Common Good Provisions in Legal Constitutions

A Grand Tour

Dr Asanga Welikala is a Senior Lecturer in Public Law at the School of Law, University of Edinburgh, and the Acting Director of the Edinburgh Centre for Constitutional Law. He is also a Research Fellow of the Centre for Policy Alternatives (CPA), Sri Lanka.

Map: Countries with Express Constitutional Common Good Provisions

In this note, I share some thoughts on the preliminary findings of my ongoing research on the concept of the ‘common good’ in comparative constitutional law. In the broader research project of which these findings are a part, my hypotheses stated crudely are the following. First, that comparative constitutional law is currently in a state of normative crisis – owing to the imminent end of liberal constitutionalism’s immanence as the normative-institutional core of the field – which, in turn, has consequences for the field’s analytical and prescriptive power and thus for its future. Second, that the theory of common good constitutionalism – conceived broadly to capture a variety of internal conceptions, so as to maximise the potential empirical applications of the type – offers a fresh analytical and normative framework for addressing this crisis. The rough notes that follow will raise, but will not answer, a host of methodological and substantive questions in the minds of the reader. I will develop my own responses to some of these issues in work already underway or planned for the future, including the first extended analysis in a forthcoming collection of essays edited by Leonard Taylor and Hans-Martien Ten Napel. Others aspects will appear in future work concerning the Sri Lankan constitution, Commonwealth constitutionalism, climate constitutionalism, and constitutionalism in the Middle East and North Africa region. 

One aspect of my approach to the second hypothesis involves an exploration of the existing written legal constitutions that contain the phrase the ‘common good’ as a textual expression. Of course, the common good is both wider and deeper than the reflection of that pair of words in a paper constitution. It is wider in that the same or similar idea is expressed through a variety of cognate phrases in constitutional instruments (e.g., the ‘general welfare’, the ‘public good’, the ‘common weal’, ‘peace, order, and good government’, etc.), and these diverse formulations may express different normative conceptions and institutional determinations of the general concept in application to different contexts. It is deeper in the sense that, as a concept of politico-legal constitutional morality, it is often found imbricated between private and public law, implied principles of law and posited legal rules, and between law and the cultural conventions of political life.

The concept of the common good may also be more deeply implicated in a system of constitutional practice through history and culture than what may be expressed in the positive law of the legal constitution. The latter is important; more often than not nowadays, it is the supreme form of legal expression of a constitutional concept. Yet the written constitution is, after all, just the statement of the rules of government for the time being in force, as were determined by political elites at a particular time and place. The history and culture of government as well as normative ideas of good political order, on the other hand, have evolved since time immemorial. Some conception of the temporal common good appears to have informed both the earliest attempts at the institutionalisation of legal order, as well as every global tradition of order, whether based on divinity, cosmology, nature, or experience and reason. And in the post-colonial world, imperial and indigenous traditions coexist within and shape the nature of the contemporary legal system in many different permutations. It may therefore be that even constitutions that do not mention the common good in express terms, nevertheless function according to an institutional morality and constitutional culture based on the common good. And, unfortunately, the reverse is also true: even a cursory glance at the constitutional practice of some countries in which written constitutions refer eloquently to the common good would reveal conspicuous gaps between practice and precept.  

But a search must begin somewhere and the obvious starting point appears to be to look at the instances where the ‘common good’ appears explicitly in the written text. This search, it is hoped, would give us interesting clues about the extent to which the term is spread around the world, what role it plays in constitutions, and in what countries and conditions, and why, constitution-makers might have thought to include it.              

