John Tasioulas: "Law as the Art of Justice: On Vermeule's 'Common Good Constitutionalism'"

Abstract: 

Adrian Vermeule’s "Common Good Constitutionalism" makes an impassioned and impressive case for restoring ‘the classical legal tradition’ to its dominant place in Western legal consciousness. This tradition, as interpreted by Vermeule, regards enacted or positive law (lex) – in the form of judicial precedents, statutes, constitutions, etc - as only a fragment of a much wider corpus of legal norms. In addition to positive law, law also includes principles of the law of nations (ius gentium) and, most importantly, natural law principles that are ethical truths accessible to human reason (ius naturale).

This essay focuses on some of Vermeule’s key prescriptive claims at the level of general theory rather than American constitutional law. In particular, I examine (a) his strongly anti-positivist understanding of law and its implications for both the legitimacy of law and equity (epikeia) in legal adjudication; (b) his interpretation of the common good, and c) his elaboration of a non-liberal common good-based account of individual rights. Since much of what follows is critical, I should clarify at the outset that I regard Common Good Constitutionalism as a very welcome intervention in contemporary legal scholarship. I find Vermeule’s interpretative thesis, to the extent that I am competent to judge, persuasive. More fundamentally, I am sympathetic to his general prescriptive claim that the classical legal traditionand the philosophical tradition it embodies offers a compelling framework for articulating the nature and purpose of law. But unlike Vermeule I do not take this to require the wholesale abandonment of liberalism. This is because liberalism at its best, as with Western legal practice on Vermeule’s reckoning, also exhibits a dependence on broadly classical modes of thought.