I feel too small to write a comment either in the substance or to merely share a thought. I just wanted to say reading your work, sir, is an experience in cleansing the mind and putting back together the parts that were smudgy prior to the cleansing. Thank you so much so much for this. The greatest teacher is one who teaches a pupil how to think. No doubt you have achieved this.
PS: Please permit one kind of funny line I remember in The Sun Also Rises: The road to hell is paved with unbought stuffed animals.
Thank you for this. The concept of res publica, either as a positive prescription on the role of the organs of the state, or as a descriptive for the setup of thereof, bring up the conception of body politic that is virtually absent from the liberal conception of both the society and of the individual. Where until now, under that framing, the state was acting as a device for fulfilment of individual needs, with virtually no bonds between individual citizens that would be formally spoken of, beyond nevulous "communities". This aspect of societal framing should be re-established in post-liberal conditions, where individual good is only found in provision and fulfilment of the common good, where participation of all citizens is anticipated.
Excellent text, Professor Welikala! Works such as yours allow us to see that the primacy of the common good is not a recent invention, and that the constitutions and legal-political traditions around the world are, in fact, anchored in it.
However, I would like to draw attention to an example not mentioned in your text: the Brazilian constitutional text, as well as important infra-constitutional norms of ours, contain clear provisions regarding the common good.
For instance, Article 3 of the current Constitution, when listing the “fundamental objectives of the Federative Republic of Brazil,” states in item IV that one of them is: “to promote the well-being of all, without prejudice as to origin, race, sex, color, age, and any other forms of discrimination.” Although this expression may be interpreted in a more liberal or progressive sense, within the context of Brazilian legal tradition, “well-being of all” and “common good” are functionally synonymous in meaning.
Even clearer is the infra-constitutional provision, originally established in Article 5 of the Law of Introduction to the Rules of Brazilian Law (which, in its initial articles, sets forth essential elements for the application and interpretation of the law), and later replicated in Article 8 of the Brazilian Code of Civil Procedure (which governs the entirety of Brazilian procedure, though there are special provisions regarding criminal and administrative proceedings).
The text of these provisions states: “In applying the law, the judge shall attend to the social purposes to which it is directed and to the requirements of the common good.”
It is important to highlight the expression chosen by the legislator—“requirements [exigências] of the common good”—in view of the imperative nature of the word exigências [from latin: exigentia]. The common good is not a distant aspiration to be pursued indirectly, but rather a direct and immediate objective, capable of imposing demands upon the interpreter and binding them in their hermeneutics.
In this regard, there is an interesting decision by the Brazilian Supreme Federal Court (STF), old and little-known, but one that reinforces this point:
“The law does not need to foresee all the ways human ingenuity may attempt to defraud it. It is the judge's duty to prevent this from happening, as the issue of fraud is inherent in any legal system, which cannot idly watch as its mandates and prohibitions are undermined by human malice. The judge must apply the law in accordance with the common good. Not only individuals, but also the nation, may suffer from the abuse of rights. In addition to the first type of fraud, which violates imperative rules through clever combinations supported by other texts, there is a second type of fraud: the clever use of legal rigidity to achieve results contrary to its spirit.”
Brazil. Supreme Federal Court. RE 20847 / DF – Federal District. Appellant: Federal Union. Appellee: Fausto Alves Maia. Rapporteur: Minister Luiz Gallotti. Judgment: January 19, 1953. Publication: August 20, 1953. *Diário da Justiça*, August 20, 1953, p. 9947.
I feel too small to write a comment either in the substance or to merely share a thought. I just wanted to say reading your work, sir, is an experience in cleansing the mind and putting back together the parts that were smudgy prior to the cleansing. Thank you so much so much for this. The greatest teacher is one who teaches a pupil how to think. No doubt you have achieved this.
PS: Please permit one kind of funny line I remember in The Sun Also Rises: The road to hell is paved with unbought stuffed animals.
Thank you for this. The concept of res publica, either as a positive prescription on the role of the organs of the state, or as a descriptive for the setup of thereof, bring up the conception of body politic that is virtually absent from the liberal conception of both the society and of the individual. Where until now, under that framing, the state was acting as a device for fulfilment of individual needs, with virtually no bonds between individual citizens that would be formally spoken of, beyond nevulous "communities". This aspect of societal framing should be re-established in post-liberal conditions, where individual good is only found in provision and fulfilment of the common good, where participation of all citizens is anticipated.
Excellent text, Professor Welikala! Works such as yours allow us to see that the primacy of the common good is not a recent invention, and that the constitutions and legal-political traditions around the world are, in fact, anchored in it.
However, I would like to draw attention to an example not mentioned in your text: the Brazilian constitutional text, as well as important infra-constitutional norms of ours, contain clear provisions regarding the common good.
For instance, Article 3 of the current Constitution, when listing the “fundamental objectives of the Federative Republic of Brazil,” states in item IV that one of them is: “to promote the well-being of all, without prejudice as to origin, race, sex, color, age, and any other forms of discrimination.” Although this expression may be interpreted in a more liberal or progressive sense, within the context of Brazilian legal tradition, “well-being of all” and “common good” are functionally synonymous in meaning.
Even clearer is the infra-constitutional provision, originally established in Article 5 of the Law of Introduction to the Rules of Brazilian Law (which, in its initial articles, sets forth essential elements for the application and interpretation of the law), and later replicated in Article 8 of the Brazilian Code of Civil Procedure (which governs the entirety of Brazilian procedure, though there are special provisions regarding criminal and administrative proceedings).
The text of these provisions states: “In applying the law, the judge shall attend to the social purposes to which it is directed and to the requirements of the common good.”
It is important to highlight the expression chosen by the legislator—“requirements [exigências] of the common good”—in view of the imperative nature of the word exigências [from latin: exigentia]. The common good is not a distant aspiration to be pursued indirectly, but rather a direct and immediate objective, capable of imposing demands upon the interpreter and binding them in their hermeneutics.
In this regard, there is an interesting decision by the Brazilian Supreme Federal Court (STF), old and little-known, but one that reinforces this point:
“The law does not need to foresee all the ways human ingenuity may attempt to defraud it. It is the judge's duty to prevent this from happening, as the issue of fraud is inherent in any legal system, which cannot idly watch as its mandates and prohibitions are undermined by human malice. The judge must apply the law in accordance with the common good. Not only individuals, but also the nation, may suffer from the abuse of rights. In addition to the first type of fraud, which violates imperative rules through clever combinations supported by other texts, there is a second type of fraud: the clever use of legal rigidity to achieve results contrary to its spirit.”
Brazil. Supreme Federal Court. RE 20847 / DF – Federal District. Appellant: Federal Union. Appellee: Fausto Alves Maia. Rapporteur: Minister Luiz Gallotti. Judgment: January 19, 1953. Publication: August 20, 1953. *Diário da Justiça*, August 20, 1953, p. 9947.
Thank you for the clarity of your quantitative analysis.
A question: do any of these constitutions define the common good (not just provisions or consequential duties, but its essence)?