THE ‘COMMON GOOD’ IN LEGAL CONSTITUTIONS

WHAT THE TEXTS REVEAL

John Hearne. The ‘lyrical’ drafter of the Irish constitution.

In a previous post (3^rd October 2023), I mentioned my ongoing work on common good constitutionalism and comparative constitutional design. That work was, and is, premised on two analytical vectors. The first is that the paradigm shift of the global order from a liberal rules-based unipolarity to a realist geopolitical-transactional multipolarity marks the end of the hegemonic influence of liberal constitutionalism over comparative constitutional studies and practice. The advent and actions of the second Trump presidency since the writing of that post recall the famous bit of dialogue in Hemingway’s The Sun Also Rises (1926): “How did you go bankrupt?” Bill asked. “Two ways,” Mike said. “Gradually and then suddenly.”[i]

The second analytical premise, or at least hypothesis, is that the displacement of liberal constitutionalism creates the space for varieties of common good constitutionalism to become the new explanatory and normative framework at the fundament of comparative constitutional studies and practice. To this end, the first phase of my research (introduced in the previous post) was to look at the legal constitutions currently in force that contain the express phrase the ‘common good’, with a view to systematically understanding how, why, and to what purposes the concept is deployed by constitution-makers.

I have now completed that preliminary survey, which will be published in due course in a collection edited by two friends of The New Digest, Leonard Taylor and Hans-Martien ten Napel. In this post, I summarise some of my findings about what existing constitutional texts say about the common good.

Common Good Provisions by Type

As the tables shows, existing textual common good provisions can be divided by type into five categories: preambular common good provisions; foundational common good provisions; common good provisions as directive principles; common good provisions as fundamental rights, duties, or limitations; and other constitutional aims.

Preambular Common Good Provisions

Preambles are introductory statements about various background aspects of the legal constitution which do not form part of its substantive (and numbered) provisions. Of the thirteen in our dataset, five – the constitutions of Trinidad and Tobago, Dominica, St Lucia, Antigua and Barbuda, and Belize – form a discrete subgroup due to some striking similarities. They are all Caribbean British post-colonies that enacted their current constitutions within a period of five years (1976-1981) as part of decolonial transitions. They each have a single preambular common good provision, the wording of which is almost identical. The broader preambles are also quite similar and the common good reference is located within a commitment to social security and justice, and economic redistribution and non-exploitation.

Another kind of transition – from authoritarianism to democracy – was the context for the drafting of preambular common good provisions in Guatemala, the Philippines, North Macedonia, Latvia, and Poland. This subset of common good provisions therefore has a strong link to hopes of democratic transformation, and in some cases to references to the democratic struggle against authoritarianism or to the revival of a previous democratic patrimony. Aside from that, both the North Macedonian and Polish clauses are noteworthy for casting the common good not so much as a social objective but as a type of constitutional order: common good qua res publica. In the Guatemalan case, the state is cast as “[the one] responsible for promoting the common good.” This harks back to the classical notion of the common good as res publica or commonwealth.

Some of the most classical formulations of the common good are in the two pre-World War II constitutions, Latvia and Ireland. Within preambles that make explicit reference to Christianity, these provisions are worded to express the common good as a core organising principle of the polity and of the relationship between the individual and society, and thereby of the nature of constitutional authority.

Noteworthy about the preambular common good texts is the presence of religion. This is significant in that pre-modern, which is to say pre-European Enlightenment, conceptions of the common good derive from political theologies, whether theistic or not. To the extent that the references to the common good stand alongside references to religion in our preambles, all of which in constitutions written in the twentieth century, it may point us to how we might understand the internal dynamics of these constitutional cultures. In cases where preambles and their aspirational commitments do form part of constitutional practice by informing application and interpretation of the operative constitution, the references to the common good therefore will need to be understood in harmony with religious commitments, not only secular ones. This would be especially significant in societies where a strong separation between the religious and the secular is not part of the sociology of constitutional culture.

