Thank you for having me, and I look forward to the thoughts of my esteemed fellow panelists. I’ll talk this evening about common good constitutionalism — which is just a translation or adaptation of the classical legal tradition to our current world. To a limited degree I’ll have to refer to legal principles and debates within the Anglosphere, but I hope you won’t take that as a parochialism; indeed my point and project is exactly the opposite. The project is an effort to connect or reconnect American constitutional law with the whole broad historical mainstream of the European legal tradition, the ius commune, including the Anglo-American common law as a local variant - a view of the common law increasingly embraced by legal historians.

Of course that mainstream is a broad river with many tributaries and complicated branches. Still, there is a larger continuity that connects the tradition of the ius commune to the new world. Thus the constructive effort behind the recent recovery or revival of classical legal theory is to in some way re-enrich legal theory - an effort to make it broader, more continuous with our history before the advent of legal positivism and with the legal approaches of other nations and with the international community of law, in a sense more inclusive. The project thus has both a general part and a particular part – a duality that is itself built into the classical legal framework. It speaks both to general principles of common good constitutionalism and to the specific instantiation of those principles in the American constitutional order. These two are detachable, in the sense that one can subscribe to the general part, the methodological framework, without necessarily subscribing to my particular interpretations, which as I will explain are an exercise in prudential judgment and practical reasoning within that framework.

To be very clear at the outset, a simple return to the classical legal tradition and its particular legal rules is neither desirable nor even possible. Even were that feasible, which it is not, one would risk simply recreating the conditions that caused the present to come into being. But the core theoretical insights and jurisprudential principles of the classical legal tradition can be recovered, adapted and translated into our world, so as to yield a better interpretation of the past and present of our operative constitutional order. Those insights are scarcely so remote as to preclude recovery; in fact, they are close at hand, if obscured from our current vision. Key elements of the classical view of law remain vital within our law, although not always recognized as such.

It is a feature of the classical law that the possibility of and resources for such a recovery is itself built into the tradition, because the tradition itself claims to distinguish what is universal and enduring from what is mutable, local and particular. The major texts of the tradition themselves begin by pointing out that the law has both a general or universal part common to all polities, the natural law and law of nations, and a particular part, the positive civil law, which varies across polities. As Gaius put it, “all peoples who are governed under laws and customs observe in part their own special law and in part a law common to all men. Now that law which each nation has set up as a law unto itself is special to that particular civitas and is called jus civile, civil law, as being that which is proper to the particular civil society (civitas). By contrast, that law which natural reason has established among all human beings is among all observed in equal measure and is called jus gentium, as being the law which all nations observe.”

And the tradition itself includes previous eras of translation and adaptation. To mention only one example, the great 14th century jurist Baldus de Ubaldis adapted the principles of the Corpus Juris Civilis to the circumstances of the independent city-state republics of northern Italy. In so doing he did not attempt to directly transpose to his own time all the particular rules of the positive civil law of republican or imperial Rome — an absurd program, akin to saying that classical lawyers today should wear togas — and a program that the classical law emphatically does not entail or require. But Baldus translated and developed the general principles of the law for his very different circumstances, resulting in an approach that seamlessly combines what is enduring with what is local and contingent. The watchword should thus be non nova, sed nove — “not a new thing, but in a new way.”

The common good as a legal concept

So much for preliminary generalities. Let me now focus on a simple point: “The common good” in the legal sense is not to be seen, at least not solely, as an external concept, that the analyst uses to justify or evaluate the legal system, nor even solely as a jurisprudential concept that the analyst argues inheres in the nature of law. Rather, it is a working legal concept used and interpreted by actors within the system. And it is an absolutely ubiquitous concept. Indeed, it is often literally embodied in the language of enacted provisions and judicial doctrines. Lawyers have constantly to construe provisions or work with doctrines that refer in terms to “the common good,” “the public interest,” “the general welfare,” or similar terms. (I follow the comparativist Elisabeth Zoller’s analysis of the concept of res publica in treating these versions of the common good as relatives and cognates of one another).

At the level of constitutional provisions, the Massachusetts Constitution of 1780 is the world’s oldest functioning written constitution and was often cited as a model for the federal Constitution of the United States. And the Massachusetts Constitution specifies both that “all shall be governed by certain laws for the common good,” and that “[g]overnment is instituted for the common good, for the protection, safety, prosperity, and happiness of the people, and not for the profit, honor, or private interest of any one man, family, or class of men.”

