GRANTING OR DENYING INTERIM RELIEF?

Interpreting the Mexican Constitution for the Common Good

The New Digest is delighted to present a guest essay by Isidro Munõz Acevedo. Mr. Acevedo is a Federal Administrative Judge from Mexico. He writes here in his personal capacity.

“Utrum lex ordinetur semper ad bonum commune”

— Thomas Aquinas

Introduction

Under Article 1 of the Mexican Constitution, all authorities are bound to respect, protect, and guarantee human rights. The primary mechanism to challenge human rights violations in Mexico is the amparo trial. Through this proceeding, individuals can challenge acts or omissions by public authorities that allegedly infringe upon their fundamental rights, establishing the amparo as the cornerstone of domestic human rights adjudication.

During the amparo trial federal judges may grant interim relief against statutes or administrative acts. The constitutional standard for granting such relief balances the likelihood of success on the merits (fumus boni iuris) against potential harm to the ‘social interest’. Consequently, federal courts are instructed to deny interim injunctions if the decision would adversely affect the social interest. Thus, the fundamental question that this legal framework poses to federal judges is the following: what constitutes the ‘social interest’?

Since the constitutional text provides sparse guidance and judicial precedents often rely on highly abstract formulations, I have argued, in a recent paper, that to answer such a question, federal judges need to adopt a certain constitutional interpretation and thus a certain constitutional theory. This is where I believe that Common Good Constitutionalism is especially useful.

Rooted in our classical legal tradition, this framework provides a substantive definition of the social interest —more accurately understood as the common good— based on the intrinsic dignity of all members of society. Furthermore, it provides a moral and philosophical foundation that allows federal judges to discern the true essence of the common good, serving as a powerful bulwark against the utilitarian instrumentalization of constitutional law and public power.

On this occasion, I would like to explain, briefly, three conceptions –or even better, misconceptions- about the common good:

I. The common good cannot be reduced to the benefit of the many at the expense of the few;

II. The common good does not stand in opposition to human rights; and

III. The common good is not a carte blanche justifying the imposition of subjective official preferences upon society.

I. The Common Good Demands Quality, Not Quantity

Distinguishing whether a public measure truly serves the common good requires focusing on qualitative rather than quantitative considerations. As Adrian Vermeule observes, “the sum of private utilities, no matter how large, can never add up to the common good.” According to the classical legal tradition, Conor Casey and Adrian Vermeule note that a genuine common good “is unitary (’one in number’) and capable of being shared without being diminished.”

Consequently, authentic common good reasoning excludes aggregative or utilitarian calculus. Contrary to widespread assumptions, concepts such as the common good, the public interest or social order do not equate maximizing the interest of the many while sacrificing the few. When the inherent and equal dignity of every community member is recognized, public action must account for each individual while establishing the conditions necessary for communal flourishing. Consequently, the common good explicitly precludes sacrificing the basic human goods of the few for the benefit of the many.

The common good rests on the premise that enjoying genuinely shared goods —such as peace, justice, public health, safety, and economic security— “can only be achieved when one shares in their enjoyment with a community of moral equals,” as Michael P. Foran argues. Rather than viewing individual rights and community interests as inherently adversarial, this perspective recognizes that “the good of the community is, in itself, the good for individuals”. Furthermore, the core aspect of the common good directs analytical focus “not just [to] things that can be shared without being diminished, but things which are good for those who participate in or enjoy them.”

To claim that a statute or state action serves the public interest simply because it prioritizes the “interest” of the many over the few —and to deny an interim injunction on that basis— fundamentally misconstrues this legal concept. The common good recognizes the dignity and equal moral value of all members of the community, rejecting their instrumentalization. Subjecting the few to the benefit of the many constitutes a form of tyranny that directly undermines the common good.

Hence the grave danger that would arise from amparo judges accepting that the welfare of the many can displace or nullify the human rights of the few. Such arguments are constitutionally reprehensible; consequently, adjudicators should not yield to utilitarian rationales of this nature, and even less so rely upon them to deny the provisional protection of a human right within an amparo trial. The common good considers spurious the notion of governmental authorization to inflict harm upon certain individuals for the sake of a “greater good.”

Reading the Constitution through a utilitarian lens —thereby conflating the social interest with the sum of individual interests— paves a direct path to trivializing human dignity. As Foran reasons “a constitutionalism premised upon a view of persons as mere vessels for interests can very quickly collapse into a form of aggregative consequentialism, assigning no particular value to individuals themselves and instead seeking only the maximization of overall happiness or utility”. Ultimately, the common good is defined by quality, not quantity.

