Common Good Constitutionalism vs. Natural Law Originalism

Remarks from the Originalism Summer Seminar, May 2024

In May 2024 I took part in a debate with Professor Joel Alicea (Catholic University of America) at the University of Georgetown School of Law. The debate was part of Professor Randy Barnett and Professor Larry Solum’s annual Originalism Summer Seminar. I am grateful to Randy and Larry for the invitation and hosting me and to Joel for a most stimulating debate.

Before I begin, I want to sincerely thank Randy, Larry, Arielle, Matthew, and everyone at the Centre for all the effort they have put into organizing this wonderful seminar series.

I think the fact Professor Alicea and I are having this exchange today is more evidence that constitutional theory on both sides of the Atlantic is experiencing – as Joel himself put it recently in his fascinating Vaughn lecture at Harvard Law School - a “natural law moment”.

Many constitutional scholars are taking, as their starting point for intellectual inquiry in our field, the view that “there are human objectives and ends that are dependent upon law; and there are demands of justice and social order for which law, including constitutional law, is the only fully viable mechanism.” (Sean Coyle, Natural Law and Modern Society, OUP, 2023, p.3) 

Both common good constitutionalists and natural law originalists alike consciously seek to follow in the tradition of the greats like St Thomas Aquinas and Francisco Suarez, or more recently the likes of Heinrich Rommen and John Finnis.

In our tradition, answers to questions about how to understand Constitutions and legal practices, and their point or purpose, lead us on to further ethical and moral questions about human goods; our nature as rational, social, political animals, and why - and in what ways - political and legal authority are intelligible and reasonable responses to aspects of this nature and what states of affairs allow it to flourish.

And it is in answers to these high-level and perennial questions that we natural lawyers seek out guidance, rules of thumb, and insights for more specific questions common to public law scholarship like, for instance, how to think about constitutional design, judicial role morality, or legal interpretation.

A.   Grounds of agreement

It is not false irenicism, then, for me to suggest, prior to elaborating our points of disagreement, that Joel and I agree on more than we diverge.

·      We agree on the nature of law and its purpose;

·      We agree the common good is the end of political authority;

·      We agree that political authority is not a necessary evil or social construct, but natural to us by reason and inclination and indispensable for human flourishing;

·      We agree natural law principles are universal and accessible by reason, but require a great deal of prudential specification to time, place, economic circumstance, social setting, the level of a people’s virtue and their kind of temperament, and so forth.

·      We probably agree that a range of forms of government can be ordered to the common good and be consistent with natural law’s demands; but that a mixed regime with a combination of the rule of one (monarchical), the best (aristos), and the many (demos) appears to be the most prudent. We also agree, following Aquinas, that a regime with democratic elements is the most enduring, commending itself to all.

B.   Where we disagree

We disagree on some more specific, but still important issues concerning how best to adapt the principles of the natural law tradition to the domain of public law. One of the most fiercely debated questions is how to adapt its principles to the domain of legal, especially, constitutional adjudication.

Here too, though, before I get to the disagreement, I want to stress there is still considerable concord on some of the basics of interpretation. Common good constitutionalism and natural law originalism share a concern with the importance of judicial respect for the positive law. Both agree that the starting point of the judicial role in the adjudication of statutory and constitutional law, is that the judge seeks to give effect to the reasoned choices and intentions of the legitimate authority that is given the charge of making laws for the community. To be ruled by, and through law, requires judges to “submit themselves to…legal norms such that their decisions are shaped by those norms and not their own preferences, even their own preferred views on justice” (Sean Coyle, Natural Law and Modern Society, OUP, 2023, p. 322).

Another axiom we agree on is that past legal norms promulgated by lawmakers or judges will have been made with their own intentions and objects in mind. Legal ordinances are not a series of cryptic words or materials fallen from the sky, that require meaning to be projected upon them by a creative interpreter. Rather, legal ordinances are promulgated as the result of intentional action on the part of political authorities who are striving for – in a well-functioning political system anyway – the promotion of some human good or goods, like promoting justice and peace.

Professor Vermeule and I have jointly and severally argued that, compared to the richly creative role of the lawmaker, then, for the natural lawyer the structure of judicial inquiry is highly bounded, in that it seeks to infer the reasoned intention and choice of the lawmaker. The classical natural law tradition’s basic understanding of interpretation is that it is an act that must be informed by the relationship of authority that exists between the lawmaker and legal subjects, taken together with the nature of language use, which the lawmaker employs to exercise its authority.

So, I think both common good constitutionalists and natural law originalists share a hostility toward so-called living-instrument approaches to interpretation, where judges can update or evolve constitutional provisions to shift their content, in line with whatever moral novelties that the judges think are superior.

Where we disagree is over the best reading of the natural law tradition when it comes to the following question: save for where the positive law explicitly permits it, can a political community justly, or prudently, attempt to exclude consideration of natural law precepts during legal adjudication, including the interpretation of constitutional law?

Common good constitutionalism’s answer to this question is that the best reading of the natural law tradition and its great thinkers, taken in the broad, is that it is neither prudent nor just to attempt to make natural law reasoning permissible only when the positive law commands it.