Following suit, the United States’ federal Constitution of 1789 both specifies in its preamble that one of the master aims of the Constitution is to “promote the general Welfare,” and grants Congress the power “To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” The general welfare language in the U.S. Constitution influenced provisions around the world. It has well-known connections to the famous Polish constitution of 3 May 1791, often called the first written constitution in Europe, which specifies that it is made, among other aims, “for the general welfare.” These and related provisions also had a profound influence on 19th-century constitution-making in Latin America and on pan-American framework treaties and instruments to which the United States is a signatory (whether or not the Senate has ratified them). Thus the preamble of the Constitution of Argentina specifies that one of the purposes of the federal or national government is to “promote the general welfare,” and the Argentine Supreme Court once held that the General Welfare clause of the Argentine Constitution confers on the federal government a general source of authority for national legislation.

International treaty or convention provisions with quasi-constitutional stature display similar features. The American Convention on Human Rights specifies that “The rights of each person are limited by the rights of others, by the safety of all, and by the just demands of the common good.” Perhaps more famously, the European Convention on Human Rights contains many provisions of this sort. Merely one example is Article 10.2 on freedom of expression: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals…” and for other purposes. This example is particularly well-drafted because it emphasizes that duties and responsibilities for the common good are themselves built in to the exercise of freedoms, a point to which I will return at the end.

These provisions, doctrines and principles draw upon even more ancient sources, going right back to the origins of European law, sources such as the Etymologies of Isidore of Seville in the 7th century, which says that laws properly so-called are formulated “for no private benefit, but for the common well being (communis utilitas) of the citizens.” It is probably a fruitless exercise to try to locate the ultimate source of such ideas, like a deranged explorer searching for the origin of the Nile. But one location that must be mentioned here, a profoundly influential source, is Papinian’s injunction, later recorded in the opening book of the Digest of Justinian, that the ground for the validity of the ius honorarium, the legal principles and doctrines developed by magistrates called praetors, is that it serves the public interest, the utilitatem publicam. As Papinian puts it, “praetorian law is that which in the public interest the praetors have introduced in aid or supplementation or correction of the jus civile.” And this basic approach becomes a standard too for civilian lawyers, not just in the Republic but throughout the Principate, the Dominate, and the medieval ius commune and into the Ango-American law.

The examples are quotidian and on the ground level of the law. Suppose ship cargo has to be jettisoned in a storm to save the ship—where should the loss fall? The Digest tells us that “[t]he Rhodian law [of the sea] provides that if cargo has been jettisoned in order to lighten a ship, the sacrifice for the common good must be made good by common contribution.” Is a sentence of punishment suspended pending appeal? Generally yes, except as to “persons whom it is in the public interest to punish immediately on condemnation, such as notorious brigands or stirrers of sedition or leaders of gangs.” So too, the praetor will, in the public interest, give fourfold damages against those who engage in looting after a fire or natural disaster. And so forth. The jurists spend a substantial chunk of their time making the common good concrete, workable, and sensible.

Construing legal provisions or working with legal doctrines of the sort I illustrated is not like doing straight philosophy or theology. That is, the provisions or doctrines are not directly open to philosophical debates over the common good in the way that certain styles of architecture are directly open to the outside air. Rather they are partially independent of underlying philosophical concepts, insofar as law is a distinctive department of political morality, the art or craft of practical reasoning about legal justice that takes into account distinctive considerations arising from the institutional embodiment of the legal system. Hence the working lawyer or judge cannot simply recline back into some sort of general skepticism about the common good or its determinacy, intoning “who decides?” For legal purposes, the institutions of law, including the community of jurists, decide. Put differently, the working lawyer or judge, in contrast to the philosopher or academic legal theorist, cannot wave a refined hand in the air and say “I’m not sure what the common good means — let the seminar go on.” A provision or doctrine that says, in terms, “the common good” or “public interest” or “general welfare,” has to be given some interpretation or other by the working lawyer and especially by the judge. Now, one way the lawyer or judge can lighten his own burdens is to interpret the provision as commanding some version of a margin of state discretion or a margin of appreciation within a reasonable range, and this is an ordinary way law works. But that too is a legal interpretation, arrived at through practical reasoning in a larger institutional order. It is not philosophy from the bench.

