participants went astray from the classical account of the relationship between theory and practice. One way to leave the path is to assume that the task of the classical legal theorist today is to replicate or directly implement in our legal systems specific first-order rules (including procedural and remedial rules) of the Roman law or ius commune, rather than adapting and developing the relevant principles in new circumstances. Straight replication will often be a conceptual error, outside of cases where the Roman or medieval law tracked inherent precepts of the natural law, such as the nature and ends of marriage (CGC 131-32). For one thing, first-order rules of civil law are determinations of background principles based on the prudential judgment of lawmakers, law interpreters and influential jurists. Those prudential judgments are partially discretionary, within the boundaries of reasonable implementation of the background principles (CGC 46); they are made for a particular polity in a particular time and place, and may or may not make sense in a different polity in a different time and place. For another thing, and relatedly, one cannot extract first-order rules in isolation from one legal system and simply graft them onto a different one. The first-order rules of any given system are interconnected; they are to some degree mutually adjusted by legal actors, or else co-evolve (for present purposes the distinction between legal design and legal evolution is irrelevant), in ways that make it a potentially grave and disruptive error to lift a particular rule out of one system and drop it into another.
Thus Masurius Sabinus, despite showing excellent taste in juristic pseudonyms, starts down the path of error in commenting that “these general maxims [of the Roman law, on which CGC draws] would have been more helpful if discussed alongside more specific cases.” Putting aside the case of the natural ends of marriage, mentioned above, Sabinus’ example is the suggestion that CGC’s “analogy between the ius honorarium—the law of the praetor’s edict—and the law promulgated by modern administrative agencies” might have been supplemented by the point that “that English-speaking commentators on Roman law … have traditionally compared the praetorian law to Anglo-American equity, and the praetorian interdicts to the injunctions of the chancery.” The problem here is the assumption that the ius honorarium should be mapped to the closest specific remedial and jurisdictional rules of Anglo-American law. Rather what one should extract from the ius honorarium and translate into our world is the more basic function of the praetorian law itself, at least as it evolved after about 125 B.C., which was to provide a mechanism by which magistrates nominally lacking the full power of legislation might exercise remedial and interpretive flexibility in the specification, adjustment and enforcement of general rules of law in particular cases, in order to “adapt civil law to new circumstances and needs of the political community” — or as Papinian put it (Digest 1.1.7.1), the function of “aiding, supplementing or correcting” the civil law (ius honorarium est quod praetores introduxerunt adiuvandi vel supplendi vel corrigendi iuris civilis gratia).
In our world, the principal institution or system of institutions that carries out this aim of adapting and shaping the civil law to new circumstances is the administrative state. If agencies are our common-law courts, they are also our equity courts and, as CGC argues, our praetors, the “living voice” of our law (Digest 1.1.8). “Equity,” in the sense of official action that makes case-specific adjustments to general statutory or regulatory rules of civil positive law, is today typically an administrative function in the first instance, and often the last instance. Agencies use a bewildering array of instruments, including delegated rulemaking, adjudicative interpretation, waivers, variances, licensing, guidances, and prosecutorial and remedial discretion, in order to specify, shape and limit general positive rules and to make de jure or de facto exceptions to those rules. Equity and law in the strict remedial senses of those terms have been largely merged in the courts, but equity in this broader sense — akin to the basic classical legal concept of epikeia (CGC 77-80) — is very much alive and well in the administrative state, which translates and develops the functions of the ius honorarium rather than directly replicating its procedures and remedies.
If one type of error is to try to replicate first-order classical rules under different conditions and in very different legal systems, the opposite error is to quietly pour a modern legal ontology into the ancient vessels of the classical legal tradition. Foran’s otherwise excellent contribution ventures towards this error when he writes that “[CGC stresses] that the protection of rights is necessary for Common Good Constitutionalism, but must be subordinate to the higher aim of advancing the common good. While this is generally true, there is a danger that the important place of fundamental rights as a constitutive aspect of the common good may be obscured.” The idea here seems to be that, on the classical view, rights are subordinated to a higher good, and that some subset of rights must be picked out as “fundamental,” presumably meaning that they are not eligible for this sort of subordination. But this is in fact a modern conception of rights (as argued at CGC 126 et seq.). On the classical view, rights are not to be understood as individual entitlements that must sometimes be overridden for higher collective aims. Rather an ordering to the common good is part of their foundational nature, built into them from the ground up and defining their scope (CGC 166).
The basis for this conception is that rights are objective corollaries of legal justice, the “constant and perpetual will of giving every man his due” (iustitia est constans et perpetua voluntas ius suum cuique tribuens) (Institutes of Justinian 1.1). Because legal justice is itself ordered to the common good, rights are ordered to “the objective needs of society,” as Richard Helmholz puts it in a clarifying but unjustly neglected article (quoted and discussed at CGC 166 & n. 447). As corollaries of justice, such rights are in a sense fundamental, but that sense is not the modern sense, in which “fundamental” often connotes basic individual interests taken to be (potentially) opposed to aggregate collective interests. (As CGC does stress throughout, the common good is not an aggregative concept). Of course there are intrinsic evils that public authority should never commit, but that is because those evils are intrinsically unjust; it adds nothing to say that their commission violates the “fundamental rights” of the target. As Helmholz urges, the objective and communal classical theory of rights has distinctly different foundations than the modern subjectivist and individualistic approach, and the two cannot casually be mixed.
In short, the task of the classical jurist today is to relate theory and practice by applying classical principles to current problems and practice, rather than uncritically replicating first-order rules of the classical law or falling into modern theory under a nominally classical rubric. In light of this account, Jake Neu is dead right to emphasize that practitioners of the law — whether on the bench or at the bar — often have a keener appreciation of the relationship between classical theory and practice than do the more recondite theorists of the American legal academy. Practicing lawyers see, on the ground, that the inevitable indeterminacies of the positive civil law often have to be supplemented, clarified, and shaped by recourse to background principles of general law (ius).
It is then unsurprising that one of the most frequently heard requests from practicing lawyers is to illustrate the principles of classical legal theory by application to new doctrinal settings of practical interest today. CGC begins this work in the chapter on applications, and Ius & Iustitium already contains a number of stellar examples, involving diverse topics such as antitrust, fair use and patent utility in intellectual property law, property rights in animals, nondelegation and corporatism, immigration law, more immigration law, and abortion rights. Of course much work remains to be done; the next stage of the classical revival should be and, I believe, will be to bring theory fully to bear on current practice. As Foran explains with great clarity, CGC aims to articulate a framework within which reasonable disagreements may occur, and the framework itself recognizes that prudential judgments of determination are, within the bounds of the nature of legal reason, system-specific. It thus eschews universal prescriptions (which is why CGC’s own illustrative applications are limited to the American case, the case I know best). Classical lawyers in any given polity will have to interpret and elaborate the determinations made in that polity. What connects all these diverse practices in different polities is a kind of jurisprudential and methodological ius gentium, the principles of the classical legal tradition.