I think the better view is that the tradition instead holds that precepts of the natural law apply of their own force. On this view they are, whether one likes it or not, part of the legal system and what Professor John Finnis calls ipso jure sources of law; that is, sources of law that demand respect in the conscientious deliberations of judicial officials discharging their adjudicative functions, just as much as legislative and executive officials discharging their own. Precepts of natural law are “laws even if never spoken” by the sovereign, as Professor Sean Coyle recently put it (Sean Coyle, Natural Law in Modern Society, OUP, 2023, p. 342). This view would therefore reject as unsound the position judges can only have regard to natural law precepts when provided for by the positive law in A, B, or C circumstances, but not otherwise.

Of course, the judge’s task is to do justice according to the law of the community, and so courts primarily help to uphold the common good by impartially adjudicating disputes by reference to those positive legal materials promulgated by political authorities, in the past, in order to co-ordinate and settle how different issues are to be resolved in that community into the future: like statutory and constitutional text, the reasoned intent of the lawmaker (which may be imperfectly captured by the letter of the text), prior judicial precedents, and the like.

But common good constitutionalists like myself and Professor Vermeule argue that as principles of natural law apply ipso jure, that is, as a source of law with their own force and in their own right, then they are also eminently relevant to adjudication and interpretation. This is why John Finnis argues in Natural Law and Natural Rights that a healthy legal order will have its “system of laws…permeated by principles of practical reason that ‘derive their authority from their appropriateness (in justice and the common good), and not…from their origin in some past act of stipulation’.” (John Finnis, Natural Law and Natural Rights, OUP, 2011, p. 356).

Finnis says elsewhere, that the natural law tradition affirms the idea “[Legal] interpretation is an act that ‘can and should’ be ‘guided by moral principles and rules’ that are a matter of ‘objective reasonableness….’” (John Finnis, Natural Law and Natural Rights, OUP, 2011, p. 290). In other words, natural law principles do not supplant positive law, but run concurrently with and help guide legal reasoning toward its proper ends.

But what does it look like in practical terms for a system of positive law to be, in Finnis’ words, “permeated by principles of practical reason”, aka the natural law? I think the most important way natural law reasoning features in legal reasoning, is that it frames a series of juridical presumptions, against which we can infer the intent and object of the positive law.

Aquinas’ discussion on law and judgment in the Summa Theologiae seems to anticipate natural law precepts being drawn upon to construe positive law in two ways.

First, I read Aquinas as saying precepts of natural law should implicitly be at work when we are inferring the lawmaker’s intent through construing the text – what he calls the letter - of the law. Aquinas says that we should prefer interpretations of posited legal texts that are consistent with, in his words, the “beneficent intention” the lawmaker is presumed to have had in view; and avoid an interpretation that renders the law “burdensome” to people by virtue of its absurdity or injustice (ST II-I, Q. 96, a.6). Natural law principles are implicitly at work here because an interpreter can only presume that a particular interpretation of legal text is beneficial, and not burdensome, after first engaging their practical reasoning to reflect on the demands of human flourishing and justice, and how each might be engaged by different interpretations of the ordinance at bar.

This reading of Aquinas I think is echoed by Professor Finnis, who in his great essay A Grand Tour of Legal Theory (John Finnis, Philosophy of Law, Collected Essays: Volume IV, ch. 5) similarly says that conscientious legal interpreters trying to concurrently respect both positive and natural law, are “entitled and required” to treat legal propositions as “presumptively oriented towards justice” and the common good. A “properly juridical interpretation,” Finnis continues, will consequently “not be as ready to consider authoritative an unjust as it will a just meaning.” I think in natural law theory, this is how natural law reasoning is primarily envisaged as running concurrently with legal reasoning.

But Professor Richard Helmholz reminds us in his masterful work Natural Law in Courts this interpretative attitude was not a matter of mere theory for jurists in many Western legal systems. Rather, it was deeply woven into the fabric of legal practice. Judges and lawyers, Helmholz points out, simply took it for granted that a legal ordinance could not have been “intended to reach a result that contained either absurdity or iniquity” (Richard Helmholz, Natural Law in Courts, HUP, 2015, p. 74)

In other words, jurists presumed that lawmakers always intended to promulgate ordinances consistent with natural law, justice, and the common good, and construed texts and the search for meaning through that lens.

The second and rarer scenario in which Aquinas thinks natural law precepts can be invoked by a judge - is to render equity; that is, to render justice according to law where to follow the letter of the positive law is, exceptionally, contrary to right reason.

The great 20^th Century natural lawyer Heinrich Rommen says in his book on Natural Law that, in these “extreme cases”, the judge “goes back to the will of the lawmaker, who is assumed to will only what is moral” (Heinrich Rommen, Natural Law: A Study in Legal and Social History and Philosophy, Liberty Fund Inc, 1998, p. 188). Equity allows for case-specific adjustment of vague, ambiguous, or overly general language to particular circumstances, in order to promote the just ends the legislator is presumed to have had in view, that the positive law imperfectly expresses. Again, here, natural law precepts will be drawn upon by the judge in determining how and in which ways the letter of the law is, in the circumstances, contrary to right reason.

Judges draw on principles of natural law in each circumstance to guide their legal reasoning, erecting a juridical presumption that the positive law they are construing is an ordinance of reason oriented to the common good, and not a perversion of law that is ultra vires the lawmaker’s legitimate authority to make.

To conclude on this point, while common good constitutionalism and natural law originalism share a great deal, I think natural law originalism gives insufficient attention to these parts of our shared intellectual tradition – to the ipso jure quality of natural law and the emphasis on ensuring the artificial reason of law is not contrary to sound practical reasoning.

I will leave it there, but I look forward to hearing from my colleague and to a stimulating exchange.