Democracy, Disagreement, and Authority: A Response to the Symposium on Common Good Constitutionalism

Abstract

In this response to a recent symposium on Common Good Constitutionalism in the American Journal of Jurisprudence, I principally take up themes related to democracy, disagreement, pluralism, and authority. I emphasize that the classical legal tradition is teleological, oriented to performance standards rather than design standards. Thus it does not attempt to prescribe an identical set of constitutional and institutional arrangements for all polities everywhere, but asks whether constitutional arrangements are ordered to the common good and (thus) compatible with natural and divine law. Subject to those conditions, political authority is natural, inevitable, inescapable, and good. The possibility of social and political disagreement is just a precondition for all law, not an objection to the classical legal framework. None of this entails judicial supremacism in any form, which the classical legal tradition squarely rejects.

It is customary to begin with thanks to the organizers and editors of the symposium, and to the authors, who, in all but one case, engaged constructively with Common Good Constitutionalism (hereinafter “CGC”).¹ I do thank them, not least for the variety and range of the contributions they have offered. That variety enables me to touch on many issues central to the complex and multi-faceted recent debates over the resurgence of classical legal theory.

If a major theme emerges in my response, stimulated by the papers, it is that liberal legal theory suffers from a crippling suspicion of authority and an overemphasis on the possibility of disagreement. From the classical legal standpoint, disagreement as such is not a unique problem for this or that account of constitutionalism or of judicial review; pace some of the commentators, it is therefore not a unique problem for classical constitutionalism. Rather disagreement is the eternal and ubiquitous background condition for the problem of law itself, at least in any constitutional order not based on unanimity, which means every constitutional order that has actually existed in reality or will ever exist. Law has both a facilitative dimension that enables agreement and also a distributive and coercive dimension that begins where agreement ends—where intractable differences of belief or conflicts of interest arise and require law to decide, authoritatively, how to render to each what is due to him, the classical definition of legal justice. Classical legal theory has endured over millennia, and been repeatedly revived when temporarily abandoned (even if only abandoned at the level of official theory; I claim that it is ubiquitous in practice, that the practice of judges is often better than their theory), because classical legal theory identifies general principles for the ordering of legal authority that can apply over a range of institutional forms and political systems, and that harmonize a wider palette of legal sources than the other approaches currently on offer.² It thus provides a flexible framework for evaluating and tempering authority and for addressing, incorporating and civilizing disagreement.

I. Ekins and Democracy

I begin with Richard Ekins’s engaging paper,³ because the ambition and verve of his style makes it easy to indicate where I agree and disagree, because his paper allows me to offer some points that apply to a number of the other papers, and because he presents the largest-scale thoughts about constitutionalism to be found among these responses. Before addressing the core of Ekins’s argument, which centers on the role of democracy and legislative authority in classical legal theory, let me briskly clear away some underbrush—some points on which, I believe, Ekins and I largely agree, but as to which that agreement seems to have been clouded by apparent misunderstanding or miscommunication.

First, Ekins (along with another commentator, Wilkinson, whose effort I will treat independently) seems to over-read CGC as adopting Dworkin’s constitutional and indeed political theory wholesale—a reading expressed by repeated statements that CGC “embraces Dworkin” or “adopts Dworkin,” and repeated variants thereof,⁴ and further implied by Ekins’s occasionally indiscriminate citation to views held by Dworkin⁵ that I myself nowhere cite, adopt or endorse. I stare in vain at the text of the book for any such wholesale adoption. What CGC does is to state, explicitly, that parts of Dworkin are useful only at the retail level, and even then only for limited purposes, especially for negative and critical purposes.⁶ I find especially useful Dworkin’s critique of legal positivism and his critique of American originalism as unable, not merely in practice but also in principle, to solve the problem of the level of generality at which the original understanding is defined—a critique that has been richly illustrated in recent caselaw.⁷ I also believe that his general account of legal practice as having dimensions of both fit and justification captures the approach of classical legal theory.⁸ Beyond that, however, I reject much of Dworkin, especially his egalitarian version of liberal political theory. The explicit claim of CGC is that the useful elements of Dworkin’s legal theory are severable or detachable from his other commitments.⁹ That view may be right or may be wrong, but Ekins nowhere argues that CGC is wrong to think that this detachability obtains, as he would have to in order to hang the whole of Dworkin’s corpus onto CGC.

It is with respect to the elements of Dworkin I do find useful, especially his account of adjudication and legal practice, that he has sometimes been called a natural lawyer or classical lawyer. Rather than belabor the point, let me simply quote John Finnis’s explication:

Natural law theory of law thus finds itself, in this respect, approximated to by Ronald Dworkin’s account of law and adjudication, not only in frontier situations like Nuremberg but also in the day-to-day working of a sophisticated legal system. Normal adjudication and judicial reasoning has two dimensions or criteria for distinguishing correctness from incorrectness in judgments. One dimension comprises social-fact sources (statutes, precedents, practice, etc.), called by Dworkin “legal materials.” The other dimension comprises moral standards, presumptively those prevalent in the judge’s community but in the last analysis just those standards that the judge can accept as in truth morally sound. An interpretation of our law which is morally sounder will be legally correct even if it fits the legal materials less closely than alternative interpretations, provided that it fits those social-fact sources “enough.” The moral standards thus applied, which Dworkin (in line with natural law theory) treats as capable of being morally objective and true, thus function as a direct source of law (or justification for judicial decision) and, in a certain sense, as already law.¹⁰

It is this, and only this (including Dworkin’s critiques of originalism and positivism, which in my view fall out of the foregoing) which CGC draws upon, and which it takes to be detachable from Dworkin’s substantive commitments at the level of political theory.

Second, I believe that Ekins goes wrong in his treatment of “originalism,” but for an entirely forgivable reason: the intellectual and professional distance of the New Zealand and Commonwealth lawyer from originalism in its American sense—distinctively imperialist, hypertrophied, and, in my view, pathological. As Conor Casey and I have argued elsewhere,¹¹ and as CGC itself points out,¹² there is and always has been a chastened sense of “originalism” that is common ground across a very wide range of legal systems, both common-law and civilian systems, and is indeed a centerpiece of classical legal interpretation. This chastened sense holds that the aims of and background understandings held by the lawmaker, and embodied in positive texts for given ends, are partly constitutive of the force and legal meaning of the law. To use Dworkin’s own example, if we want to understand what Shakespeare hoped to achieve by referring to a “hawk,”¹³ or (another common example) what framers and ratifies of the American (written) Constitution hoped to achieve by guaranteeing a “republican form of government,”¹⁴ then we had better understand those words in their original sense. This form of originalism is common to, say, modern European jurists who would vehemently reject “originalism” in its distinctive American sense.¹⁵

The difference between the two senses is that the chastened sense of “originalism” tries to reconstruct the rational point of the lawmaker’s action. As Xavier Ménard puts it, drawing on Ekins’s own work:

