FORAN’S COMMON GOOD AND COMPARATIVE CONSTITUTIONAL LAW

For the Mini-Symposium on Michael Foran, “Equality Before the Law”

Dondra Head Lighthouse, Sri Lanka (photo credit: tripadeal.co.nz). The Common Good is like the Lighthouse: signalling the harbour and achorage from the boundless and bottomless sea, those benefitting from it do not prevent access to it by others, and do not reduce its availability to others.

Remarks on ‘Political Discretion and the Common Good’ (Chapter 7) of Michael Foran (2023) Equality Before the Law: Equal Dignity, Wrongful Discrimination, and the Rule of Law (Hart-Bloomsbury), at a University of Glasgow symposium on 26^th January 2024.

I was honoured to be invited by Dr Michael Foran to comment on the last chapter of his debut monograph at a symposium in Glasgow last week. I hold Michael in high regard not only as a valued friend and collaborator on The New Digest, but also as one of the brightest emerging stars of the British academy. Michael invariably has something original to say about the issues he is interested in, and equally invariably, says it well. His first book demonstrates the confidence many of his colleagues have that in coming years Michael will play a significant role in shaping British public law and constitutional theory, and in these ways, also make a major potential contribution to comparative constitutional studies.

I read Michael’s book as a student of comparative constitutional law with a particular interest in the history and practice of constitutional government and the making of legal constitutions in the Global South. Comparative constitutional law is a field that is at an epistemological crossroads at the moment. As a field of scholarship and practice, it saw its greatest efflorescence in the period after the end of the Cold War. Due to the world-historical circumstances at the beginning of that growth-spurt – that of capitalist liberal democracy triumphing over socialist authoritarianism as the true representation of constitutional modernity – the field has been underpinned by a remarkable normative monism. That monistic normative core can be described as ‘liberal constitutional democracy’ and its fundamental aim has been teleological: for constitutions to achieve constitutionalism, they must be, or at least must aspire to become, liberal and democratic.

That confident normative certainty is now in flux, perhaps even in crisis. There are two dimensions to this crisis, one external to the field and the other very much internal. The external dimension is the shift of power and prestige in the global political, economic, and military order towards Asia. Of the two emerging Asian superpowers, one is a non-liberal democracy (India) and the other is a non-democratic constitutional regime (China). Both increasingly see themselves not as nation-states but as civilisational-states that have ambitions to reshape the organising principles of the Westphalian legal order with the waning of Western power after five centuries of global dominance. In India, the political constitution re-rooted in Hindu nationalism seeks to supplant the Nehruvian legal constitution. The resilience of the Chinese party-regime alongside a functioning legal and economic system will force a reconsideration of the assumption that a political system, to be a constitutional system, must be substantively liberal and procedurally democratic. In both these ways, the central question for comparative constitutional law in the future seems not to be whether constitutionalism is liberal or not, but whether government is constitutional or not.

The external empirical realignments give rise to a critical internal challenge for post-Cold War comparative constitutional law, by deeply unsettling the stable consensus that has obtained so far about its internal normative unity. Put another way, the conflation of constitutionalism (a general politico-legal analytical concept) with liberalism (a particular normative instantiation of that concept) meant that, in the post-Cold War era, theoretical constitutionalism became all about individualism, the central normative good that defines liberalism’s character as a modernist conception of the good life (in the same way, for example, that egalitarianism defines socialism and non-domination republicanism). Constitution-making and implementation practice guided by this theory of constitutionalism, which itself experienced something of an explosion during this period, then became predominantly focused on individual rights, courts as counter-majoritarian devices, authority-constraining separations, and utilitarian or aggregative conceptions of the public interest. With tradition, authority, culture, and inherited order becoming regarded as inherently suspect, the golden thread running through globalised practices of constitution-making became the creation of legal orders “prioritising impersonal pro-sociality over interpersonal relationships.”      

But with the tectonic shifts taking place in the world of realpolitik, a teleologically individualist constitutionalism no longer answers to the practical challenges that the real world places before comparative constitutional law. While of course the rise of China and India may have the effect of mainstreaming and globalising this internal challenge, it is not a new one in Asia. Scholars such as Li-ann Thio have long ploughed a lonely furrow in arguing that while liberal constitutional democracy has been hegemonic in the discourse of constitutional comparativism, that discourse has never managed to fully capture the realities of constitutional practice in Asia. It might be added that the very cause of that analytical blind-spot has been post-Cold War comparative constitutional law’s methodological and normative fusion with liberal constitutional democracy – although there are welcome signs that an epistemic shift towards a more contextually nuanced method is emerging in the field (see e.g., Tom Ginsburg and Benjamin Schonthal (Eds.) (2022) Buddhism and Comparative Constitutional Law (CUP)).