The texts reveal three different settlements of the question of hierarchy between divine and secular authority: supremacy, invocation, and mention. Notionally at least, the choice of textual settlement should have hermeneutical implications for the way the common good is understood in these constitutions. The supremacy of God is acknowledged in the texts of Antigua and Barbuda, Belize, Dominica, Ireland, St Lucia, and Trinidad and Tobago. God is invoked in The Gambia, Guatemala, the Philippines, and Venezuela. Mention is the weakest form of reference: the Latvian identity is shaped by “Christian values” among many other things; whereas in Poland, the reference to religion only applies to “those who believe in God”.

Foundational Common Good Provisions

These provisions of the legal constitution are those that declare and establish the legal foundations of the state, or legally enjoin major institutions of the state to exercise of their powers in such ways as to realise the character of the state established by the constitution. They normally form part of the enforceable constitution even though they are often expressed in the broad language of principles. Founding provisions are those that are fundamental to the state as a whole; in my survey, I have excluded chapeaus to parts or sections of the constitution that establish governing or interpretative principles for that part or section alone.

Wherever the common good is mentioned as a founding provision in the dataset, it is expressed in confident and unequivocal terms, even though in most cases the provision that mentions the common good leaves it undefined. While other provisions elsewhere (e.g., directive principles) may give a stronger sense if not a definition of the ideological orientation of the common good in a particular constitution, in the founding provisions subset the two exceptions are Nicaragua (where the common good is expressly defined to be socialist) and to a lesser extent Ireland (where the common good is strongly implied to be Catholic).

The foundational common good provisions can be categorised into two from a textual perspective: character-defining and duty-imposing. In the former, the language establishes the character of the state directly by reference to the common good (Poland and Ireland), or declares its fundamental purpose to be the common good (Chile, El Salvador, Guatemala, and Nicaragua). In Bolivia, Peru, and Yemen, the common good is made intrinsic to specific dimensions of the state that are fundamental or at least particularly important to its character. The Polish and Irish examples illustrate two different ways in which the common good directly defines the character of the state. In Poland, the common good is the state. In Ireland, the powers of government and government itself is derived from the people, but the common good is held to govern the exercise of popular sovereignty under God.

The other founding common good provisions are duty-imposing on specified institutions of the state rather than on the state itself. In Thailand, the three branches of government and independent bodies (but not the Monarch) are enjoined to perform their duties for the common good. In Tunisia, it is declared that public administration is at the service of the common good. The Ugandan founding provisions impose a general duty of care on the part of all those who govern it that “Uganda shall be governed based on principles of national interest and common good”.

Common Good Provisions as Directive Principles

Constitutional directive principles are a design innovation of the Irish constitution that has been emulated in form if not in ideological substance in several countries in Asia and Africa, most notably India. They place binding but usually non-justiciable duties on the political branches of state to take measures to fulfil certain social, economic, and in some cases moral objectives.

The Irish, Indian, and Sri Lankan common good directives are highly similar in form and substance: it is a policy of the state and not just the government in power that ownership and control of the material resources of the community are so distributed as to subserve the common good.[ii] In all three, moreover, the directive principles are expressly non-justiciable. But there are differences in the duties, the subjects of those duties, and in the ideological underpinnings of the directives in the three cases.

Article 45 of the Irish constitution, which sets out the directive principles, is a concrete determination in positive law of the principles of Catholic social teaching concerning the role of the state in social welfare. The Indian and Sri Lankan directive principles (respectively, Articles 39 and 27) have as their objective the establishment of a democratic socialist society. This contrast shows how similar and even in some cases identical constitutional language as well as constitutional aims (in this case, distributism) can be underpinned by radically different normative structures of substantive justification in different contexts.

Nevertheless, these three constitutions were also drafted in the middle third of the twentieth century, when legal drafters would have assumed a more classical interpretive method to balancing competing interests, as opposed to the ‘justiciable rights as trumps’ method that became dominant after the post-Cold War ascendancy of liberal constitutionalism. All three constitutions contain bills of fundamental rights – and the Irish and Indian constitutions were first movers in twentieth century constitution-making in this respect – but it is likely that the designers saw constitutional rights as protecting one set of interests alongside many others, and the non-justiciable directive principles, entrusted to the political branches rather than the courts, were as important a statement of constitutional intent as were fundamental rights.