That the legislative act is… a reasoned activity, and that the object of legislation is to secure the common good, is the central case of the legislature. It follows from this teleological understanding of the legislative act, and of the nature of law generally, that the point of constitutional and statutory interpretation is to understand the lawmaker’s reasons for acting…. To interpret is to inquire about the reason the legislature chose the specific means, the specific determinatio, it adopted in pursuit of the ultimate common good…. To conceptualize a Constitution as an act of reason means that the object of interpretation cannot be reduced solely to the text itself—we must look to what the lawmaker did, not merely what it said. Because the object of interpretation really is the full legislative act as “grounded in an intelligible chain of reasoning,” the goal “is not to interpret words but to interpret language use.” When conducting constitutional interpretation, therefore, the judge must understand and give effect to the specific means chosen by the constituent body, the determinatio, that is clarified through a genuine reflection on the common good.¹⁶

On this view, interpretation of the lawmaker’s reasons for acting always occurs within and under the horizon of presumptions that attribute to the lawmaker a reasoned execution of the lawmaking office. These presumptions are always partly idealizing, and thus may if we like be called “legal fictions,” so long as we understand that public law is everywhere built upon fictions, in the sense of normatively-inspired regulative ideals about the office and activity of the lawmaker. We do not lightly assume that the lawmaker was joking, or engaged in self-dealing, or sadistic cruelty. Indeed, so deeply embedded is the legal presumption that the lawmaker aims to promote the common good that such possibilities rarely even occur to us. Ironically, the ur-champion of originalism and textualism, Justice Antonin Scalia, was also a champion of classically-rooted legal maxims and presumptions in general, and in particular of the presumption that all legislation is to be read, by a normatively-inspired legal fiction, as an attempt to promote the public interest.¹⁷ Scalia’s textualism, at least until late in his career, was far more classically-inflected than that of his successors, epigones and self-described disciples.

I take this view of a chastened version of textualism and originalism, folded within the larger structure of classical legality, to be quite close to, if not identical with, Ekins’s own view, although Ekins does not put his view in classical terms.¹⁸ But this is not the version of “originalism” that CGC criticizes, nor is it the version of originalism that Dworkin attacks. When Ekins writes that “[t]he ferocity of Vermeule’s critique of originalism waxes and wanes. One could reframe part (not all) of the argument as a defense of a better originalism,”¹⁹ he is conflating originalism in the chastened sense I have explained with originalism in the imperial, elaborate and indeed increasingly byzantine American sense. Under modern American originalism-textualism, any inquiry into the rational point the lawmaker had in view is officially eschewed—although it often occurs anyway, if only implicitly; self-described “originalist” judges in America often judge more classically than their official principles permit, as CGC emphasizes and as a sitting appellate judge, Paul Matey, has explained.²⁰ On the official originalist theory, however, the law just is the ordinary meaning of the text at the time of enactment, as the Bostock case proclaimed²¹ and as the Court has since reaffirmed.²² And the ordinary meaning is emphatically not taken to include any teleological understanding of the rational point or aim of the lawmaker’s determination. The consequence of this difference between the two senses is that interpretive presumptions and maxims advanced by classical lawyers, and indeed by modern civilian lawyers, are routinely coded as “intentionalist” or “purposivist” by American originalist-textualists, and thus condemned.

In an irenic spirit, let me suggest finally that part of Ekins’s affinity for “originalism” stems from a difference in institutions between, on one hand, Commonwealth legal orders, which tend to feature classical or modified Westminster-style parliamentary systems with or without a full codified written Constitution, and on the other hand the United States system, which features a less majoritarian and responsive legislature and a written Constitution that is one of the most difficult to amend in the whole world (and hence one of the oldest). The consequence of these differences is that at both the statutory and constitutional level, controlling legal texts are more easily amended in Commonwealth systems, and originalism is more likely to converge with the current considered views of lawmakers and democratic majorities. In the United States, by contrast, especially at the constitutional level, texts are updated less frequently, and originalism is far more likely to diverge sharply from anything that anyone in office at a given time understands or believes. Thus American-style hypertrophied originalism becomes far more demanding for judges, who must think themselves back into the legal worldviews of remote eras. As Richard Posner suggested years ago, legal theorists often implicitly speak of their own systems, the one with which they are most familiar, when offering putatively general legal propositions,²³ and I suspect that Ekins’s one-and-a half cheers for originalism stem from institutional features of the legal system(s) within which he works.

Now to more substantive questions. We have to keep separate two distinct issues: (1) how a written Constitution (or for that matter statutes or treaties with constitutional stature) ought to be interpreted; (2) what the scope and method of constitutional judicial review ought to be. Ekins briefly notes, with a reference to James Bradley Thayer’s deferential account of judicial review, that the two issues are conceptually distinct and can be made institutionally distinct in any given constitutional order.²⁴ But this is by no means an afterthought in CGC; it is a centerpiece of the book. CGC defends, as a macro-determination central to the classical conception of the American constitutional order, a framework for judicial review under which

(1) the public authority acting within its constitutional sphere of competence (2) may act on a reasonable conception of the common good (defined in the police power caselaw by reference to the legitimate ends of government—health, safety, and morals) by (3) making reasonable, nonarbitrary determinations about the means to promote its stated public purposes. When it does so, then (4) judges must defer.²⁵

A criticism of the classical legal framework on the ground that it urges “judicial activism,” “judicial supremacy” or any cognates thereof is therefore a criticism of a view I not only do not hold, but rejected at some length.²⁶ To be clear, I am somewhat unsure whether Ekins means to suggest so;²⁷ if he does not, others have.

Ekins’s largest and clearest commitment is to “democracy,” and he worries throughout that CGC does not commit to the primacy of democracy or to the primacy of legislative authority under representative democracy. I fear however that Ekins equivocates here in two ways: (1) between popular sovereignty as the foundation of the constitutional system, and representative democracy as the primary method of making decisions within the constitutional system; and (2) between a basic sense of “democracy” as public participation in politics, a commitment that can be embodied in any number of institutional forms (such as, in many classical democracies, sortition for public offices), and on the other hand a different sense of “democracy”: a very particular and, in historical perspective, recently developed institutional form, involving universal franchise and mass elections for national-level legislatures or other political offices. Disentangling these two distinctions shows what in Ekins’ concern for democracy I cheerfully agree with, and what I think unfounded.

Let me begin with some basics about democracy and the classical legal tradition. The tradition is a framework for law and constitutionalism, not a blueprint of prescriptions for this or that particular constitutional order or set of particular institutional arrangements.²⁸ Different polities with different histories, traditions, and cultures adopt different determinations of the political order, subject to the master principles that law and constitutionalism be ordered to the common good of the polity as a whole, and that law properly so-called should conform and should where possible be interpreted to conform to background traditional principles of legal justice, including natural law, which are themselves binding and internal to the law. Within these constraints, the classical legal framework is agnostic; it can be and has been applied to and within empires, national monarchies, and republican or aristocratic city-states, with the latter varying on the form and quantity of public participation they allowed.

To use an analogy from the theory of regulation, the classical legal tradition urges performance standards, not design standards. (Automobile regulation, for example, might adopt either approach, setting a performance standard that all cars, however designed, must meet, or instead prescribing particular designs. Historically the National Highway Traffic Safety Administration has favored performance standards, not design standards.²⁹) Whereas a design standard would directly prescribe the institutional forms applicable to constitutional orders, such as “democracy,” a performance standard sets a benchmark of adequate performance and then evaluates legal systems on their meeting, or not meeting, the benchmark, regardless of institutional forms. Law that is not rationally ordered to the common good is a corruption or perversion of law (failing to meet the benchmark); so too, a constitutional order in which the ruling authority acts strictly for private advantage is tyrannical. But in principle there are multiple ways, multiple constitutional “designs,” that might satisfy the benchmark standard; which is best for a given polity depends upon history, culture and local conditions. By contrast, liberal and liberal-democratic constitutional theory often urges design standards that it takes to be applicable to all (acceptable) polities. The latter approach, to which the papers by Ekins, Barber, and Wilkinson are committed with varying degrees of explicitness, is more information-demanding at the stage of regulatory design, although less information-demanding at the stage of implementation; it requires the regulator (or, in this analogy, the constitutional designer) to be extremely confident at the outset that the prescribed design is best.

