The relationship between law, morality, and liberty is one of those topics that invariably generates fierce debate. And it usually plays out in very predictable ways.
On the one hand, there are some whose first instinct is to lurch for a comprehensive legal response to any number of moral evils to which legal coercion may not be the most optimal or even just response: “There ought to be a law against that!”
The free choice to lie, for example, is always wrong. But we don’t legally prohibit and punish all acts of lying. An act of lying damages the liar himself and many types of communities (friendships, families, etc.). But not all lies directly undermine a political community’s overall ability to secure the benefits of social life. Hence, we generally restrict legal prohibition and punishment of lying to areas such as court proceedings or devices like contracts. By contrast, all acts of murder are wrong in themselves and severely damage society’s ability to function well. The law consequently prohibits and punishes acts of murder.
Then there are those whose ingrained response to any question about law and morality is to shout, “You can’t legislate morality!” But even the most die-hard legal positivist finds it difficult to deny that all laws have a moral dimension. Even something as mundane as traffic regulations possess an underlying moral logic. Traffic laws regulate the free choices of millions of people to drive, because goods such as human life and health are put at unreasonable risk without such laws. When we obey traffic regulations, we implicitly embrace that moral logic and freely choose to act one way rather than another.
All this came to mind as I read through Adrian Vermeule’s recent essay in The Atlantic, “Beyond Originalism,” and various responses to his thesis that it is time for American conservatives to “move on” from Originalist interpretations of the U.S. Constitution and embrace what Professor Vermeule calls “common-good constitutionalism.” For those who have followed Vermeule’s writings over the past four years, this essay contained no surprises, either in content or rhetoric.
In essence, Vermeule wants conservative judges to start behaving in a manner akin to the way that some left-liberal judges behave in practice, and how a significant number of left-liberal legal theorists think judges ought to act: that is, issue rulings that unabashedly promote conventional left-liberal ends in order to realize a left-liberal society.
In Vermeule’s scenario, interpretation of the U.S. Constitution simply becomes a conduit for conservative judges to attain various goals identified by Vermeule. Legal scholars such as Lee Strang, who are decidedly not in the business of promoting left-liberalism or legal positivism, have responded by illustrating the problems associated with Vermeule’s characterization of the written Constitution as “majestic generalities and ambiguities” which Vermeule believes can be skillfully used to realize what I think effectively amounts to a corporatist political and economic order.
Rather than adding to that discussion, I want to direct attention to the normative foundations of Vermeule’s position. This is expressed in one paragraph where Vermeule writes:
Common-good constitutionalism is not legal positivism, meaning that it is not tethered to particular written instruments of civil law or the will of the legislators who created them. Instead it draws upon an immemorial tradition that includes, in addition to positive law, sources such as the ius gentium—the law of nations or the “general law” common to all civilized legal systems—and principles of objective natural morality, including legal morality in the sense used by the American legal theorist Lon Fuller: the inner logic that the activity of law should follow in order to function well as law.
At the core of the “immemorial tradition” to which Vermeule refers is the natural law: the morally objective norms and principles which are accessible to human reason without the aid of revelation, and the practical reasoning that enables us to know how to do good and avoid evil in light of these principles.
Even its most vehement critics generally concede that natural law is central to the formation of Western civilization and has significantly influenced most Western legal traditions. There’s little question that natural law thought, especially as mediated by early-modern Protestant natural law thinkers, was a substantive reference-point for the U.S. Constitution’s drafters. Some scholars, like Paul R. DeHart, have even argued that the unspoken moral theory underlying the U.S. Constitution is largely one of natural law.
As a form of moral reasoning, natural law stands in explicit opposition to skepticism, utilitarianism, and nihilism (of the soft or hard variety) more generally. Moreover, contrary to popular perception, natural law is not an idiosyncratically “Catholic thing.”
While Catholics have been at the forefront of natural law reflection in the past and our own time, it also embraces, to varying degrees, pagans like Aristotle and Cicero, Jewish philosophers such as Maimonides and David Novak, more secular-minded people like Lon Fuller, as well as Protestant minds such as Hugo Grotius and Emer de Vattel. The latter’s Les droit des gens (1758) represents perhaps the most concise articulation of the law of nations to which Vermeule refers as it developed over the preceding seventeen centuries.