In searching for the constitutions that contain the phrase ‘common good’, I have used Constitute, the standard database in comparative constitutional law. Constitute contains the texts of 230 constitutions, of which 193 are currently in force, 28 are no longer in force, and nine are drafts. There were common good provisions in three of the constitutions no longer in force (Republic of Congo 2001, Guinea 2010, and Mali 1992) and in two of the drafts that have not yet been adopted (Chile 2018 and Chile 2022). I have disregarded these. Of the 193 constitutions in force, 41 feature express references to the ‘common good’. This principle of limitation excludes from this survey a number of instruments that would otherwise be strong instantiations of some version of common good constitutionalism. The Hungarian constitution of 2011 would be a notable example, and there are other arguable cases, such as the preamble to the Fijian constitution of 2013.

I have organised these 41 constitutions into a number of tables, which show their years of enactment and the global region and continent to which they belong, the system of government and territorial organisation of the state they establish, and the legal family to which they belong. I have also tabulated the number of the times the phrase ‘common good’ appears in each text, along with the section number and the location of the provision within the constitution. Taking a slightly more qualitative turn, I have categorised the dataset into: ‘type’ (the type of legal obligation, if any, or other purpose, of the common good provision); ‘subject’ (to whom the common good provision is directed); ‘enforceability’ (whether the common good provision is enforceable or declaratory); and ‘orientation’ (the broader ideological or normative purpose within which the common good provision is nested). Beyond information to help hermeneutical and contextual analysis of the legal texts, I have added some basic economic indicators for an understanding of the ‘constitutional political economy’ of the 41 countries in terms of their national wealth and their wealth distribution. The purpose here is not the analysis of the economic common good, which is best left to economists, but to understand the design, purpose, and performance of those provisions as constitutional standards or rules framing the economic life of a polity. In what follows, I reflect briefly on the data presented in Table 1 of my several tables, ‘Written Constitutional Common Good Provisions: Time and Space’, which is reproduced below.       

Table 1: Countries, Dates of Enactment, Global Regions, and Continents 

The date of birth of the constitution helps us locate it in the conditions that prevailed within the country at the time (e.g., transitions from one order to another, the nature of constitution-making elites, etc.), as well as the broader historical, regional, and global contexts (e.g., decolonisation, waves of democratisation, etc.). Periodisation also helps us relate a discrete constitution to prevalent epistemological or technical trends in constitutional comparativism (e.g., emulation among post-colonies of the same imperial power, the post-Cold War ascendance of liberal constitutionalism, etc.).

Moving from time to space, looking at the region in which the constitution is placed will give us further contextual information, including common languages that facilitate legal exchange, cultural affinities that encourage legal comparison and borrowing, knock-on effects in constitutional developments among neighbouring countries, and geopolitical communities of interest among countries that may be reflected in constitutional similarities.  

Table 1 lists the 41 constitutions with common good provisions by the chronological order of their enactment. The earliest is the Latvian constitution of 1922, reinstated after democratisation in 1991. The next four are important constitutions for comparative purposes on a broader scale. The Irish constitution of 1937 does not only contain the most numerous textual references to the common good of any in the list, but even a cursory glance demonstrates the normative centrality of that concept for the entire constitutional order established by it. It has also inspired the use of the ‘directive principles’ device in other constitutions, notably India. Directive principles are an institutional design option that is often associated with the orientation of a constitution to the common good, used, in this dataset, in India, Nigeria, Sri Lanka, Tanzania, and Uganda. The Nepali ‘panchayat constitution’ that was in force between 1962 and 1990 reproduced the Irish constitution’s ‘Directive Principles of Social Policy’ (art.45) verbatim. New research shows other Asian elites, such as the Burmese, in the early examples of British decolonisation to have drawn from the Irish experience. The Italian constitution of 1947 marked its post-World War II transition to constitutional democracy, in the modern country of the Roman Empire, and in many ways the place of origin of the classical, Catholic, and republican conceptions of common good constitutionalism. The Indian constitution of 1949, following in the wake of the commencement of British decolonisation, not only established a new constitutional form – the Commonwealth Republic – but a new substantive model, in a society of severe inequalities, of ‘transformative constitutionalism’. The common good provision of the French constitution of 1958, which also resurrected the defunct Weimar constitution’s regime-type of semi-presidentialism for the post-war world, are contained in the Declaration of Human and Civic Rights of 1789, which the constitution incorporates. It is thus the oldest legal textual formulation of a common good provision in any constitution currently in force.    