That classical constitutionalism works with performance standards rather than design standards means that, for the classical lawyer, the question which form of government is best cannot be answered absolutely and universally. Rather it has to be answered in relative terms, for a certain range of conditions in any given polity, depending upon the culture, history, traditions and circumstances of that polity. “Democracy,” the rule of the many, may or may not best, under given conditions; democracies, on the classical view, can be tyrannical, just as the rule of one or few may be. In Aristotle, as elsewhere in the classical political tradition, “democracy” is defined as the disordered, even tyrannical rule of a popular majority; Aristotle’s term for well-ordered rule by the many is polity, not democracy.³⁰ Aquinas likewise held, in a nuanced and pragmatic treatment, that the rule of one, few or many could be in principle be either well-ordered or disordered, and that among these kingship of one was best overall, but that a mixed constitution, with elements of monarchy, aristocracy and “democracy” in the sense of public participation, was even better still.³¹ Nothing in the general framework of basic principles in the classical law itself prescribes any form of government at all times and places. Rather, institutional regimes must be defended on the basis of an interpretive account of which particular institutional determination of classical principles best fits-and-justifies the constitutional order in a given concrete polity. Hence CGC expressly has both a general part and a particular part, with the former explaining the general framework principles of the classical tradition, and the latter offering an interpretive account that claims to both fit and justify the constitutional order of the United States in particular. These parts are detachable; one can subscribe to the general part without necessarily agreeing to my particular views.³²

Against this background, Ekins seems to plump for popular sovereignty as the foundation of the classical order, for in-system democracy, and indeed—although this is only suggested and not expressly defended in his treatment—for the very particular institutional form of parliamentary government with universal suffrage developed in the late 19th and early 20th centuries. From the standpoint of classical constitutionalism, these commitments are by no means wrong, necessarily. It is just that they are not mandatory, jointly or severally. Ekins thus runs together several quite distinct questions, at times seeming to assume that all these commitments must stand or fall together. In fact, these commitments are conceptually independent of one another. Central strands within the classical legal tradition have defended popular sovereignty as the foundation of the constitutional order,³³ but this is by no means the same thing as in-system “democracy” in any sense. Consider that the legal authority of the Roman emperors is or was, by a famous and central text of Roman public law, founded on delegation from the Roman people,³⁴ but that in that very same Roman imperial order, elections for magistracies were first transferred to the Senate and later abolished, although usually retained at the level of local cities.³⁵ In this history, popular sovereignty as a foundational principle of the legal order by no means entailed in-system “democracy” in any sense.

So too, Ekins seems to conflate the value of popular participation with modern and very particular institutional senses of “democracy.” Drawing on Aquinas, he argues plausibly and indeed eloquently that a well-ordered constitutional regime, a regime ordered to the common good, will embody political participation by the populace in some form or other, and perhaps even political competition for elected office.³⁶ But the good of political participation does not require or depend upon “democracy” in the modern, and quite recent, sense that I have described, a sense that only crystallizes in full towards the end of the 19th century and beginning of the 20th. (Certainly “democracy” in that sense is not what Aquinas defends.) Ekins’s discussion somewhat confusingly seems to equate the two, but they are distinct.

Regimes that are not “democratic” in the recent sense incorporate systems, sometimes extensive systems, for popular participation, voice and response. Consider Athens; does sortition for office from among free adult males amount to an adequate system of popular participation, or was the Athenian republic “undemocratic,” in Ekins’s view, because it lacked the modern combination of voting and universal adult franchise? And one wonders what Ekins makes of modern China, which lacks elections for offices at the apex of the constitutional order, but which features elections for popular congresses at the local level and which also features extensive systems for petitioning government officials to redress legal errors or misconceived policies.³⁷ Ironically, given Ekins’s appeal to Aquinas’s views, he would have to consider whether, on his premises, the Chinese system better approximates Aquinas’s preferred institutional framework, featuring popular election for and participation at lower levels of a mixed regime, than do most modern parliamentary democracies. Overall, then, the classical framework can take on board a great deal of Ekins’s discussion, such as his commitment to some form of public participation in government, while clarifying that his commitments do not entail one another, and that “democracy” in the very specific modern sense is not required by (although, assuming an ordering to the common good, it is permitted by) the nature of law or constitutionalism.

Finally, Ekins stresses the dangers of usurpation of the constitutional order. It seems that Ekins is responding here mainly not to CGC, but to certain hysterical criticisms of CGC. Perhaps those critics deserve less attention than they receive. Suffice it to say that no one sensible advocates for “usurpation,” certainly not CGC; and insofar as usurpation is a problem for constitutional theory, it is a problem that cuts across theories. No constitutional theory can fully guarantee the institutional, political and social conditions for its own enforcement, which depend ultimately on the broader health of the polity. Insofar as these critics argue from a hermeneutic of suspicion about the motivations behind CGC, then the Wilkinson paper, which I will briefly discuss later, can serve as a stand-in for them.

II. Barber, Disagreement, and Pluralism

Nick Barber’s response allows me to focus on a complex of related issues involving disagreement, pluralism, and tolerance (and related connections to democracy). First, however, let me clear away a few secondary issues Barber raises, as to which brisk reactions will have to suffice.

Barber says that although CGC is right to say that originalism is chronically indeterminate, the same point can be turned back against CGC itself; he says that CGC is under-developed, and needs further specification and concretization.³⁸ I have two reactions, one sociological and one theoretical. As to legal sociology, I find myself somewhat bemused at Barber’s comparison between originalism and CGC, for reasons that may be somewhat more evident to the American constitutional lawyer than to an Oxford theorist. Originalism has been, since the 1980s, no mere theory, but rather an enormous enterprise, heavily funded and resourced, replete with a universe of programs, think tanks, and dedicated academic positions (sometimes referred to as “Originalism Inc.”). If originalism has become more fractured and less coherent over time, as I believe it has, it is not for lack of time, resources and advocates attempting to work out the theory; rather it is because the theory cannot be worked out even in principle. And it is a bit demanding to say that the current revival of classical legal theory, which more or less began a few years ago, ought to be compared to originalism in this regard. Time will have to do its work, even if the initial signs are encouraging. It is now conventional wisdom that American public law is witnessing a revival of the natural law and the classical legal tradition.³⁹

As to the theoretical reaction, the incomplete specification of CGC is not an objection to the theory; it is itself part of the theory, and quite deliberately so. As Barber himself acknowledges,⁴⁰ CGC proposes a classical legal framework, not a blueprint. That framework has, as I explained, both a general part, common to all legal systems properly so-called, and a particular part, specific to particular legal systems, which must determine their own rules through the exercise of the virtue of regnative prudence, oriented to the common good. In this two-part structure it tracks one of the foundational ideas of the classical law: the distinction between the ius gentium and the ius civile. As Gaius famously 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 ius civile, civil law, as being that which is proper to the particular civil society. By contrast, that law which natural reason has established among all human beings is among all observed in equal measure and is called ius gentium, as being the law which all nations observe.⁴¹

The particulars of the ius civile are a matter for determination in particular polities according to their history, circumstances and traditions. Unlike universalist strands of liberalism that are obsessed with ensuring that all polities follow a uniform institutional and legal pattern, the classical legal framework looks to the ends of civil government, the promotion of the common good in the temporal order, not to the details of the ius civile. It is thus a kind of category mistake to claim that the classical approach is under-specified; it is as fully specified as the theory itself warrants.