Interpretation and the common good

So if the lawyer’s work constantly requires recourse to the common good, not only as a methodological concept but because enacted texts and legal doctrines themselves embody that concept, how should the common good be approached? What exactly does the classical tradition hold about legal interpretation and adjudication? The centerpiece of the classical legal tradition is that law should be seen as a reasoned ordering to the common good, the intensely practical ars boni et aequi or “art of goodness and fairness,” as the Roman jurist Ulpian put it – an act of purposive and reasoned governance that promotes the good of law’s subjects as members of a flourishing political community, and ultimately as members of the community of peoples and nations. All officials have a duty, and corresponding authority, to promote the common good – albeit in a manner consistent with the requirements of their particular roles. This classical conception embodies the best of our own tradition, the union of well-ordered reason with public authority, of reason with fiat.

Classical law treats enacted texts and intermediate juristic principles as determinations - the process of giving more specific content to a general principle drawn from a higher source of law, making it concrete in application to particular local circumstances or problems, drawing upon the virtue that is called “regnative prudence.” This is the prudential judgment, oriented toward legal justice, of public authorities who are charged with the care of the res publica, according to the requirements of their different roles.

The need for determination arises when principles of legal justice are general and thus do not specifically dictate particular legal rules, or when those principles seem to conflict and must be mutually harmonized. Putting aside the duty to avoid intrinsic evils, there are typically multiple ways to determine the principles while remaining within the boundaries of the basic charge to promote the common good – the basis of public authority. In Aquinas’ analogy, an architect who is given a general commission to build a hospital for a city possesses a kind of structured discretion. The purpose or end of the commission shapes and constrains the architect’s choices while not fully determining them; a good hospital may take a number of forms, although there are some forms it cannot take. General principles of law might, for example, say that, at some point, peace and order require that potential defendants should have repose from the risk of being sued; it would then be up to the civil law in such an instance to determine a specific statute of limitations and to resolve the many questions that flow from it.

Where at all possible, then, the classical lawyer reads or interprets the determined law of a particular jurisdiction (the ius civile) in light of the higher sources of law that the civil law determines — the ius gentium (the law of nations or peoples) and the ius naturale (natural law). Put differently, the classical tradition distinguishes, as many European languages still do, between two senses of “law,” lex and ius. (English, to its misfortune, has no stable version of this distinction and instead uses “law” and “right(s)” in confusing ways.) Lex is the enacted positive law, such as a statute. Ius is the overall body of law generally, including and subsuming lex but transcending it, and containing general principles of jurisprudence and legal justice. Thus lex is a determination of ius but does not exhaust its content, and should if at all possible be interpreted to harmonize with it.

Here it is easy to misunderstand the place of positive law in the classical tradition. The right and duty of the public authority to determine or specify the content of the positive law imply that the judges or other officials who interpret law at the point of application are duty-bound to respect the text of the law, at least presumptively. But this is a kind of textualism justified by reference to political morality, the rational ordering of rules to the common good by the public authority. Thus positive enacted texts are always read against the backdrop of, and to harmonize with, the broader legal background of natural law, general and traditional legal principles, and the law of nations. The classical law incorporates positive law in a broader framework of legality, but rejects any commitment to positivism in a jurisprudential sense.

Thus in hard cases, where positive lex is ambiguous, vague, general, internally conflicted, seemingly conflicts with enduring background commitments of the law generally (ius), or is otherwise under-determined, those sources can and should be drawn upon to determine legal meaning. Indeed, a key element of the classical view is that those background principles always already inform and permeate and inhere even in the semantic meaning of lex, because lex is itself a determination or concretization of ius, inherits the nature and boundaries of practical reason inherent in ius, and is therefore interpreted to harmonize with ius. On the classical view, ius (including ius naturale) is promulgated just as much as lex.

On this view, an ordination of reason is not merely an ordination that is made because there are good second-order reasons (like coordination) to make an ordination, resulting in a reason-independent or reason-excluding ordination of fiat, full stop. Instead an ordination of reason itself inextricably incorporates reason into the semantic meaning of law’s terms; reason inheres even in lex. As Richard Helmholz puts it in his wonderful book on Natural Law in Court, “[decisions of the ius commune] illustrate what might be called the ‘internalist’ role played by the law of nature. It was used to discover the meaning of existing laws [and] to help supply the answer to a legal question where the import of positive law was uncertain ….”

