Het liberale constitutionalisme kenmerkt zich doordat het de vraag naar wat het goede leven is buiten de (publieke) orde verklaart. In de klassieke rechtstraditie staat deze juist centraal. Een boek dat ervoor pleit om de klassieke rechtstraditie in ere te herstellen treft het liberale constitutionalisme dan ook in het hart. Dit geldt eens te meer nu het betoogt dat zowel conservatieve als progressieve varianten van constitutionalisme in de praktijk wel degelijk hun eigen, subjectieve visies op vrijheid leidend maken voor het recht en de wetgeving. Terugkeer naar een objectief ‘algemeen welzijnsconstitutionalisme’ lijkt onrealistisch, maar hoe realistisch is het liberale constitutionalisme?
Lees het vervolg van de de blogpost hier.
Blogpost, “A thought-provoking new book by Adrian Vermeule” on Nederlandrechtsstaat.nl
Liberal constitutionalism is characterized by declaring the question of what the good life is outside the (public) order. In the classical legal tradition, on the contrary, it is central. Therefore, a book that argues for the reinstatement of the classical legal tradition strikes at the heart of liberal constitutionalism. That is all the more true since it argues that both conservative and progressive variants of constitutionalism do, in practice, make their subjective visions of freedom the guiding principle for law and legislation. Returning to an objective “common good constitutionalism” seems unrealistic, but how realistic is liberal constitutionalism?
Last summer, in the classics of the democratic rule of law series, I paid attention to the book Law and Leviathan. Redeeming the Administrative State (2020) by Cass Sunstein and Adrian Vermeule.
Vermeule’s new book, to be reported here, contains, as it were, the constitutional theory that underlies his vision of the administrative state. The book is, therefore, broader in scope than Law and Leviathan. For example, it also contains applications to fundamental rights and subsidiarity.
The book convincingly demonstrates how contemporary liberal constitutionalism, despite its pretense of “value neutrality,” in reality assumes a subjective definition of freedom. This observation then makes the plea for a recovery of the traditional, objective vision of the common good in America and, for example, Europe less implausible than it might at first appear.
The title of the book is Common Good Constitutionalism. In doing so, it is part of a modest series on the subject. That began with Nicholas Barber’s The Principles of Constitutionalism (2018). Soon to be published is Against Constitutionalism by Martin Loughlin.
As its subtitle indicates, Vermeule’s book aims at a recovery of the classical legal tradition. Recovery is different from its restoration. It also, and above all, implies a ‘translation’ to the present time and thus adaptation: ‘looking backward so that we may go forward,’ the author calls it. Or: Reculer pour mieux sauter (p. 5).
By the classical legal tradition, Vermeule means the ‘ius commune,’ that is to say, the Roman-canon law as it, together with customary law, has shaped Europe and England since the 11th century and also formed the basis for American law.
It already follows from this that, although the book has a section focused on the United States, like Law and Leviathan, it claims a broader relevance. Thus, it is fascinating to also look at the development in Europe, the United Kingdom, and Latin America from a comparative perspective.
In America, according to Vermeule, the classical legal tradition has remained in force until relatively recently. Partly under the influence of positivism, it has only been in the background since the 1960s. Even now, however, traces of the tradition are still recognizable.
Positivist thinking is relevant because it regards the prevailing law as normative. That implies that the will of the majority is given free rein. It will also determine views on human rights, although these are intended as a check.
In contrast, the classical legal tradition has a greater stratification of law. It forms a kind of multilevel jurisdiction, where the law of a particular jurisdiction (ius civile) is interpreted in the light of the more general ius gentium and natural law.
Thus, a distinction is made between two meanings of law, namely lex and ius. Here, lex stands for positive law, while ius also includes more general law principles. Both are aimed at promoting the common good.
The common good stands for, in a constitutional sense, “the flourishing of a well-ordered political community” (p. 7). It is one and indivisible but at the same time also the highest earthly good that can be achieved by the individuals who constitute this community.
According to a classical formulation, it includes the principles of peace, justice, and ‘abundance.’ In modern times, these may also refer to health, safety, and economic security. In addition, the principles of solidarity and subsidiarity are essential.
In contemporary liberal democracies, the notion of the common good has been replaced by that of freedom. That is a concept that also appears in the classical legal tradition. However, it has a more objective interpretation there, whereas now it is understood subjectively.
The latter is precisely the reason for Vermeule’s book. After all, it becomes difficult to speak meaningfully about related concepts such as happiness and ‘human flourishing,’ with which every good political community is concerned.
It is necessary to bring these goals more sharply into focus again. Nevertheless, the book remains relatively short on this subject because it mainly refers to libraries full of books on the subject. It, therefore, stimulates, above all, further study.
However, this theory does not stop at ‘speaking’ and ‘studying’ alone. Common good constitutionalism is a form of ‘positive constitutionalism’ (Barber). It requires activity to bring its goals closer.
It is essential to see that this activity need not come from the state alone. Ideally, the commitment of the entire political community is to the common good, so, for example, also that of civil society organizations and other institutions (subsidiarity).
It is certainly not necessarily the judiciary within the state that is expected to take the lead. In his work on the administrative state, Vermeule instead emphasizes the role of the executive. However, this position is both place- and time-bound and also open to criticism in his view.
Although many will label the theory as ‘conservative,’ it offers an alternative to both left and right-wing forms of liberal constitutionalism. For example, Vermeule targets in the U.S. precisely adherents of positive-law-oriented originalism.
Liberal constitutionalism is equally based on a particular conception of ‘human flourishing’ and one that, according to Vermeule, is ‘wildly implausible’ (p. 23). Moreover, it is not evident what is to be understood by ‘freedom.’
The feasibility of a plea for the recovery of natural law, among other things, is questionable. However, it is also unrealistic to think contemporary liberal constitutionalism does not raise questions. Therefore, Vermeule’s new book remains one that does provoke thought.