Barber also makes rather heavy weather of a question about the relationship between the relationships among natural law, the ius commune, and the particular determinations of natural law in classical American public law. He is puzzled about how CGC envisages these relationships. I think this puzzlement arises from a failure to distinguish between first-order substantive legal rules, on the one hand, and the general principles of classical legality on the other.

Briefly, CGC discusses the ius commune for two purposes. One is to show that American “originalism” in the hypertrophied American sense is self-undermining. The legal world of the founding era, and the methodological and juridical assumptions under which approximately all founding-era lawyers read legal texts, were not those of 20th-century legal positivism, but instead those of the ius commune (in its Anglo-American variant, which like its continental cousin distinguished divine law, natural law, the ius gentium, and the ius civile or municipal law, and thus shared or participated in the broad classical framework of sources and methods). In the United States at least, to the very extent one is an “originalist,” one cannot also be a positivist, yet originalism claims to be a positivist view. Barber does not mention this point.

The second purpose is entirely epistemic. Here the point is to treat the ius commune as a storehouse of legal principles, a deposit of traditional learning for current lawyers. Now obviously, as CGC also explains⁴² and I have recently discussed,⁴³ it would be a silly mistake to think that the relevant resource is the set of first-order legal rules of the ius commune. No one is proposing to revive the Roman law of contract in its original form(s). As legal theorists at least since Aulus Gellius have explained,⁴⁴ first-order legal rules change and ought to change with circumstances and local needs. Rather the relevant resource is the set of underlying methods, sources and principles of the ius commune—principles in Dworkin’s sense of legal norms with both scope and weight. Where we see such principles enduring over time and adhered to, although instantiated with appropriate variation, in the wide variety of polities governed by the ius commune (empires, national monarchies, and aristocratic or republican city-states), we have powerful prima facie evidence that such principles track the real nature of law, and fulfill basic requisites of the classical definition of law as a reasoned ordering of promulgated rules to the common good. When, for example, we observe that from the very beginning of the ius commune, across a wide variety of polities and institutional forms, it has been considered a duty of the ruling authority to afford a hearing before sanctions can be applied,⁴⁵ or when we see that retroactive rulemaking has been disfavored in the law from the beginning,⁴⁶ we have powerful evidence that we are seeing a principle that tracks the rational intrinsic order of legality.

Now to Barber’s larger set of questions, which involve the roles of disagreement, pluralism, and democracy under classical constitutionalism. He emphasizes that not everyone will agree with any particular determination of background legal principles made by legal authorities. Barber thus defends a liberal pluralism, rooted in a claim about the inevitability of disagreement, and asks whether classical legal theory’s agnosticism about democracy is compatible with this liberal pluralism. A summary of Barber’s basic concern is: “who decides?”

I incorporate by reference here my remarks about Ekins and democracy. Barber too seems to overlook the crucial distinctions between popular sovereignty and in-system democracy, between or among different forms of democracy, and between the value of public participation and its possible institutional incarnations. Rather than reiterate the earlier discussion, let me make a set of different and somewhat broader points that engage Barber’s stress on disagreement.

First, I tend to think that too much focus on disagreement is an artifact of the seminar room and the ivory tower, an artifact of intellectualism in the pejorative sense. Intellectuals specialize in disagreement and overestimate its incidence and importance. Conversely, across time and political forms, human nature being what it is, there is broad common ground among ordinary citizens as to the core goods of communal life in the temporal order, ranging from basic physical safety, civic peace in the minimal sense, civic friendship in a far richer sense, stability of family life and the availability of employment, education and health care, clean and decent public spaces and facilities, and in general all the social preconditions for decent and well-ordered human flourishing in society.

Second, disagreement is not, in and of itself, a problem for law; it is a precondition for law. Whatever may be true of a society of angels,⁴⁷ among chronically imperfect and self-interested humans living in society, law is the final social instrument for settling disagreement. In any legal order that does not operate by Pareto unanimity—in other words, in any real legal order—someone or other must, finally, decide upon the legal entitlements of others. The loser in such a decision will always disagree on some level (even if the loser finds the system for allocating entitlements legitimate), but the existence of a legal authority that may finally override our disagreement and compel our obedience is the natural, inevitable, and beneficial state of man.

Furthermore, Barber seems to assume (perhaps implicitly—he is not quite clear on this point) that a positivist account of law that looks only to legislative enactments and other authorized positive sources does better at settling disagreement than does a classical account that includes positive law among other sources of law. But this is hardly obvious. In the United States, the advent of positivist versions of “textualism” and “originalism” in the courts has not visibly reduced disagreement among appellate judges; one would have to tell a complex and uncertain story about the selection of cases for litigation even to make such a claim, and Barber does not attempt to do so. In general, the broader palette of legal sources available to the classical lawyer—including, for example, background principles drawn from the tradition of natural law—may produce more closure and more legal certainty than bare positivism (even assuming there is any such thing as bare positivism, which CGC denies⁴⁸). If I may indulge a self-quotation: “As [Richard] Helmholz argues, and as Conor Casey [has] illustrated from recent Irish law, a standard way classical lawyers draw upon ius is to invoke settled and traditional background principles in order to reduce indeterminacy that would otherwise obtain in the positive lex.”⁴⁹ Indeed, as CGC argues throughout, the judges’ nominal theory may be positivist, but their practice is often classical; they frequently appeal both to natural procedural justice and to substantive background principles of legal justice that track traditional natural law intuitions to resolve cases, although usually without acknowledging they are doing so or showing much self-awareness that that is what they are doing.

It is not that there is no point to Barber’s focus on disagreement, but he needs to draw two distinctions. One is between a global version of the “who decides?” question and a local version of the “who decides?” question. A second distinction is between pluralism as a master political principle and pluralism as a prudential consideration, one that the practical wisdom of prudent magistrates will take into account. In both cases, with respect to both distinctions, I think the first term in the distinction is incoherent, while the second is entirely sensible, but easily taken on board by classical legal theory, and indeed is already taken on board by the discussion in CGC. I will take the two distinctions in turn.

As to the first distinction,⁵⁰ between the global who-decides question and the local who-decides question: the difference between the two questions is not one of scale, of the specifics of the American form of federal union or anything like that; rather it is conceptual. CGC illustrates the difference with reference to a decision of the U.S. Supreme Court in 1877, Mugler v. Kansas, which held that state legislatures could reasonably ban intoxicating liquors.⁵¹ The local who-decides question asks: “given that someone must have the power to determine whether intoxicating liquors should be banned or should instead be permissible, to which institution is that power to be allocated?” (In Mugler: legislature or court?) The global who-decides question asks: “Must anyone decide? Is it not too dangerous to let anyone do so?” Whereas the local question asks “by whom should power be exercised?” the rhetorical thrust of the global version is to ask “must power be exercised at all? Could not everyone decide for themselves?”

