The Common Good in the Constitution of Chile

The New Digest is pleased to present a guest post by Arturo Salazar Santander, Doctor Iuris Candidatus (Pontificia Universidad Católica de Valparaíso, Chile), and Professor of Roman Law (Universidad Finis Terrae, Chile).

Article 1 of the Political Constitution of the Republic of Chile establishes an interesting characterization of the common good and connects with the purest classical tradition and the lex naturalis, the philosophical and juridical foundations of the iusnaturalism, Aristotelian, and Thomistic traditions. Let's see what it says:

Article 1:

People are born free and equal in dignity and rights.

The family is the fundamental nucleus of society.

The State recognizes and protects the intermediate bodies through which society is organized and structured and guarantees them the appropriate autonomy to fulfill their own specific purposes.

The State is at the service of the human person, and its purpose is to promote the common good. To this end, it must contribute to creating the social conditions that allow each and every member of the national community to achieve their greatest possible spiritual and material fulfillment, with full respect for the rights and guarantees established in this Constitution.

It is the duty of the State to safeguard national security, protect the population and the family, strive to strengthen it, promote the harmonious integration of all sectors of the Nation and ensure the right of people to participate with equal opportunities in national life.

In this brief essay, we want to focus on the idea of ​​the common good present in the Chilean Constitution. However, we will say something about the other concepts present in this article. The idea that people are "born free and equal in dignity and rights" may be rather distant from the classical notion of natura. Influenced by Rationalist Natural Law and Kantian-Enlightenment philosophy and the notion of subjective rights or individual faculties, even in view of criticism of Michel Villey by Brian Tierney, it appears to stem from a nominalist and, above all, Lockean mindset. The medieval canon law basis for these subjective rights was lost and secularized, without its theological foundation.

Very importantly, it is recognized below, "the family is the fundamental nucleus of society." This section seems a beautiful general legal protection of the family; the family is the foundation of society, not an isolated individual who forms a social contract. The State recognizes a rich plurality of social life prior to itself, beginning with the family. However, what constitutes family has not been defined, and this has led to conflicts over the past 15 years regarding constitutional interpretation and jurisprudence, on well-known controversial issues, primarily attacks on the Christian conception of the family.

The third section is very beautiful, and reads as follows: "The State is at the service of the human person, and its purpose is to promote the common good. To this end, it must contribute to creating the social conditions that allow each and every member of the national community to achieve their greatest possible spiritual and material fulfillment, with full respect for the rights and guarantees established in this Constitution." Basically, the State recognizes that it is not a fictitious legal entity isolated from the social whole, sovereign and self-sufficient in itself, within which there is nothing but isolated individuals. On the contrary, the State understands that a rich plurality of communities and social life exists before it, similar to the way the State was understood in the old Weimar Constitution, as a "community of communities" (Grossi, P., A History of European Law, 2010, pp. 146-150). This authentically organicist conception, however, has found no echo in Chilean public law doctrine because almost all Chilean public law scholars hold, more or less, a liberal-individualist view, with nuances, from the most Catholic to the most progressive and secular. An organic doctrine of the State is not accepted in Chile, even though the Constitution in some way reflects it. It would take too long to trace the genealogy of this constitutional article, but we can point out that the influence that the scholar of Catholic corporatism, Osvaldo Lira, had on Jaime Guzmán, the principal drafter of this Constitution, was not a minor issue in this regard. It is true, however, that Guzmán rejected a broad interpretation of this organicist principle and, above all, the structuring of a corporatist political order and organic representation, in favor of a liberal-democratic political order.

We will leave the fourth section for later, as it is the heart of this article, and we will briefly mention the fifth section: "It is the duty of the State to safeguard national security, protect the population and the family, strive to strengthen it, promote the harmonious integration of all sectors of the Nation and ensure the right of people to participate with equal opportunities in national life." Here, a solid foundation for the comprehensive development of a people and nation is very clearly recognized, as guidelines and guides for the legislator in any case, not as enforceable subjective rights. These are, however, understood as "programmatic provisions." They are the correct orientation ideally proposed in a constitutional text, which is what "common good constitutionalism" would be. Indeed, it seems that the 1980 Chilean Constitution reflects much of the doctrine of Common Good Constitutionalism.

