Introduction

Adrian Vermeule's conceptualization of the nexus between rights and goods endeavors to enrich liberalism while concurrently challenging positivist jurisprudence. The latter fails to understand the role of law as well as the purpose of the State. It also contrasts with the practice of justice, with the way in which concrete legal decisions are taken. Vermeule's approach navigates away from two impasses. Firstly, it avoids a mere procedural understanding of justice, highlighting that the primacy of the just over the good necessitates an acknowledgment that rights find their foundation in the pursuit of specific goods. Secondly, it sidesteps a simplistic return to ancient natural law, emphasizing that applying classical legal conceptions without contextualization and interpretation, particularly rooted in theology or Aristotle, is untenable.

Vermeule emphasizes an internalist conception of the common good, contending that it is within the legal framework that one must discern the expression of the common good. The judge, according to Vermeule, engages in an interpretative process: He evaluates situations with an eye toward justice which always looks to both the legal and the good, as Paul Ricœur says in Oneself as Another (1). This becomes particularly crucial in situations of legal silence, such as moral dilemmas – in which equally important principles conflict with each other –, or when a conflict arises for their application, as in distributive justice issues concerning the most disadvantaged.

In my comment, I will apply to a certain extent Vermeule's reflections to an exploration of the common good in the political realm. They resonate with a hermeneutical approach to establishing the common good for legislative endeavors but hermeneutics allows us, more than Vermeule's theory does, to question some traditional stances and make society evolve. Moreover, the pressing question persists: In societies marked by divisions and opposing notions of the good, how can a collective project be forged that addresses challenges like ecological concerns? My inquiry extends to the question how it is feasible to conceive of the common good in our contemporary context.

Moving on from a discussion of the function of the common good to a questioning of its content, I ask myself what kind of universalism is attached to this notion. The universal ideal that this notion conveys can be considered as a generalization of some particular cultural values – a problem that Vermeule does not face. Moreover, when he suggests to use ecology as a defining element of the common good, he does not delineate what constitutes ecology and what does not.

To address this challenge, I turn to philosophical method and present a phenomenology of our inhabitation of the Earth as a means of elucidating existential structures that provide universalizable guidelines for a normative political theory adaptable to diverse cultural contexts (2). Introducing the notion of the common world, I assert a preference for a negative definition of the common good, which insists upon the global ecological risks we all are confronted with and avoids the criticism that can legitimately be levelled at any attempt to define the common good a priori by generalizing particular cultural values.

The Role of an Internalist Concept of Legal Common Good

Legal positivism leads us to perceive laws as mere external regulations designed to secure the superficial harmony of individual freedoms. Propounding that diverse conceptions of the good necessitate a focus solely on procedures, it advocates an absolute prohibition on delving into human ends and the common good. However, rights find their roots in the goods they safeguard (3), and liberalism, by championing autonomy, inherently subscribes to a particular understanding of human flourishing.

Excluding an inquiry into goods not only precludes the provision of guidelines for decision-making in the face of practices that raise profound moral quandaries and extend beyond the mere coexistence of freedoms. It also engenders conflicts between principles. This is particularly evident in domains such as bioethics, where issues like assisted suicide and germline gene therapies challenge us to confront moral complexities with broader implications for equality and the very fabric of the human species. Relying solely on the principle of autonomy or seeking a diluted "overlapping consensus," as suggested by Rawls in Political Liberalism, fails to address substantial questions regarding the nature of the society we aspire to foster.

However, a simplistic return to tradition, anchored in a fixed conception of the good derived from theological or essentialist notions of human nature, lacks the interpretative dimension emphasized by Adrian Vermeule. In the political arena, adopting a reflective and internalist approach to the common good invokes hermeneutics. This approach implies our evaluating the compatibility or incompatibility of practices or claims with established values that reflect the ethos of our laws and with the moral traits or dispositions necessary for the proper functioning of our institutions. Recognizing that rights are inseparable from the effective morality of a political community or Sittlichkeit, the rules are scrutinized in light of their intended purpose and the conception of the good life they articulate.

While deeply rooted in moral sources and traditions that have embraced diverse cultures, the common good undergoes continual reinterpretation. It is neither definitive nor a priori.

This hermeneutical approach prompts a critical examination of our conceptions of the good and traditions. This reflexive and critical work goes further than Vermeule’s postulate of a legal concept of the common good, because it facilitates the radical transformation of the philosophical or metaphysical conceptions underlying our ethics and our law and determining our social and political organization. This is exemplified in the conscientious scrutiny of legally sanctioned violence against animals, an issue entrenched in tradition yet ripe for ethical reconsideration.