Now, the local who-decides question itself is an entirely coherent and indeed inescapable one. General background principles of legal and political morality, such as the duty to prevent severe harms to the community, must be made concrete and applied to particular cases by the determinatio of some authority or other, as Harlan and other classical lawyers put it. Who that authority will be is an open question; different polities may of course adopt different arrangements within reasonable bounds, although as I explained above, American classical lawyers believed that such determination was primarily the competence of the general lawmaking body, the legislature. Nothing in the general principles of legal justice and political morality prescribes some particular type of institutional regime or particular scheme of judicial review. There is thus no escape from local who-decides debates, in any given polity, about how the competence to make such determinations is to be parceled out between or among what sorts of institutions. The local question is the ordinary stuff of law.

Very different is the global who-decides question. Remarkably, the cry of “who decides?” is sometimes offered to suggest—although this is usually left implicit—that no one should decide, or equivalently that everyone should decide, but only for themselves. The thought is that no one should be authorized to “use state power” to “enforce their choices” or “impose their preferences” on others. The global who-decides question is animated by a horror of living human authority empowered to determine purposively what rules of order society should follow for the common good—a horror of the idea that the law should have a “living voice,” as the Roman lawyers put it with respect to the ius honorarium of the praetors.

But, as the Court observed in Mugler v. Kansas, it is not possible that no one should decide, or that everyone should decide, but only for themselves. “Power to determine such questions, so as to bind all, must exist somewhere, else society will be at the mercy of the few, who, regarding only their own appetites or passions, may be willing to imperil the peace and security of the many, provided only they are permitted to do as they please.”⁵² The consequence of denying public authorities the power to “bind all,” distributed in some appropriate fashion between legislatures and other actors, would not be to somehow eliminate that power. It would just be to transfer that very same power “to bind all” into the hands of a few individuals, in virtue of other legal rules made by other governmental actors, such as, in a common-law system, courts making common-law rules of property and contract, or in a civilian system, code-makers and the judicial and administrative organs that implement the code, or constitutional courts deciding upon individual libertarian entitlements. So too with quasi-public corporate actors wielding powers under “private” law, such as media and social media entities. Whatever organ pronounces such rules and identifies the background legal entitlements, it is ultimately the state that enforces them, and when the activities of the few disturb the peace and security of the many, to invoke law to bar the many from defending themselves through legislation is itself an exercise of the coercive force of the state. That too, just as much as the state prohibition at issue in Mugler v. Kansas, is an exercise of coercive power in the service of a particular vision. (In the case of certain libertarian entitlements, justified in certain ways, I also happen to believe that it is also be a wildly implausible vision, but that is a claim about the content of legal justice, one that is independent of my conceptual claims here.)

So although local who-decides questions are sensible, important and indeed inescapable, the idea that “who decides?” will somehow exempt us globally from authority and its possible abuses is, in the end, a simple confusion. There is undoubtedly a risk of abuse of power by legislatures (or for that matter by courts), and the Court’s answer to the local who-decides question in Mugler v. Kansas, giving judges some backstop constitutional authority to review statutes for reasonableness, is intended to ameliorate that risk. But the few who indulge their passions for intoxicating liquors, if we suppose them to imperil the peace and security of the many, are also abusing power through the exercise of common-law entitlements of property and contract. In that sense they are abusing a type of state power—in an Anglo-American system, in particular, a power enforced by the special type of bureaucrats who staff common-law courts, a power the few exercise when wielding state-protected property and contract rights. The law always has a living voice. The only question is: Whose voice will it be? It is unclear what it would even mean to adopt a “neutral” position. Legal authority and power is a necessarily limited resource to be allocated, and if given to some it must be denied to others.

Now let me turn to the second distinction I think Barber needs to draw, between pluralism as a master principle of constitutionalism and pluralism as a pragmatic and prudential desideratum of legality. A premise of CGC is agreement with Ryszard Legutko’s view that liberal pluralism cannot even in principle be the master commitment of any constitutional order.⁵³ Every coherent political society that has ever existed, beyond some minimum of complexity, has been governed by authority, pursuing some account or other of common aims—even if only in the oddly inverted form of an account claiming that maximizing libertarian entitlements just is the common aim. There can be no such thing as liberal pluralism in principle, because liberal pluralism is, as Legutko explains, just another monism—the special case of monism that relentlessly drives non-liberal comprehensive views from the public sphere, by coercion and the force of law if necessary, including coercion effected indirectly through employment relationships and the structure of the “free” market.

Of course this does not rule out what I called prudential pluralism, which CGC takes on board without strain.⁵⁴ The impossibility in principle of liberal pluralism does not mean that there cannot be a second-best, pragmatic and prudential form of pluralism, rooted in the understanding that, as J.F. Stephen emphasized,⁵⁵ it is often unwise to attempt to use the rough instruments of the law to lead citizens and society to true beliefs and virtuous habits, at least not too quickly. There is nothing distinctively liberal about this insight, unless we tautologically define as proto-liberals all legal theorists who advocate prudential pluralism; Aquinas held the same view as Stephen, and neither are plausibly described as liberal legal theorists, to say the least. Aquinas argues at length that the law neither should nor can prohibit all vice or prescribe all virtue:

many things are permissible to men who are not perfect in virtue which would not be tolerable in a virtuous man. But human law is framed for a community of men the majority of whom are not men of perfect virtue. And so human laws do not prohibit all the vices from which virtuous men abstain, but only the more grievous ones, from which it is possible for the greater part of the community to abstain; and especially those which do harm to others, without the prohibition of which human society could not be maintained. Thus human law forbids homicide, theft and things of that kind…. The intention of human law is to lead men to virtue not suddenly, but step by step. And so it does not immediately impose upon a community of imperfect men the kind of obligation suited to those who are already virtuous: that is, to abstain from all evils. If it did, imperfect men, being unable to bear such precepts, would break out into still greater evils…. Hence also human law does not prohibit everything that is prohibited by the natural law.⁵⁶

Finally, I have to say that I am rather puzzled by Barber’s appeal to the notorious “mystery of life” passage from the plurality opinion in Planned Parenthood v. Casey.⁵⁷ To revisit the horror, the passage says that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” No one has ever been able to explain what the passage means. If it has any legal implications at all, it is a kind of unlimited individualist libertarianism that is incompatible with life in organized society. What is puzzling here is how this passage sits with Barber’s other views. Barber has previously defended a strikingly communitarian account of constitutionalism, with distinct classical elements, albeit somewhat marred by a utilitarian-aggregative value theory, which the classical conception of the good emphatically rejects.⁵⁸ The passage and its premises, however, fit very ill with Barber’s wider thesis. Hopefully future work will clarify these questions.