There is a small body of recent work looking at ‘contrajudicative constitutional directives’, and retheorising them from a contemporary perspective as ‘social values constitutionalism’ or as ‘constitutional morality’. While highly sophisticated in their attempts to theorise a contemporary constitutional role for directive principles (or in the case of Ireland, establishing them as a failed strategy), this work may be missing the point in one respect. The more mundane truth could be that the directive principles chapters, and the revealing references to the common good in them, are all instances of constitutions in the classical legal tradition: the design (i.e., a reasoned ordinance) in constitutional lex, according to the specific needs of a particular polity, of general principles of public law ius, applicable to all well-ordered polities directed to human flourishing. They may make the best sense as a constitutional device only if the constitutionalism (in terms both of norms and practice) within which they are nested is categorically understood in the classical sense.

Common Good Provisions as Fundamental Rights, Duties, or Limitations

The common good, as might be expected, is a textual and conceptual feature of a number of bills of rights in the constitutions of this dataset. According to function, the common good within bills of rights may be categorised as follows: general principle, general principle of limitation, individual right, general individual duty, specified individual duty, and state duty.

Three constitutions deploy the common good as a general principle of the regime of rights protection. Ireland states that, by her life in the home, woman gives to the State a support without which the common good cannot be achieved. In France, it is stipulated that social distinctions may be based solely on considerations of the common good (a provision of the Declaration of Human and Civic Rights, 1789). In Italy, a general principle in respect of economic rights and duties is that private economic enterprise is free but cannot be carried out against the common good.

In Ireland, Italy, and Nicaragua, the common good is also used as a general principle of limitation on the scope of certain rights. Thus, in Ireland, the “private ownership of external goods” is recognised as a “natural right, antecedent to positive law” but the State may “delimit” these rights by law “with a view to reconciling their exercise with the exigencies of the common good.” In Italy, an enterprise falling within the category of essential public services, otherwise free, may be compulsorily purchased for the common good. In Nicaragua, all rights are generally limited by the reasonable requirements of the common good.

Three constitutions use the common good as generating an individual right. In Liberia, “all persons have the right to assemble and consult upon the common good” (a provision redolent of US state constitutions where the majority of express common good references occur in the context of the freedom of assembly). Somewhat oddly (at least in English translation), in Burundi, everyone has the right to work toward the common good (emphasis added). Nicaragua guarantees the social right to live in a healthy environment not only in grandiloquent terms but also to give constitutional status to a statement of international civil society groups.

The common good is used in many bills of rights to delineate duties and thereby serve as a condition precedent to, or as a delimitation of the scope of, a corresponding right. Examples of a general individual duty but with interesting textual variations are Angola (everyone has a duty to respect the common good), Benin (all citizens have a duty to work for the common good), and Niger (all citizens have the duty to work selflessly for the common good). Two constitutions articulate individual duties by reference to the common good in more specified terms. Somalia imposes a duty on each citizen to engage in useful work for the common good, while Cape Verde requires that everyone exercise their freedom of religion without “jeopardising” the common good.

Finally, the common good is also used in bills of rights to impose duties on the state. In Ireland, the common good is the basis for a range of duties owed by the state (often as a “guardian of the common good”) in respect of the regulation of the freedom of expression; the education, safety, and welfare of children; and the regulation of private property rights. The chapeau to the section on ‘Social Justice and Human Rights’ in the Philippines constitution is a good illustration of a classical state duty in the common good constitutional tradition (which may also be categorised as a constitutional directive principle). In Article XIII, Section 1 states:

“The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.”

