Classical Natural Law, Common Good Constitutionalism, and the Process of Constitutional Change

Revised essay

Last year I was asked to contribute a chapter to a forthcoming Research Handbook on Constitutional Change. The aim of the volume is to provide a comprehensive and insightful account of the field of constitutional change (including constitutional amendment and informal constitutional change) and the diverse methodological and normative approaches that can be brought to bear on the subject-matter. I was asked to write from within a classical natural law/common good constitutionalism framework.

I have uploaded a substantially revised version of my draft essay to SSRN in case it is of interest to any of our readers. The introduction to the chapter can be read below.

Introduction

Common good constitutionalism is a theory of constitutionalism and constitutional law, grounded in the classical natural law tradition.[1] It is influenced by both its philosophical and juristic strands. On the philosophical side, common good constitutionalism’s normative and conceptual accounts of the source, point, ends, and limits on political and legal authority draw upon the Aristotelian-Thomistic tradition of Plato, Aristotle, Cicero, Aquinas, Suarez, Vitoria, and more recently the likes of Heinrich Rommen,^[2] Yves Simon,^[3] Charles De Koninck,^[4] and John Finnis.^[5]

Common good constitutionalism also draws heavily upon the civilian juristic side of the classical legal tradition, which is both more practical in its focus and partially independent of the philosophical and theological strands. This side of the tradition is concerned with identifying, implementing, and harmonizing the classical sources of law in the concrete circumstances of a given political community and through institutions of law and legal practice. On the classical view, the sources of law include positive civil law, the law of nations, natural law, and divine law. The corpus of the classical legal tradition includes inter alia the work of the Roman law jurists, the great texts of Justinian’s Corpus Juris Civilis – the Digest, the Code, the Novels – that codified Roman law for the Empire, the many influential legal codes and commentaries building on the Corpus following its recovery in medieval Europe, the ius commune tradition – the stew of Roman law, canon law, and the other legal sources that formed the matrix within which European legal systems developed – and regional adaptations of the ius commune like the Anglo-American common law tradition.^[6]

Common good constitutionalism’s leading theorist, Adrian Vermeule,^[7] says that the theory is primarily concerned with reviving an immemorial way of viewing the purpose of law, of public law, and how law relates to the common good.^[8] As such, it is not a novel theory; rather, it seeks to adapts long-standing precepts and insights of the classical tradition[9] – in both its philosophical and juristic elements - to the current conditions and circumstances of modern government.^[10]

Following Aquinas, common good constitutionalism’s methodological approach to law and political theory is partly characterised by a “kind of abstracting from radically contingent circumstances, enterprises, and institutions, in favour of keeping the focus upon the essential principles of good government”.^[11] Aquinas himself did not bracket the relevance of his discussions about law and political authority to one type of political regime – like a city state, kingdom, or empire. Rather, the focus of his intellectual inquiry was on broader theoretical questions like the source of governmental authority, its boundaries, its ends and so forth.

The classical natural law tradition’s precepts must therefore be adapted and translated to political communities of many configurations, including those kinds of society’s aspiring to become complete communities (perfectae communitates) in the sense that they are apt to furnish the social, economic, material, conditions required for human flourishing. Over the years, natural law jurists have offered accounts of how to best adapt the essential precepts of the tradition to forms of political community thinkers like Aristotle and Aquinas were not familiar with.

Common good constitutionalism follows in this scholarly enterprise, by asking how the essential principles of the classical tradition can best be adapted to the kind of governing institutions typical of political community’s today, including sovereign nation-states governed through a master text Constitution.

This chapter proceeds in three parts. Part I outlines the core theoretical commitments of common good constitutionalism, which will make clearer the general methodological framework common good constitutionalists would employ to engage with questions concerning constitutional change. Part II asks what this framework has to say about constitutional rules of change that relate to the process for changing the Constitution. Part III takes the same approach in relation to constitutional rules which limit the permissible substantive content of a change.

---

[1] As Finnis notes, the phrase “classical natural law tradition” carries both descriptive and normative significance. Descriptively, it means that the origins of the conceptual apparatus and argumentative strategies and presuppositions of those who work within the ethical and philosophical tradition that originated in classical Greece and Rome. Normatively, it signals “one’s judgment that this theory or set of ideas...is actually sound and entitled to acceptance as a guide to personal and communal life”. John Finnis, “A Grand Tour of Legal Theory” in Philosophy of Law: Collected Essays: Volume IV (Oxford University Press, 2011) 92.

^[2] Heinrich Rommen, The Natural Law: A Study in Legal and Social History and Philosophy (Thomas R. Hanley trans., 1998) 214.

^[3] Yves Simon, General Theory of Authority (Notre Dame University Press, 1962).

^[4] See Charles de Koninck, The Primacy of the Common Good Against the Personalists: The Principle of the New Order, in 2 THE WRITINGS OF CHARLES DE KONINCK 63 (Ralph McInerny ed. & trans., 2016).

^[5] See John Finnis, Natural Law and Natural Rights (Oxford University Press 2d ed., 2011) 154– 155.

^[6] Famous texts of the tradition include Aquinas, Treatise on Laws, in ed R.W. Dyson, Aquinas: Political Writings (2015) p. 78; Gratian, DECRETUM: TREATISE ON LAWS, with Ordinary Gloss, trans by Augustine Thompson O.P. & James Gordley (1993) 29; Emperor Frederick II, THE LIBER AUGUSTALIS OR CONSTITUTIONS OF MELFI PROMULGATED FOR THE KINGDOM OF SICILY IN 1231, trans by Johnathan Powell (1971); Alfonso X, LAS SIETE PARTIDAS S.J., Robert I. Burns (ed.) and Samuel Parsons Scott (trans) (2012); Henry De Bracton, ON THE LAWS & CUSTOMS OF ENGLAND VOLUME 2, trans by Samuel Thorne (1968); Philippe de Beaumanoir, COUTUMES DE BEAUVAISIS, trans by F. R. P. Akehurst (1992).

[7] Adrian Vermeule, Common Good Constitutionalism (Cambridge: Polity, 2022).

[8] Adrian Vermeule, Enriching Legal Theory (2023) 46 Havard Journal of Law & Public Policy 1299, 1302.

[9] Classical legal jurists can be thought of as participating in a tradition in the sense Alasdair Macintyre uses that term in works like Whose Justice, Which Rationality (Duckworth, 1988) 5, in that they enjoyed a shared “settled conviction with regard” to what was meant and demanded by some foundational concepts of social and political life like the nature and purpose of law and justice.

[10] Common good constitutionalism self-consciously follows the admonition of 20^th century natural lawyers like Johannes Messner, who argued that “the chief task” for classical jurists was “the application of the natural law principles to the changing world in the political, social, economic, cultural field.” Johannes Messner, Postwar Natural Law Revival and Its Outcome NAT. L.F. 101, 105 (1959) (emphasis omitted).

^[11] John Finnis, Moral, Political, and Legal Theory (Oxford University Press, 1998) 129.