III. Tasioulas, Liberalism, and Equity

John Tasioulas’s constructive contribution⁵⁹ emphasizes our common ground, while offering valuable thoughts from within a framework of broad agreement. Tasioulas explains that he shares fundamental commitments underpinning the classical legal tradition: that “there are objective truths about human well-being and morality, with the latter exhibiting a dependence on the former; that morality includes natural rights and a non-utilitarian conception of the common good; that law is to be properly understood as an institution geared towards the realization of justice and the common good; that notions such as determination, subsidiarity, and epikeia have a vitally important role to play in a just legal order.”⁶⁰ His differences with CGC, he explains, involve only the interpretation and implications of these commitments.⁶¹

In the same spirit, let me begin by stating that the classical lawyer can go a long way towards agreeing with Tasioulas’s major suggestion for a different account of the implications of classical principles: his suggestion that “liberalism” is compatible with a classical account of constitutionalism. For the classical lawyer, this claim is entirely congenial so long as “liberalism” is taken in an operative rather than foundational sense. That point may be surprising, but really ought not to be. As CGC explains, and as I have emphasized above in discussing Aquinas’ and JF Stephens’s view that the rough engine of the law ought not prohibit all vices or enforce all virtues, the difference between liberal legalism and classical legal theory is not to be found, or not necessarily to be found, at the operating level of legal rules, permissions, and entitlements, but instead at the level of justification. The classical lawyer sees individual “liberties” and “rights” as justifiable when, but only when, they are part of a larger system of law conducing to the common good, rather than on grounds of (say) individual autonomy. But it may well be, under particular conditions, that a classically-justified system of legal entitlements will include some or much of what are today called “liberal” rights. As Helmholz explains in valuable papers on the classical conception of human rights,⁶² a whole panoply of legal principles and entitlements that liberal legalism has tried to claim for itself in fact have ancient roots in the classical legal tradition, albeit—and crucially—justified on non-liberal grounds.

Where I may differ with Tasioulas is at the lower level of legal interpretation and adjudication, especially the relationships among positive law (lex), law generally (ius), and “morality.” As I am unsure whether we have a genuine disagreement in this regard, or instead only favor different ways of presenting the same basic insights, let me briskly restate my views in positive terms and then compare them with Tasioulas’ views.

CGC nowhere says, and no classical lawyer has ever said, that all “morality” as such is part of the law, in any sense of “law.” Rather CGC argues that the common good, equity (aequitas), and various primary and secondary precepts of natural law, are themselves legal concepts, principles of legal justice,⁶³ and are relevant because and insofar as they are, as Finnis puts it, ipso iure part of our law.⁶⁴ Sometimes these principles are also legal principles in the sense that they are themselves embodied directly in positive legal texts (lex), as when constitutional provisions refer in terms to “the common good” or “the general welfare.” In such cases, the legal interpreter has no choice but to interpret the provision one way or another, or to defer within reasonable boundaries to another institution’s interpretation of the provision, which is just another choice. I note that as far as I can see, none of the commentators discussed the large fact that constitutions and statutory provisions all over the world themselves refer in express terms to fundamental classical legal concepts, and have to be interpreted as such—a point that CGC emphasizes.⁶⁵

In other cases, background principles of legal justice are part of ius, even if not embodied expressly in lex. Venerable examples are the principles that no man should be judge in his own cause, or the principle that no man should profit from his own wrong.⁶⁶ The main function of such principles for the classical lawyer is to serve as interpretive maxims or presumptions, which the lawyer or judge uses to interpret texts and to harmonize texts with fundamental background commitments of the legal order. Again, we may if we like call such presumptions “legal fictions,” so long as we understand that all canons, maxims and presumptions are “fictional” in this sense. Does Parliament really intend, say, to legislate consistently with international legal obligations? It is unclear what the question even means, for any number of reasons (it is debatable and debated whether collective bodies can ever form intentions; whether a Parliament is the sort of collective body that could form them; how one might discover the “real” intention; and so forth), but lawyers since the dawn of time have drawn upon such canons and presumptions anyway. The main effect of doing so is to mutually adjust, harmonize and reconcile legal texts with enduring background commitments and principles that transcend the decisions of any one legislative body at a given time. To dismiss such interpretive presumptions as “fictional,” as Tasioulas occasionally seems to do,⁶⁷ proves far too much; it would condemn what has been perhaps the primary tool of all working lawyers when interpreting legal texts, throughout the history of the Western legal tradition.⁶⁸

Tasioulas observes that even if “moral principles are indispensable in the interpretation of law… many considerations are indispensable in the interpretation of law, from the rules of grammar to the laws of arithmetic, without this plausibly rendering them part of the law of the land in their own right. Does arithmetic become part of the tax code because a basic grasp of it is indispensable in calculating one’s tax liability?”⁶⁹ I’m tempted to the rather flip reply that of course principles and practices of mathematics, economics, accounting and other sciences can not only be used by judges, but also can be and are incorporated into the law of the land, when such principles turn out to be relevant to interpretation and legal justice. Consider the recurring issue whether statutory dollar figures should be read according to nominal value or real value, with the latter approach building in an adjustment for inflation. American courts at least have developed, as part of the law, a presumption in favor of the former approach unless Congress has indicated otherwise, thereby building a particular accounting principle into the law.⁷⁰ Of course, as Tasioulas says, that principle is not built into “the tax code” itself, in that it is not written into the enacted text. But that is just to say it is not lex. It is however ius, and “law” includes both.

But let me offer a more general answer as well, in order to address the real substance of Tasioulas’s question: on the classical view, what are the respective boundaries of “law” and “morality”? Against the backdrop of the affirmative view that CGC advances and that I have just summarized, we can see that this question appears to the classical lawyer to be ill-framed. The assumption behind Tasioulas’s discussion is that “the law” is one domain, “morality” is another, and our problem is to understand the relationship between them. For the classical lawyer, however, the problem cannot be addressed in those terms, because there are three categories, not two. There is “morality” tout court; the subset of (political) morality that embodies principles of legal justice (ius); and the texts of positive law (lex). Both of the second two categories count as “law,” but no classical lawyer has ever said or thought that all “morality” is part of “law,” and CGC does not make such an outlandish claim. Rather, as H.F. Jolowicz explained as to the classical Roman lawyers (and his point generalizes across the classical legal tradition), “aequitas remains closely connected with law; it is a criterion of the correctness of law, and a principle of construction, not a contrasting legal principle…. Law is equity, but equity is not law except in so far as it is laid down.”⁷¹ The problem here is essentially that the analytic categories available in English are impoverished by the failure to distinguish between ius and lex (a failure that, in my view, is at least one major cause of the Anglophone propensity to legal positivism, but that point would take me too far afield).

Put otherwise, and more generally still, the framework that asks what is the relationship between “law” and “morality” begs the question in positivist terms.⁷² For the classical lawyer, law is itself a distinctive department of political morality,⁷³ the art or craft of practical reasoning about legal justice⁷⁴ that takes into account distinctive considerations arising from the institutional embodiment of the legal system. It is the department that attempts to embody in practical reasoning the virtue of what Aquinas called general or legal justice, the rendering of each his due, a virtue intrinsically ordered to the common good of the community. The ius that inheres in lex and is used to interpret lex, therefore, is not just “morality” as such. It is a system of principles that are themselves relevant to and embody legal justice.⁷⁵