There are no constitutions made in the 1960s decade still in force that contain an express common good provision. From the 1970s to the latest in Burundi in 2018, however, express common good provisions have appeared in constitutions with a consistent regularity within and over the decades: six in the 1970s, 10 in the 1980s, 11 in the 1990s, two in the 2000s, and nine in the 2010s. The highest frequency of constitutional enactment of common good provisions occurred in the periods 1975-1987 (at least one every year except 1979) and 1990-1999 (at least one every year except 1994 and 1998). Thus, two-thirds (27) of the constitutions containing express common good provisions were enacted between 1975 and 1999. More than one constitution with common good provisions were adopted in some years, with three being the highest number in a single year in 1978 (Dominica, St Lucia, Sri Lanka) and 1990 (Colombia, North Macedonia, Yemen). Two constitutions were adopted in each of 1980 (Cape Verde, Chile), 1981 (Antigua and Barbuda, Belize), 1987 (Nicaragua, Philippines), 1999 (Nigeria, Venezuela), 2005 (DR Congo, Eswatini), and 2010 (Angola, Niger).

In the Spanish-speaking Americas, four out of the six constitutions in Central America (El Salvador, Guatemala, Honduras, Nicaragua) have express common good provisions, and five out of the 11 in South America (Bolivia, Chile, Colombia, Peru, Venezuela). Five out of 12 constitutions in the English-speaking Commonwealth Caribbean have express common good provisions (Antigua and Barbuda, Belize, Dominica, St Lucia, Trinidad and Tobago, including Belize and Guyana in mainland Central and South America). Five out of the six European constitutions are EU member-states (France, Ireland, Italy, Latvia, Poland) while one is in the process of accession (North Macedonia). Regional outliers are Yemen in the Middle East and Papua New Guinea in Oceania, although as a candidate state for ASEAN membership, the latter could be included alongside ASEAN members Philippines and Thailand in South East Asia. The two other Asian countries are India and Sri Lanka, both SAARC members in South Asia. Coincidentally, these are also the only two countries in South Asia that have remained uninterrupted electoral democracies since independence. In Africa, the largest concentration of seven constitutions in the dataset is in West Africa (Benin, Cape Verde, The Gambia, Liberia, Niger, Nigeria, Togo) while East Africa has three (Burundi, Tanzania, Uganda), and two in Southern Africa (Angola, Eswatini). The other three are in North Africa (Tunisia), Horn of Africa (Somalia), and Central Africa (DR Congo). There is a fairly even spread among the legal language regions, with seven in Anglophone Africa (Eswatini, The Gambia, Liberia, Nigeria, Somalia, Tanzania, Uganda), six in Francophone Africa (Benin, Burundi, DR Congo, Niger, Togo, Tunisia), and two in Lusophone Africa (Angola, Cape Verde).

The 41 constitutions of the dataset cover every continent (Papua New Guinea being part of the Australian continent) and operate in four out of the five UN official languages (English, French, Spanish, and Arabic). They reflect a rich confluence of historic legal traditions of the world, from Western classical and Catholic thought to Islamic, Indic, and Confucian principles. They straddle Global North and South and govern economies from some of the richest to some of the poorest, and importantly, several of the most unequal societies alongside a few of the most equal in terms of share of national wealth. Within the unity provided by their legal constitutions containing the express words ‘common good’ is a challenging internal diversity of cultures, histories, traditions, societies, and economies. They represent, I think, a plausible dataset for further empirical research, the development of explanatory and normative theory, and the rethinking of the institutional design technology of comparative constitutional law.