The common good

So far I have not directly addressed the nature and content of the common good. What then does it entail for legal purposes? At the highest level of abstraction, the common good is, for the purposes of the civil constitutional lawyer, the flourishing of a well-ordered political community as such. The common good is unitary and indivisible, shared without being diminished. It is not an aggregation of individual utilities. In its temporal aspect it represents the highest felicity or happiness of the whole political community, which is also the highest good of the individuals comprising that community. No man is an island, and the goods of individual and family life cannot be enjoyed in a decaying and chaotic polity. As Aquinas puts it, “The individual good is impossible without the common good of the family, state, or kingdom. Hence Valerius Maximus says of the ancient Romans that "they would rather be poor in a rich empire than rich in a poor empire.”

To give this more specific content, the tradition looks to the precepts of legal justice in the classical law – Ulpian’s famous trio: Iuris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere — to live honorably, to harm no one, and to give each one what is due to him in justice. An expansion or development of these precepts occurs in the tradition, which articulates the central goods at which constitutionalism should aim. These goods include, in a famous trinity of the ius commune, peace, justice, and abundance (pax, iustitia, and copia), which has many direct descendants in modern law — consider the phrase “peace, order and good government” that occurs in anglophone legislation, such as the British North America Act. I extrapolate these principles to modern conditions to include various forms of health, safety, economic security and environmental stewardship; indeed I strongly emphasize throughout that the environment is a paradigmatic common good in the secular order. Here the tradition draws upon principles of solidarity and subsidiarity, which guide and structure the pursuit of the common good, and which I assume need no further explication here.

Here too, this approach views the common good in a distinctively legal rather than philosophical register. Philosophers and theologians debate so-called distinctive, aggregative, and instrumental conceptions of the common good, among others. I happen to believe that the true conception is the classical or distinctive conception of the common good, and also think it is the conception that unites Aristotle, Augustine and Aquinas. But very little in the quotidian work of law generally turns on contested philosophical refinements of the common good at the outer boundaries of debate. For concrete legal purposes one usually does not have to choose between high-level, contested theoretical conceptions of the common good, because the differences among these conceptions often make little difference. The rival conceptions can travel a long way together, and this helps to vitiate some of the arguments both of the legal philosopher who is eager to plunge into recondite conceptual refinements, and also of the skeptic about the common good or natural law. Instead the quotidian activity of practical reasoning about the legal common good serves concrete ends, on which different speculative conceptions of the common good usually converge in practice. It condemns the abuse of official power for private purposes like material self-interest or partisan advantage; it underwrites equitable and public-regarding interpretations of semantic meaning; and it helps to prevent a kind of pointless and fetishistic legal formalism that benefits few and harms all.

Rights

Let me, finally, say a few words about rights in order to forestall any misunderstandings. The common good is not the good of the “collective” as opposed to that of individuals. Libertarians, usually implicitly, read “the common good” as “the good of the collective” or, even worse, “the good of the state apparatus” and then oppose that to the good of individuals. In the classical tradition, however, “rights” very much exist, yet are justified in a different way — different than the essentially individualist, autonomy-based, and libertarian fashion familiar today. Instead “rights” are recognized insofar as doing so contributes to the common good, which is thus built into rights from the ground up. Rights are objective corollaries of duties, duties of legal justice, which is the constant aim of giving every person their due. Ius is what is due to every person, and in this sense, but only this sense, includes rights. As John Finnis says, although sometimes judgments talk as though the common good is an override on rights, the classical conception which holds that the common good is built inside rights is both more attractive and can easily be read to be compatible with the relevant provisions (as in my earlier example of Article 10.2 of the Convention). To quote Finnis: “when I am arrested in my cellar for making drugs [or] bombs … the unwelcome irruption is not merely into my privacy but also into my exercise of my right. Would it not be more accurate to say that in such use of my cellar, I take myself outside the true ambit of my right? The limitations indicated by the Convention's references to public health, prevention of crime, and so on, are limitations which specify the limits of my right; they are in fact a part—or at least a compendious reference to an intrinsic part—of the right's own definition.” It is all one process, a process that occurs within law and within legal interpretation, involving — from the classical perspective — the harmonization of two types of law: the harmonization of positive texts (lex) with background principles of legal justice (ius), not as a way of overriding lex, but as a way of understanding and interpreting lex in light of the larger commitments of the legal order.