A corollary of this view, as CGC explains, is that for the classical lawyer, a statute or constitutional provision is not to be reduced to or equated with a particular collection of words that happens to emerge from the lawmaking process. In a locution that is common in classical legal interpretation, but nearly impossible for positivists to understand, classical judges would say that a particular interpretation could be “outside the letter of the statute” yet nonetheless “within the statute,”⁷⁶ because of a benign (and if you like “fictional”) attribution to the lawmaker of an intention to legislate lex, unless the contrary indisputably appears, in harmony with ius, enduring background principles of legal reason and of equity (aequitas). Here too, I think Tasioulas sets a foot wrong by invoking Aristotle for the idea that epikeia corrects the “law” in the service of “justice,” which Tasioulas seems to understand as in some sense outside of law. This is a positivist reading that begs the question by assuming, again, that law is one thing, justice another; and it is not how classical lawyers understood the tradition or how CGC does. As Jolowicz explains, classical civilians folded epikeia “into” the law by the benign fiction about legislative meta-intentions I have previously mentioned: “In the civilians’ hands… the Aristotelian conception of equity as excepting cases which the legislator would have excepted, had he foreseen them, becomes, quite logically, intermingled with the idea of the legislator’s intention as the deciding factor and with the rule ‘cessante ratione legis cessat lex ipsa’” (when the reason of the law runs out, so too does the law itself).⁷⁷ This is in essence the clarification and domestication of epikeia that occurs during the development of the classical tradition, and it is the view that CGC defends.⁷⁸ In the hands of the classical lawyers, epikeia or aequitas is itself firmly a principle of legal justice, and a maxim of legal interpretation, as in a famous maxim of the jurist Paul recorded in the Digest: “In all things, but most of all in law, aequitas is to be regarded.”⁷⁹

To be clear, I am not sure whether all this creates a genuine disagreement with Tasioulas, or instead states a view that he agrees with, and that his questions are intended to suggest. In either case, of course I believe it is the correct view, while taking Tasioulas’s discussion as a helpful occasion and spur to summarize and distill CGC’s account, so as to either clarify our precise disagreement or else to discover, happily, that no such disagreement ever existed.

IV. Burbidge, the Common Good, and Subsidiarity

I will address the contributions of Burbidge, Casey, Walsh, and Wilkinson more briefly, not to slight them—the first three are interesting and valuable—but simply because I have less to say about them.

A. Burbidge

Burbidge’s contribution makes a useful cautionary point, as I will explain shortly. But the frame for his point is overstated; Burbidge makes far too much of what I take to be a philological premise that is dubious at best.⁸⁰ Given this, I rest in the conventional reading, inferred both from context and from the larger structure of Aquinas’s thought, that the good is ultimately unitary. As the Rev. Jon Tveit explains, “[a] good is only common—in the fullest sense of the word—if it is shared entirely by all those to whom it is common, without being diminished by being shared. A cake, for instance, is not truly a common good, although all members of a particular group may each enjoy a piece. They do not share it entirely, rather each participant receives one piece of the whole. The piece which is good for one is not a good shared by another. In this way, all material goods are always diminished by being shared, so no material good can be common. A truly common good therefore must be something immaterial, like the enjoyment of an opera by an audience, or the friendship shared mutually by two friends.”⁸¹ On this view, the highest temporal good of life in a flourishing political community is a unitary good.

We have to be careful, though, about what this means, and here Burbidge offers a valuable caution, albeit one that CGC already recognizes. The unitary character of the highest temporal good of course does not mean that the common good is uniform or homogeneous, in the sense that every member of society must be forced into the same mold, or that respect for differences is not part of the prudential application of legal justice. The classical metaphor is that the body politic is composed of many different parts, with different functions and abilities, all of which contribute to a well-ordered political community. Subsidiarity is itself built into the common good,⁸² and this is what underwrites respect for the very real private goods (plural) that are Burbidge’s concern.

B. On Casey on Vermeule

Conor Casey’s paper serves as an invaluable overview of the recent debates about common good constitutionalism, and a prime resource for anyone interested in those debates.⁸³ As to Casey’s acute analysis of the development and inner consistency of Vermeule’s writings over time, no author could fail to find himself an endlessly interesting topic, and I largely agree with Casey’s coherentist reading, which observes that Vermeule’s recent work is a development and amplification of the premises of his earlier work. Still, both methodology and modesty counsel silence about Casey’s thesis. The author has no special privilege in the interpretation of his own writings, and an excess of self-reference is bad for the soul.

But I will add to Casey’s acute exposition two points. First, although I believe the interpretive framework laid out in my very first book,⁸⁴ years ago, is entirely consistent with the framework of CGC—most simply put, both share the fundamentally teleological orientation to performance standards rather than design standards—it is also true that, within the framework, CGC better appreciates the existence and range of “hard cases.” More precisely, CGC is better attuned to the classical lawyer’s sense that the reason of the law enters into the semantic “meaning” of text right from the beginning, and that any attempt to divorce either semantic or legal meaning from legal reason ends up producing hopeless under-determinacy. Second, were it to turn out, contra Casey, that there is some unmistakable inconsistency in Vermeule’s writings over time, presumably Vermeule thinks himself right now, and wrong then. Consistency is an institutional virtue for judges deciding precedents over time, but in and of itself consistency is not a scholarly virtue; correspondence to truth is the only goal of scholarship.

C. Walsh, Property and Principles

As to Rachael Walsh’s instructive paper,⁸⁵ I have little to say only because her exposition is convincing and addresses a field in which my own expertise is limited. I do think her paper is methodologically significant, in addition to being substantively significant. It supplies an illustration of the point I made in response to Barber: CGC offers a classical framework that can be filled in with respect to particular areas of law in particular legal systems. The revival of classical legal theory—meaning not, of course, any sort of wooden effort to return to the first-order rules of the classical law, but rather the adaptation and translation of fundamental principles to new settings (non nova, sed nove)—can only be a long term project, given that positivism has dominated the scene for decades, although that dominance is now distinctly shakier than it once was. And as I explained above, it is not merely a question of time, but a question of legitimate variation across legal systems and polities. The determination of, in Walsh’s example, property law necessarily will and (according to the classical approach) should vary across polities, even though the general background principles that Walsh explains so clearly transcend those differences.

V. Wilkinson, Authority, and the Hermeneutic of Suspicion

Finally, a few words on Wilkinson’s paper⁸⁶—the only one of the group that I see as overcome by political hostility to CGC, resulting in a bevy of mistakes, misreadings and inconsistent claims, as though the author reached for anything to hand with which to attack the enemy, coherence be damned. A minor, but revealing, example of Wilkinson’s misreadings is that he repeatedly taxes CGC with asserting, but not explaining, how the classical legal tradition in the United States broke down over the period from approximately 1914-1945.⁸⁷ As Wilkinson must surely have seen, however, or would have seen were he not merely casting about for accusations to make, CGC in fact says expressly, several times, that the story of the breakdown of classical legalism has been told at length by professional historians of American law.⁸⁸ CGC explains and incorporates that story by reference and provides detailed references to that literature,⁸⁹ primarily because I am not a professional legal historian and had no reason to think I either could, or needed to, improve upon their accounts. It is a poor prosecutor who leaves out of his account obvious record evidence, exposing himself to easy rebuttal.