II. The Common Good Does Not Oppose Human Rights

A second major misconception is that human rights must yield to the social interest or the common good. As John Finnis observes, “we should not say that human rights, or their exercise, are subject to the common good; for the maintenance of human rights is a fundamental component of the common good.” Fundamental rights “are not subordinate to or in conflict with the common good, properly understood. It is therefore a mistake to view the common good as something removed from the fundamental rights of individuals such that it might act upon or supersede over them”, as Michael P. Foran explains.

Common Good Constitutionalism posits that human rights and the common good are co-constitutive: human rights are part of the common good. One cannot flourish in community without human rights. Hence, as Foran explains, the common good “sets boundaries on and helps to define the limits of rights, but the common good is itself defined partly by reference to the natural rights of individual members of a civic community. You cannot torture your way to the common good.”

Accordingly, the common good does not operate as an external limit on human rights, but rather as an essential element that defines their substantive scope, as Diego Poole has noted. Communal well-being necessarily encompasses the flourishing of each and every member. In this framework, one’s neighbor does not represent a limit to one’s rights, but rather a component that defines its content. The good of others is inextricably linked to our personal good; the common good recognizes that the other is part of the same whole as I am.

This harmony between individual rights and social interest has been recognized within Mexican jurisprudence. As the Second Chamber of the Supreme Court of Mexico has noted:

In a constitutional State, the jurisdictional protection of fundamental rights constitutes the core rationale and guiding principle of constitutional adjudication through mechanisms such as the amparo trial. It is often asserted that an irreconcilable conflict exists between fundamental individual rights and notions such as the common good, social interest, or public order. However, this is not always the case, as in some instances, these concepts can be harmonized: protecting individual rights often serves the public welfare or the social interest, and protecting the latter protects the individual interest of the holder of the fundamental right as a member of our society –understanding that this does not imply that fundamental rights are disposable by the majority.

As former Supreme Court Justice of Mexico Margarita Ríos Farjat has considered, the constitutionalized legal order in Mexico must be oriented toward achieving individual and collective fulfillment and happiness.

III. The Common Good Is Not a Blank Check for Authoritarians

The common good cannot be established by mere administrative or legislative decree. A public act or legislative measure does not embody the common good simply because an authority labels it as such. Whether an act serves the common good is an objective, qualitative determination, not a nominal designation.

The ultimate purpose of democratic institutions and governmental authority is to foster conditions under which all members of the political community can flourish. Just governance requires prioritizing the well-being of the governed, recognizing their ontological equality, and rejecting any attempt to instrumentalize individuals for state objectives. The common good presupposes the moral equality of persons and conceives politics as properly ordered towards those goods, as Michael P. Foran writes.

As Conor Casey and Adrian Vermeule emphasize, the common good “is not simply a blank, or a placeholder for whatever subjective preferences any particular official might desire to impose.” Public authority must be exercised through “rational ordinances oriented to the common good.” Invoking state power for private interests, political expedience, or official whim violates the common good and manifests a classic trait of arbitrary rule.

A ruler or a public official is merely a public servant and, as such, is expected to prioritize the interests of the governed above their own. Common Good Constitutionalism recognizes that law must be directed towards public ends. And as Foran reasons, public ends, properly understood, are those “which are directed towards the benefit of all, affording appropriate respect for the moral equality of persons while seeking to facilitate flourishing of each and every member of the community.”

The Rule of Law cannot remain indifferent to the substantive ends of public action. Common Good Constitutionalism firmly rejects the notion that the end justifies the means. Law is not a mere means to pursue whatever ends a political authority wishes. The common good is thus the proper end of any juridical order, manifesting within legal officials a requirement to act as guardians or custodians for the interests of the governed.

The common good is not the same as the rule of the majority. The Rule of Law is a State governed by practical reason, not by mere numbers. Such an enriched notion of the common good prevents democracy from becoming a blind regime surrendered to mere numbers, capable of doing whatever it wants, changing rights, rules or destroying institutions at will in the name of a “greater good” and, in the process, ultimately destroying itself and transforming into a tyranny — the tyranny of the majority or, worse, of those who claim to speak in the name of the “people.”

Conclusion

‘Social interest,’ better understood as the common good, does not stand opposed to fundamental rights, nor does it equate to the aggregate of private utility or provide an uncritical justification for state power. Instead, it mandates that public action be directed towards the flourishing of each and every member of the community.

Federal judges should not deny interim relief in the amparo trial without adopting a constitutional interpretation that respects our legal tradition. Interpreting the Mexican Constitution through the lens of Common Good Constitutionalism yields distinct advantages for both judicial decision-making and society at large: under this approach, ‘social interest’ ceases to be a merely abstract notion susceptible to utilitarian misuse, human rights degradation, or authoritarian control. Instead, this constitutional provision is properly understood as the ensemble of social, economic and material conditions necessary for human flourishing.