In a nutshell, the internalist approach enables us to discern resources within our traditions for safeguarding nature. It must, however, open the way to a critical examination that allow us to uproot certain traditional presuppositions which explain certain forms of discrimination and injustice. Otherwise no social progress is possible. It also must call for the willingness to engage with alternative cultural perspectives that offer distinct insights into human flourishing.

Finally, the concept of the common good invariably presupposes our participation in a political community. This community transcends a mere aggregation of individuals, embodying a set of principles that articulate a vision of the good life and a flourishing society. Yet, in our societies, a pervasive sense of community often wanes, as individuals prioritize immediate private interests over the well-being of the community and future generations. Furthermore, competing claims from various groups regarding the content of the common good exacerbate the challenge. Could ecology, with its universal implications, serve as a unifying force and define a shared notion of the common good?

A Phenomenology of Our Earthly Condition and Its Normative Implications

Ecology possesses the potential to redefine the common good. However, it is imperative to disentangle it from the concept of the environment because this term signifies that human beings stand apart from nature, which is perceived as a mere reservoir of resources. In this approach, which has long been that of sustainable development, concerns about the environment arise when these resources, deemed essential to our prevailing socio-economic model, become scarce. This atomistic conception of ecology, grounded in an instrumental view of nature, is futile in curbing our predatory practices and mitigating conflicts among individuals and nations vying for access to dwindling resources.

On the contrary, conceiving ecology as the wisdom of our inhabitation of the Earth, a coexistence with both human and other-than-human beings, reveals its inseparability from social justice and the communal sharing of essential resources such as water and air.

This phenomenological perspective necessitates a fundamental shift in our self-perception, consumption patterns, and economic structures. It elucidates our dependence on other living beings, asserting our membership in an earthly community transcending national borders, species, and contemporary temporal confines.

The normative implications of this phenomenology of existence that sheds light upon our terrestrial condition reverberate across ethics, law, politics, and economy. In prevalent social contracts from Hobbes to Rawls, and within both liberalism and republicanism, the State, predicated on the individual's freedom, traditionally pursues security and the reduction of inequalities. However, when the political association is grounded upon an embodied subject who lives from water, food, and air, is intricately connected to others, including animals, has an impact upon them, and whose freedom, health, and peaceful existence hinge on safeguarding the planet, as well as access to sustenance, the protection of the oikos (common home), intergenerational justice, and consideration for animals, both as species and as individuals, emerge as political objectives (4). Integrating these aims into constitutional frameworks can guide cross-cutting policies aligning with these goals.

While the notion of the earthly community implies a shared destiny, it is prudent to emphasize a negative conception of the common good. Focusing on the potential peril of a collective shipwreck, akin to global warming but also to a nuclear apocalypse, underscores humanity's vulnerability as a collective entity. This negative conception can serve as a potent catalyst for decisive action, tempering competitive and predatory instincts, and mitigating the risks of conflict and war exacerbated by resource scarcity.

In an era where the specter of collapse underscores our fragility and questions erstwhile certainties, introducing the concept of a common world becomes paramount. However, this concept of a common world is not derived from universally deemed conceptions of the good. Arising from the phenomenological description of our generated and terrestrial condition, it is preferable to the overarching introduction of a positive notion of the common good, which tends to generalize culturally specific values.

The Common World and The Common Good

Distinguishing the concept of a common world from that of the common good is essential. Drawing upon Hannah Arendt, this notion undergoes nuanced modification. Arendt, in The Human Condition, posits that upon birth, individuals are embraced by a world that surpasses their own temporal and physical existence (5). This common world spans generations, creating a lineage that extends beyond one's ancestors, forming an umbilical connection between the living, as articulated by Paul Ricœur (6). With the profound impact of our lifestyles and technologies on the future, we bear within ourselves the potentiality of future generations. This common world, to my mind, encompasses also natural heritage and other living beings. It actually transcends individuality while remaining accessible —a transcendence within immanence, as Arendt puts it. This is at the core of what I call “transdescendence” in Éthique de la consideration (7).

This is not a contemplation of the supernatural, but the experience of a world that surpasses me both upstream and downstream and is attained by deepening my self-knowledge as a carnal, begotten, vulnerable, and mortal being. The awareness of my belonging to a common world then becomes self-evident, expanding my subjectivity and fostering a palpable connection to others, both human and other-than-human.