Much the same can be said in relation to CGC’s engagement with the history of political thought. CGC devotes the very beginning of the first chapter to describing a standard philosophical account of the common good⁹⁰ and then, in the rest of the chapter, moves on to explain the implications of that account for law. Wilkinson complains that CGC does not sufficiently engage with this or that idea or figure from philosophy or political theory, and that CGC is not sufficiently detailed about the classical philosophy of the common good. But this a mistake of genre about CGC, whose express enterprise is to work within law, not to offer a preliminary treatise on classical political philosophy. Here too, CGC incorporates the tradition by reference with citations to standard works that can explain the philosophical side of the tradition more accurately than I or any other lawyer could ever hope to do.⁹¹ Wilkinson’s mistake of genre here is akin to complaining that, say, John Hart Ely’s book on democracy and judicial review⁹² does not contain a preliminary treatise of political theory on the nature of democracy, or a jurisprudential treatise on the nature of adjudication, or to complaining that the Digest does not include a preliminary treatise on Stoic philosophy, but merely incorporates and refers to fundamental Stoic ideas while adapting them to legal practice. Not that I am comparing CGC to these works in point of quality, of course; but they illustrate that applied constitutional and legal theory, the genre in which CGC is written, is simply a different genre than legal or political philosophy.

So too with a myriad of other claims Wilkinson makes. One example is a musing that embodies a hermeneutic of suspicion characteristic of Wilkinson’s whole paper: “Is the claim to sever conservatism from economic libertarianism merely opportunistic, seizing on a moment of deep and widespread discontent with the vast inequalities in American society (and replicated elsewhere)? The fact that no claims against economic libertarianism or neoliberalism are developed in Common Good Constitutionalism makes this difficult to assess.”⁹³ In fact, CGC defends in detail a conception of property rights and the Takings Clause⁹⁴ that provides expansive public authority to regulate private property for the common good,⁹⁵ and defends in detail a capacious conception of administrative power to regulate economic and environmental activity⁹⁶—so much so that American libertarians and free marketers have been vociferous critics of the book.⁹⁷ We have here another example of the mistake of genre that Wilkinson commits; he expects a political theory treatise on neoliberalism rather than a work within law.

Another example is Wilkinson’s claim that “[c]ommon good constitutionalism is ambivalent on the question of the scope of judicial power in respect to legislative power in the constitutional order.”⁹⁸ As explained above, with citations, CGC rather relentlessly argues for a deferential mode of judicial review at all levels, constitutional and sub-constitutional, along the lines indicated by Thayer, and by arbitrariness review in U.S. administrative law; indeed CGC expressly takes deferential arbitrariness review as a general model for judicial review,⁹⁹ and argues that classical judicial review takes this form. But enough; the list of such examples could be multiplied indefinitely.

The political enmity and the resulting hermeneutic of suspicion that pervade Wilkinson’s paper deserve independent comment, because they are so characteristic of left-liberal constitutional theory. That label is one Wilkinson seemingly eschews, imagining himself a genuine socialist or social democrat, not a liberal. But, of course, genuine socialists, the Anglo-American old left that has now all but disappeared from the scene, have historically been communitarian and indeed socially conservative. It is characteristic of left-liberal constitutional theory that many of its proponents urge, often in the name of “democracy,” a kind of bourgeois half-socialism of the highly educated, combining extensive economic regulation with an adamant refusal to recognize the social and communal dimensions and effects of cherished individual liberties, especially sexual liberties. Such theorists are often quite appalled by the actual results of democracy, which they invariably impeach on some procedural ground or other—whatever comes to hand. Despite his disavowals, Wilkinson’s fervent and largely unexplained approval of the Obergefell decision betrays this mindset—an approval that he never bothers to reconcile with his professed commitment to the primacy of democracy, beyond observing in a tepid aside that legislative creation of same-sex marriage rights might have been the preferred course.¹⁰⁰ This creates an almost comical tension within Wilkinson’s argument, given that Obergefell, which overturned the laws of dozens of states and rejected the unbroken legislative consensus of millennia, is the most radically anti-democratic decision in recent memory.

The hermeneutic of suspicion at work is that, for Wilkinson, the surface claims of CGC are a kind of mask behind which lurks the specter of “authoritarianism,” by which Wilkinson appears to mean the view that “democracy has no intrinsic value.”¹⁰¹ Bizarrely, Wilkinson seems to assume throughout that “authoritarianism” is the antonym of “democracy,” as though democracies cannot possibly be authoritarian. But both “democracy” in any of its polyvalent senses and liberal non-democratic orders, and indeed the uneasy combination of the two, can be and have been tyrannical in the classical sense—ordered to the self-interest of part of the polity, whether that part is a numerical majority of eligible voters (as in democracy and the “tyranny of the majority”) or an elite minority (as in oligarchy and the “tyranny of the minority”). Paradoxically, the recognition that democracies too can be straightforwardly authoritarian is in an important sense genuinely anti-authoritarian. It recognizes that any system of political authority can be tyrannical, or not, and that it is a mistake to assume that there is any one institutional technology that always and everywhere guarantees against tyranny, no matter the conditions of the polity.

For that reason, classical constitutional theory, as I have explained, does not in fact believe that “democracy,” let alone the uneasy combination of 20th-century views that goes under the label of liberal democracy, has any intrinsic value, if by that we mean that a particular institutional technology for public participation is (at least presumptively) best in all times and all places, for any polity. The classical view is perhaps best summarized by John Paul II: “Democracy is fundamentally a ‘system’ and as such is a means and not an end. Its ‘moral’ value is not automatic, but depends on conformity to the moral law to which it, like every other form of human behaviour, must be subject: in other words, its morality depends on the morality of the ends which it pursues and of the means which it employs.”¹⁰²

As Wilkinson’s paper unintentionally illustrates, the horror of “authoritarianism”¹⁰³ is the great unargued primitive of standard left-liberal, professedly democratic constitutional theory. The irony here, of course, is that Wilkinson and others wield the concept like a verbal cudgel to attempt to narrow the range of the thinkable in legal theory. The irony was explained long ago by Maurice Cowling, who showed that Mill’s putative liberalism necessarily and inevitably had authoritarian implications.¹⁰⁴ And it has recently been documented rigorously by the social psychologist Luke Conway in work detailing the fact—both curious and obvious—that “[n]ot only were liberal authoritarians less likely than conservatives to accurately identify themselves as authoritarians (when they were, in fact, authoritarian), but there was actually a negative correlation between left-wing authoritarianism (the reality) and liberals’ willingness to identify as authoritarian (their own perception). That means that the more authoritarian liberals are, the less they believe they are authoritarian[.]”¹⁰⁵ I can only marvel at the irony that Wilkinson himself once wrote against “authoritarian liberalism,”¹⁰⁶ and has himself now come to display these very traits.

To end on an affirmative note, let me say that there is a sense—albeit not Wilkinson’s sense—in which the classical tradition is indeed authoritarian. It holds that authority is natural, inevitable and, insofar as it is compatible with fundamental principles of legal justice, good. No polity of any level of complexity can exist, or ever has existed, without authority. The task of the classical lawyer is to ensure, as far as possible, using interpretive presumptions and general principles of legality, that authority is guided by respect for divine and natural law and general principles of procedural and substantive legality. On this view, authority rightly conceived is the hypostatic union of power and legal justice. Taken together, in combination, power and legal justice are complementary, mutually beneficial, and beneficial to the polity. Or, as Pascal put the point in negative terms: la justice sans la force est impuissante; la force sans la justice est tyrannique (justice without force is powerless; force without justice is tyrannical).¹⁰⁷ Legal theory in Wilkinson’s conventional register focuses solely and myopically on the second of these two risks, whereas the classical tradition holds that both are equally worthy of attention.¹⁰⁸

Footnotes