Recently, Adrian Vermeule’s Common Good Constitutionalism (2022) aims to recover the Western classical legal tradition and adapt it to contemporary constitutional challenges, in the context of the manifest failures of both progressive and conservative iterations of liberal constitutionalism to secure the ends of constitutional government. But such has been the dominance of liberal constitutionalism as the analytical, normative, and institutional core of constitutional theory and comparative constitutional law in the post-Cold War era, that accounts such as Vermeule’s are met with widespread incomprehension, and thus even with suspicion. This is hardly an informed reaction. The notion of the common good, and express references to it in the text of written constitutions, are more widespread and enduring than many assume. Liberal constitutionalism has dominated the arena for less than the lifetime of a generation. This is one reason why a systematic survey of these provisions as they appear in written constitutions currently in force could be a useful response to the theoretical and doctrinal challenge posed by Vermeule for comparative constitutional law.

Comparative constitutional law is in more intellectual flux today than it has ever been since the start of its most recent growth spurt at the end of the Cold War. In the consolidated democracies of the West, normative liberal constitutionalism has metastasised into a post-modern ideology of extending individual identity rights as the object of constitutionalism, which is itself understood as a progressive project. Other countervailing aspects that defined the balance of Western constitutionalism so far, notably the values of civility, prudence, and order, are in retreat. Critically, under late liberalism, the prudential principle that the relation between individual and community should be defined by ‘commonness’ and ‘goodness’ is being displaced by the values of individual self-fulfilment through unfettered autonomy. The liberal legal conception of constitutionalism has got away with masquerading as the concept of constitutionalism since the end of the Cold War. But late liberalism’s culturally particularist and historically contingent claims make it a normative account that can no longer even pretend to stand as a general foundation for a globally relevant and increasingly ontologically plural field of comparative constitutional law.    

In the Global South, politically ascendant ideologies that oppose liberalism do not stop at the critique of liberal constitutionalism, but attack constitutionalism itself, with alternative conceptions of unlimited power and unconstrained authority. Some such accounts seek legitimacy for authoritarian rule from instrumental and self-serving, yet powerful appeals to culture and history. The erosion or breakdown of constitutional government is manifested everywhere in rising authoritarianism, military interventions, conflict and violence, corruption and state-capture, factionalism and ochlocracy, and international delinquency. In the rising powers of the Global South, such as India and China, there are ambitions to establish the ‘civilizational state’ as a political model that strikes a new balance between tradition and modernity, as an aspect of correcting and rebalancing an international order created and dominated by the West for five centuries. Comparative constitutional law should welcome attempts to (re)construct models of constitutional order drawing upon conceptions other than legal liberalism, and from traditions beyond the West, some of which predate the Greeks and the Romans. But there is very little in the praxis of the emergent civilizational states that gives confidence that they are cogent constitutional models, even if they may be plausible political models – and the less said of their procrustean, petulant, intolerant, and infantile political cultures the better. The core cause for disquiet, however, is that they have no account of how political power is converted into legal authority in the civilizational state, perhaps because the very idea of the model is to blur the distinction in ways that favour power over authority. This is what makes existing iterations of the civilizational state models of non-constitutional government.

For the most part in contemporary comparative constitutional law, these anti-constitutional ideas and forces are met either by recalcitrant defences of unreconstructed liberalism, or by inadequately and unpersuasively modified versions of liberalism. But neither the various anti-constitutionalist discourses, nor liberal constitutionalism, provide answers to the constitutional dysfunction they themselves create. Neither the atomism of late liberalism nor the atavism of civilizational power is a good thing for constitutionalism. For comparative constitutional law, then, it is time to look for alternatives. In this quest, common good constitutionalism – in its most basic form, the idea that the fundamental purpose of constitutionalism is what is good and fair for the political community as a whole, rather than the private interest of rulers or the individual autonomy of the ruled – is today one of the most promising avenues of scholarly enquiry in constitutional studies.