The stated aim of Adrian Vermeule’s Common Good Constitutionalism is to restore American legal theory and practice to its roots in classical law, the mix of legal sources that dominated American jurisprudence from the Founding until some point in the twentieth century. Things began to go wrong, he tells us, with the arrival of positivism, which took root in alien soil. According to Vermeule, positivism—the view that the normativity of law arises from the will of authorized magistrates—comes in two forms: the originalism of legal conservatives, which fetishizes the text of the Constitution; and the progressivism of left-liberals, whose hopes rest on judges authorizing an ever-expanding list of rights with the goal of unfettered autonomy.
Vermeule’s understanding of the foundations of classical law is also distinctly Roman Catholic, though he doesn’t explain in this book how this other set of texts and traditions—including canon law, papal decrees and encyclicals, and Catholic social teaching—fits into the American legal matrix of English common law and Roman law. Many of the book’s claims, especially those having to do with natural law, are accompanied by quotations of Catholic thinkers ranging from St. Thomas Aquinas to the Cistercian monk and blogger Pater Edmund Waldstein.
This mix of sources and modes of thinking—and levels of expertise—leads to an uneven experience for the reader. When it comes to topics squarely within his academic competence, especially administrative law, Vermeule cites case law and legal scholarship in careful detail (though much of this material can be found in his earlier work). But when it comes to explaining the Thomistic account of natural law or the Catholic Church’s teaching on subsidiarity, he repeats the same buzzwords over and over again with the incantatory brio of a Harry Potter spell (determinatio!) and offers citations to blog posts, dressed up in the endnotes as if they were scholarly monographs or law-review articles.
To show that positivism is wrongheaded, Vermeule first presents a hybrid descriptive-and-normative theory of law as essentially directed to the common good—that is, the collective flourishing of a political community. He then provides a series of applications to legal controversies ranging from same-sex marriage (bad) to environmental protection (good). The problem is that it isn’t always clear why the common-good theory of law—the ancient and medieval consensus view that Vermeule attributes to the Founders and subsequent generations of American legal theorists right up until the First World War—leads to the conclusions that he wishes to draw. When he starts drawing those conclusions, there is too little argument and too much polemic.
Vermeule’s analysis is not only historical. He also takes pains to explain his view in terms of more recent philosophical debates about the nature of law. Here Vermeule firmly aligns himself with the moralism of Ronald Dworkin and against the positivism exemplified by H.L.A. Hart. In Dworkin’s view, we cannot make sense of what legal actors do without reference to the moral principles that guide their activity. Positivists such as Hart, by contrast, take the authority of law to rest on social customs and a division of labor: some people are granted authority to set, to interpret, and to implement the rules of the legal system, which all are then bound to follow.
But the Hartian legal positivist distinguishes between the normativity of law and the normativity of morality: deciding whether any particular law should be followed remains a moral and not a legal matter. Vermeule does not mention this important distinction in the positivist position. He argues that in thinking about the American constitutional and legal system (and, indeed, any other such system) we must have due regard for ius, the whole of justice or right, and not only lex, the explicitly stated body of laws, including the Constitution. But the Hartian positivist is a positivist only about lex. That seems like a position Vermeule could easily accommodate. His foray into the philosophy of law seems unnecessary for his points about constitutional interpretation—his true concern in this book.
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