However, when we read Vattel—and any number of scholars working in the natural law tradition—we discover two things. First, they affirm that law does have a role in promoting the common good. No less than Thomas Aquinas defined law as “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.”
The second point is that natural law also holds that the public authorities (legislators, judges, etc.) of a given political community (e.g., the United States, the state of Tasmania, the City of Jerusalem, etc.) are responsible for what has been called “the political common good.” This matters, because the primary and immediate object of the political common good is not the all-round moral fulfillment of every member of that community.
That being the case, the political common good limits what the public authorities may do vis-à-vis the promotion of virtue. Discussion of this point and the way that it underscores the indispensability of human free choice for human flourishing cannot, I submit, be found in Vermeule’s essay—perhaps because it would substantially circumscribe judges from acting in ways that Vermeule wants them to act.
The manner in which natural law reasoning limits the scope of positive law to shape the moral culture was addressed in detail by Aquinas. Consider, for example, Aquinas’ definition of the purpose of law in his Summa Theologiae: “For the end of human law is the temporal tranquility of the state, which end law effects by directing external actions, as regards those evils which might disturb the peaceful condition of the state” (ST I-II, q. 98 a.1c).
The words “external actions” tell us that positive law is concerned primarily with the demands of justice and peace. Aquinas spells out the fuller significance of this when he explains:
Because human law is ordained for the civil community, implying mutual duties of man and his fellows: and men are ordained to one another by outward acts, whereby men live in communion with one another. This life in common of man with man pertains to justice, whose proper function consists in directing the human community. Wherefore human law makes precepts only about acts of justice …. (ST I-II q.100 a. 2c)
Then, as if to make sure his readers get the point, Aquinas states: “and if it commands acts of other virtues, this is only in so far as they assume the nature of justice” (ST I-II q.100 a. 2c).
Underlying this claim is Aquinas’ argument that not all acts of virtue have the political common good as their object. The object of many acts of virtue is the private good of individuals, families and other communities. Such acts fall outside the immediate scope of the political common good for which the rulers are responsible.
This is made clearer when Aquinas answers the question, “Whether human law prescribes acts of all the virtues?” His response is as follows:
The species of virtues are distinguished by their objects … Now all the objects of virtues can be referred either to the private good of an individual, or to the common good of the multitude: Thus, matters of fortitude may be achieved either for the safety of the state, or for upholding the rights of a friend, and in like manner with the other virtues. But law … is ordained to the common good. Wherefore there is no virtue whose acts cannot be prescribed by the law. Nevertheless human law does not prescribe concerning all the acts of every virtue: but only in regard to those that are ordainable to the common good—either immediately, as when certain things are done directly for the common good—or mediately, as when a lawgiver prescribes certain things pertaining to good order, whereby the citizens are directed in the upholding of the common good of justice and peace. (ST I-II, q.96 a. 3c)
To be sure, Aquinas does not regard justice and peace as having minimalist content. But to Aquinas’ mind, the law’s proper concern for justice and tranquility does not authorize the state to promote all acts of virtue. In this regard, natural law’s conception of the political common good puts principled constraints on using positive law to shape the free choices and actions of individuals and groups who live within the boundaries of a given political community.
Vermeule’s common-good constitutionalism skips over these important nuances and distinctions. By Vermeule’s account, the common good to be promoted by the law does appear to be the complete fulfillment (in the sense of all-round human flourishing in virtue) of all members of a given political community. That, I’d suggest, is not Aquinas’ position.
I’m all for legal systems grounded in natural law and the ius gentium. They truly do make the difference between civilization and societies built on mere sophisms. That same natural law, however, takes substantive limits to state power and, therefore, liberty very seriously—something which Vermeule does not. To that extent, Vermeule’s common-good constitutionalism puts him at odds with an important dimension of the very tradition which he wants to uphold.
(Photo credit: Wikimedia Commons. CC BY-SA 4.0.)