What about the common good in the Chilean Constitution itself? Let's see what Article 1, Section 4, says: “The State is at the service of the human person, and its purpose is to promote the common good. To this end, it must contribute to creating the social conditions that allow each and every member of the national community to achieve their greatest possible spiritual and material fulfillment, with full respect for the rights and guarantees established in this Constitution.” It is a very beautiful legal text; it does not define the common good, by express decision of the constituent commission that drafted the text, but in the discussions, one can understand the complex philosophical problems that sustained this concept and those who opposed its incorporation and those, like Jaime Guzmán, who expressly wanted to incorporate it, fully aware of its scope. First, we have a communitarian view of the person, society, and the State, made up of associations and communities. However, there is a first tension that has been resolved in favor of liberal individualism. The common good is apparently understood in the manner of John Finis and the encyclical Mater et Magistra, which tend to understand it as a set of conditions for human flourishing, rather than the traditional Thomistic understanding of it as the summum of spiritual and temporal perfection, i.e., the common good. On the other hand, the wording also hints at this traditional concept of the common good as salus populi; in fact, it includes an express reference to the spiritual good of the human being. But it is also true that a philosophical dispute cannot be defined in a legal text, and the wording seems optimal overall; it is a compromise formula adequate enough for a constitutional text.

We can understand that persons are born into a family and form natural bodies, communities and associations, in which they live and fully develop their being and faculties, perfecting themselves. The State serves the human person in society, seeking their good and spiritual and temporal perfection. This is a beautiful political and legal philosophy behind the Chilean Constitution.

Let's briefly review what some have said about this constitutional passage. It is not the most discussed constitutional provision and is seen more as a programmatic provision than as the master key to the political-legal philosophy of our Constitution.

Angela Vivanco, quoting Mario Verdugo, has pointed out that it was decided to grant "an instrumental conception of the State by pointing out that it is not an end in itself, as some ideological conceptions have maintained, but rather a means, an instrument whose foundation is to promote the integral development of human beings." And we find ourselves before "a Christian conception, where the State is shown as an entity at the service of society and not the other way around, and that it should strive for the development of the common good; although, as stated, it is none other than the pursuit of the perfection of each member of the national community: the individual, the family, and intermediate groups, based on the dignity and rights of the human person." (Vivanco, Angela, Curso de Derecho Constitucional, 2007, p.239).

In general, authors devote little space to addressing this issue, which they view more as a matter of political philosophy than as a legal-political principle of positive and natural law, enshrined in the Constitution itself. For another example, José Luis Cea, in his Constitutional Law textbook, devotes some three to four pages to the issue (Cea Egaña, José Luis, Derecho Constitucional Chileno, 2008, pp. 181-184). Cea emphasizes the common good as a purpose of the State, which is very interesting because in this he fully follows the traditional Thomistic doctrine of understanding the common good as the final cause of political order, also a doctrine of Jaime Guzmán. The principle of subsidiarity and the collaboration of civil society, including associations and communities, to fulfill this purpose are emphasized. However, there is no exhaustive discussion of what the common good is; at most, individualist and collectivist doctrines are questioned. It is common among constitutional scholars in Chile to address this issue in relation to subsidiarity and the primacy of private initiative, which tends to neutralize the strong primacy of the common good.

It would be an excessively long stretch to address the problem of subsidiarity in Chilean constitutional law, about which much has been written. However, in general, we can understand that subsidiarity is largely instrumental to the neoliberalism applied in Chile beginning in the 1980s, which neutralized the entire Thomistic political-legal framework for the common good. Subsidiarity itself is an excellent form of distributive justice that allows for a balance in the relationships between the public and private spheres, the social whole, and its parts. However, understood in an individualistic way, as it was in practice, in the euphoria of privatization and the rise of Chilean neoliberalism, it transforms into the primacy of the (apparently) private and individual good over the common good. It is the Merchant's Republic of John Locke, which St. Thomas rejected.

I believe the legal mechanism for achieving this is not so much subsidiarity but the legal status of private property and the so-called "economic public order," present in Articles 19, numbers 20 to 25, which is a robust constitutional legal basis for promoting neoliberalism. And the entire rich doctrine of the common good present in the foundations of institutionality collapses, because the economic public order strengthens, beyond what is reasonable and prudent, individual economic freedom for all kinds of economic activities, a general principle of laissez-faire, and an unusual protection of incorporeal things, not just tangible things. Any public policy aimed at the common good could be questioned, almost as Hayek and libertarians propose, in the name of individual liberty and private property, relying on these constitutional norms on property and free private initiative. At the same time, the protection of labor and the limits on financial speculation and usury were greatly weakened. In the 1980s, 1990s, and early 2000s, this was the case, but after 2010, public intervention in the economy slowly increased, with disastrous results as a result of woke ideology. It didn't follow the pattern and anthropology of the common good, but rather progressive and woke leftist ideas. I fear that in Chile, the reaction against the current government's disasters will once again be a libertarian impulse toward Hayek and Friedman, rather than the prudence of the Thomistic natural order.