This connection also gives rise to affects such as gratitude, compassion, and the desire to transmit a habitable world. In a word, it leads to consideration.

The latter is not merely the condition enabling the blossoming of virtues and liberating us from a relationship to the world and others structured by domination, predation, manipulation, and reification. It actually provides a criterion for individual and collective decisions, urging the avoidance of practices that could jeopardize the common world while fostering conditions for its preservation and renewal. Such preservation is intrinsically linked to safeguarding the potentiality of freedom and democracy, given that democracy thrives on plurality arising from the birth of new beings capable of creating enduring novelties, echoing Arendt's insights.

While acknowledging the possibility of positive communities based on shared aspirations, it is crucial to define them without grounding them in values, which are inherently relative and often lead to a misleading universalism disguising these values as general principles, perpetuating cultural subjugation.

This is the rationale behind my adherence to the phenomenological method, enabling the extraction of existential structures which are universalizable: They are not values nor moral judgments, but existentials which are derived from the phenomenological description of our existence and inhabitation of the Earth and can be interpretable across diverse cultures. While various aspects of our lives are socially constructed, the human condition universally involves basic needs such as eating, drinking, breathing, dwelling, being born and being in need of care and education, and dying. A phenomenology of corporeality and of our inhabitation of the Earth, starting from the materiality of our existence and vulnerability, and shedding light upon our terrestrial condition and our dependence upon nature and other living beings, has normative implications that imply a reorientation of the economy which must be placed at the service of life and not unlimited growth. It transforms our conception of justice from within, yet its existential foundations are adaptable to diverse cultural contexts.

Negative Responsibility

This notion of the common world aligns with a negative conception of the common good, or at the very least, encourages prudence in its application – an inherent challenge that underscores the importance of a reflection emphasizing negative responsibility.

This concept of negative responsibility, originating from Czech philosopher Jan Patočka, emerges not from a settled subject but from one who has grappled with the loss of meaning, returning to a state of bare life and pure freedom – an existence without foundations, which takes the measure of our radical dereliction, of the contingency of meaning, and of our need to establish it in the right way. (8) Persecution, threats to his life and the situation of dissidence in which he finds himself do not lead to nihilism, to the abandonment of all meaning, but the loss of established meaning urges to look for it without being satisfied with the solutions generally put forward and by taking on board what is the “raison d'être” of politics, i.e. the response to vulnerability and to justice. Negative responsibility culminates in commitment and solidarity. The latter is not based on established certainties but on the shared recognition of vulnerability, finitude, and fallibility. It emerges from an experience of collapse, where individuals seek meaning collectively, always a posteriori and continuously anew, devoid of dogmatism.

If there is a concept of positive community, if we can agree without deluding ourselves, it may arise from this experience of collapse, and the acknowledgment of our limits and precarity. Otherwise, there is a risk that our notions of the common good may become divisive. It is not a skepticism about the good, and I share Adrian’s skepticism towards those skeptical of the good. However, domination remains a pervasive force, making it crucial to prevent undesired outcomes.

1. P. Ricoeur, Oneself as Another, transl. by K. Blamey, University Chicago Press, 1995.

2. C. Pelluchon, Nourishment. A Philosophy of the Political Body, transl. by J. E. Smith, Bloomsbury, 2019. See also Les Lumières à l’âge du vivant, Seuil, 2021, 2022, German transl. by Y. Bischoff, Das Zeitalter des Lebendigen. Eine neue Philosophie der Aufklärung, WBG, 2021.

3. M. Sandel, Liberalism and the Limits of Justice, Cambridge University Press, 1982.

4. See the second part of Nourishment, “To Institute a Common world”. See also C. Pelluchon, Manifeste animaliste. Politiser la cause animale, Alma, 2017, Rivages, 2021, third part. German transl. by M. Bishoff, Manifest für die Tiere, Beck, 2020.

5. H. Arendt, The Human Condition, The University of Chicago Press, 2018.

6. P. Ricœur, Freedom and Nature. The Voluntary and the Unvoluntary, transl. V. Kohak, Northwestern University Press, 1996.

7. C. Pelluchon, Éthique de la considération, Seuil, 2018, 2021. German transl. by H. Jatho, Ethik der Wertschätzung: Tugenden für eine ungewisse Welt, WBG, 2019.

8. Jan Patočka, Heretical Essays in The Philosophy of History, transl. under the direction of J. Dodd, Court Publishing Co, 1999.