Other Constitutional Aims of Common Good Provisions

This portmanteau category captures a range of distinctive and unique uses of the common good in constitutional texts. In Bolivia, a category of sub-state territorial autonomy called ‘protected areas’ are a common good and are part of an intricate framework of accommodation for indigenous peoples. In Colombia, the common good along with justice are action-guidance principles for elected legislators in representative bodies. In Congo DRC, a devotion to the promotion of the common good is part of the oath of office of the President of the Republic. In Eswatini, the “Leadership Code of Conduct” seeks to ensure those in elected or appointed public office “adhere to the principles of service for the common good.” In the Philippines, the common good guides the state’s obligations in respect of specific constitutional provisions concerning urban land and housing reform. Finally, in Uganda, a constitutionalised version of the public trust doctrine in respect of the environment and natural resources adds the common good as an additional principle for government and local government regulatory action.

What’s Next?

This kind of quantitative and textual analysis of common good provisions in constitutional legal instruments is useful, but not sufficient. In order to gain a more complete picture, we now need qualitative and contextual analysis. The next phase of this research therefore will be concerned with questions such as: what is the type of legal obligation if any, or other non-legal purpose, of the common good provision? To whom is the common good provision directed and in what ways can we judge if they have discharged their function? Are the common good provisions purely declaratory or enforceable, and if the latter, in what form and to what extent? These questions can only be answered by adding further layers of legal analysis as well as analyses that take in the political, economic, historical, cultural, moral, and indeed, the aesthetic dimensions of the constitution. In order to avoid the dangers of textual analysis alone – such as naively accepting rhetorical hyperbole, confusing ideological fictions for legal facts, and overlooking desuetude – the next phase of contextual analysis would have to qualitatively explain the underlying ideological or normative purpose within which common good provisions are nested, and how the meaning of the text has evolved through implementation, interpretation, and adjudication over time.

It is not likely that one comparativist alone possesses the deep contextual knowledge of each of the 41 jurisdictions of the dataset needed for this kind of qualitative work. I certainly do not have it. Certain readers of The New Digest may therefore not be surprised if in coming months they should receive an invitation suggesting collaboration!

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[i] See in particular President Trump’s Executive Orders 14150 (America First Policy Directive to the Secretary of State), 14162 (Putting America First In International Environmental Agreements), 14169 (Reevaluating and Realigning United State Foreign Aid), and 14199 (Withdrawing the United States From and Ending Funding to Certain United Nations Organizations and Reviewing United States Support to All International Organizations) of January-February 2025.

[ii] In seven constitutions of the dataset, the express reference to the ‘common good’ is preceded by the unusual transitive verb ‘subserve’: Ireland, India, Sri Lanka, Trinidad and Tobago, Saint Lucia, Dominica, and Belize. According to the Merriam-Webster online dictionary, ‘subserve’ means, “to promote the welfare or purposes of” or “to serve as an instrument or means in carrying out”. According to the Collins online dictionary, it means “to be helpful or useful to” and (obsolete) “to be subordinate to”. Both dictionaries state the etymology of the word to be from the Latin ‘subservire’ (sub=under + servire=to serve) and trace its first use to the 17^th century (Merriam-Webster mentioning 1661 without giving a source). Such a pattern of linguistic replication or similarity in constitutional texts across time and space, highlighted by the use of a single unusual word, raises many types of interesting questions. Constitutional historians will ask why the particular words were chosen by constitution-makers and how such words were borrowed by others, in the broader national, regional, and global contexts of the constitution-making processes. Constitutional sociologists may seek to deepen such enquiries by explorations of the historical, cultural, political, and economic conditions that defined the social context of drafting choices. Constitutional theorists will ponder the jurisprudential import of the concept or concepts underpinning the words, and how cognate expressions of a general concept might reflect differences of degree or type in its application in different contexts. Constitutional designers will ask how particular devices, procedures, and institutions were put in place to achieve normative objectives by changing or encouraging particular forms of political behaviour. Constitutional doctrinalists will focus on texts and judicial interpretations. These were the type of questions that arose in my own mind when I came upon the seven instances of ‘subserving’ the common good.