In her latest iteration of a long line of work in the Oxford Handbook of Constitutional Law in Asia (2023), Thio makes two key points. First, that studying the varieties of Asian constitutionalisms “helps temper this ethnocentric parochialism, pluralising our understanding of constitutionalism and clarifying what is an anti-constitutionalist model”, and second, that Asian constitutionalisms reveal an “active state espousal of a vision of the ‘Good’ and where constitutions may influence the shape of human relations not only in terms of rights but right relationships and social harmony.”

To these positive arguments in favour of a change of discursive direction in the field must be added the more ominous contemporary developments in Asian politics and governance that must concern any comparative constitutionalist. Leaders, parties, ideologies, and movements that espouse many different forms of unconstrained political order are resurgent – from hegemonic and assimilationist types of ethno-religious nationalism, to a variety of soft and hard forms of authoritarianism. Constitutional government is also assailed from forms of political decay, such as fragmentation and factionalisation, and corruption and kleptocracy. The institutional responses of mainstream comparative constitutionalism to these challenges so far have been to double down on constitutional liberalism’s standard solutions: more rights, more counter-majoritarian judicial power, more technocratisation of governance, and more separations of powers and domains.

It is now apparent that these responses do not work. If they did, all the main global indices would not be reporting a regression in governance standards unfolding worldwide. But the reason why liberal solutions do not work is not so much to be found in liberalism’s institutional prescriptions as in the radically decreasing potency of liberalism’s normative power. Even those who viscerally oppose ethnonationalism and authoritarianism are unpersuaded by liberal individualism as an account of constitutional government that can combat the historical and cultural power of their anti-individualist and anti-Western opponents. If this is the contra-individualist direction of travel in comparative constitutional law today, then Michael’s book, and in particular, his defence of ‘equal dignity’ as the basis of reorienting both constitutional theory and constitutional order towards the common good (and away from the pursuit of individualism) seems to be propitiously well-timed. This is because, as I noted before, the central debate in comparative constitutional law is moving towards the question of what is constitutional and non-constitutional government and away from what is liberal and illiberal constitutionalism.

Aspects of Michael’s theory of the common good as the foundational and normative aim that should ground all aspects of constitutional order, as it relates to the current concerns of comparative constitutional law, can be (incompletely) summarised in the following terms:

• A constitutional order ordered to the common good is one that is oriented towards human flourishing through the provision of dignity, equality, peace, order, good government, and prosperity for every member of society and society as a whole.

• The common good is a unitary good, in that it is both shared and indivisible within a society; it is the opposite of both a utilitarian good and an aggregative (majoritarian) good. Therefore, the individual benefitting from the common good does not prevent access to it by others and does not reduce its availability to others.    

• This is a better conception of constitutionalism than those directed to the maximisation of the autonomy of the individual or egalitarianism collectivism, and it is morally superior to conceptions of non-constitutional political order that permit, in various ways, public authority to be utilised for private or socially selective ends.   

• Constitutional government is not only about protecting rights and constraining government, but also about empowering and enjoining constitutional authority, both legal and political, to ensure peace, justice, and abundance.

• A constitutional state oriented to the common good in the above ways cannot be neutral as to the ends of politics and law, it is morally committed to achieving the common good in the temporal life of the community.

• In a well-ordered society, the individual and the community do not stand in opposition to each other but are co-constitutive of each other. What is good for the individual is inseparable from what is good for the community. Individuals enjoy equal dignity and moral equality, which are actualised when both legal and political institutions act according to fundamental and prudential principles that protect and further the interests of everyone in the community, not just the majority.

• A flourishing society is also one characterised by civic friendship, trust in order and authority, and thriving social institutions beyond the state.    

To the extent that these aspects of Michael’s constitutional theory echo the themes raised by Professor Thio mentioned earlier, his work should have much resonance with comparative constitutional lawyers, especially in Asia, and not only those specialising in equality, dignity, and discrimination law.

However, it would be prudent for me to end with a note of caution. The pluralisation of the normative underpinnings of the field triggered by shifts in patterns of global power is not just about the self-reflexive inclusion of non-Western historical experiences and cultural perspectives within its epistemology. The process may be much deeper and involve demands for an ontological pluralisation of the concept of constitutionalism itself, in appreciation of the plurality of self-contained constitutional universes that inhabit the world. In such a ‘pluriverse’ of constitutionalisms, Michael’s account may well turn out to be – much like post-Cold War liberal constitutionalism – one conception among many making universalist claims. But in Michael’s capable hands, this modern interpretation of the Aristotelian-Thomistic tradition of constitutionalism, and the future work he will surely do building on this initial statement, has more potential than others to bridge civilisational divides.