finally after World War II. The precise timing is immaterial for my purposes, but it is clear that by the 1960s a radical shift had occurred. The so-called “Legal Process” school,5 which emphasized law as a purposive ordering, represented a last iteration of the classical legal tradition but in a thin, impoverished version, bereft of the rich background of tradition and principle worked out over many centuries by the ius commune. The classical tradition, by contrast, is robust. It openly embraces the view that law is ordered to the common good, explains why it is law’s nature to be so ordered, and claims that the positive law based on the will of the civil lawmaker, while worthy of great respect in its sphere, is contained within a larger objective order of legal principles and can only be interpreted in accordance with those principles.
I certainly do not advocate a revival of the classical law because it is the original understanding. The suggestion is not that, as good originalists deep down, we should adopt the view of the classical legal tradition in a derivative fashion. As we will see, all attempts to combine originalism with the classical view of law are ultimately incoherent, an attempt to mix oil and water. On the contrary, precisely to the extent that American lawyers are genuinely originalist, they should have the courage to discard originalism altogether in favor of the classical law, the fundamental matrix for the thinking of the whole founding generation. The truly principled originalist would immolate his own method and transform himself into a classical lawyer, in an act of intellectual self-abnegation and self-overcoming.
Of course a simple return to the classical legal tradition and its particular legal rules is neither desirable nor even possible. Even were that feasible, which it is not, one would risk simply recreating the conditions that caused the present to come into being. But the core theoretical insights and jurisprudential principles of the classical legal tradition can be recovered, adapted and translated6 into our world, so as to yield a better interpretation of the past and present of our operative constitutional order. Those insights are scarcely so remote as to preclude recovery; in fact, they are close at hand, if obscured from our current vision. Key elements of the classical view of law remain vital within our law, even as lawyers and judges have ceased to defend or even recognize them.
Rational Ordering for the Common Good
In the classical tradition, law is seen as – in Aquinas’ famous definition7 – an ordinance of reason for the common good, promulgated by a public authority who has charge of the community. Law is seen as intrinsically reasoned and also purposive, ordered to the common good of the whole polity and that of mankind. Classical law treats enacted texts as products of the reasoned deliberation of public authorities who give specific content to the law where background legal principles need specificity or leave relevant issues to discretionary choice. Where at all possible, classical law reads the law of a particular jurisdiction (the ius civile) in light of the ius gentium (the law of nations or peoples) and the ius naturale (natural law), which the civil positive law is taken to specify or “determine” within reasonable boundaries. General principles of law might, for example, say that, at some point, peace and order require that potential defendants should have repose from the risk of being sued; it would then be up to the civil law in such an instance to determine a specific statute of limitations and to resolve the many questions that flow from it.
Put differently, the classical tradition distinguishes, as many European languages do, between two senses of “law,” lex and ius. (In Spanish, ley and derecho; in French, loi and droit; and so on. English, to its misfortune, has no stable version of this distinction and instead uses “law” and “right(s)” in confusing ways.) Lex is the enacted positive law, such as a statute. Ius is the overall body of law generally, including and subsuming lex but transcending it, and containing general principles of jurisprudence and legal justice. Thus lex is a source of ius but does not exhaust its content. In this tradition, “rights” very much exist, but they are not defined in the essentially individualist, autonomy-based, and libertarian fashion familiar today. Instead “rights” are corollaries of justice, which is the constant aim of giving every man his due. Ius is what is due to every person, and in this sense, but only this sense, includes rights. In the classical tradition, both natural and positive are, in somewhat different ways, themselves included within law’s larger ordering to the common good.
Today both progressives and originalists either deny the existence of the natural law altogether (the usual progressive view), or deny its relevance to law except in strictly historical terms, as a background belief potentially incorporated into the law laid down by the framers and ratifiers (the now-standard originalist view). Both camps therefore attempt, in different ways, to reduce all law to positive law adopted by officials; for them, all law is in this sense lex. But just because ius is lost to view does not mean that it has actually been purged from American law – far from it. The classical vision of law as a rational ordering to the common good, embedded in a broader framework of legal principles, has merely been driven underground. Judges and others unavoidably and unmistakably work with some account or other of the common good and of law’s ordering to that good. We will see this point over and over again, in disparate areas.
An Interpretive Argument
How does this classical view of law relate to constitutional theory today? I will not offer an argument about jurisprudence in the technical academic sense. Although I draw on jurisprudential ideas as necessary, I have nothing original to say in that regard.8 Neither is this a work of legal history, although I draw on legal history done by others in order to recover the powerful tradition of the common good in American law. Finally, it is not a work of political theory.
Rather it is written throughout from the lawyer’s point of view, as a work of interpretation. From that point of view, I offer an account that aims to put our constitutional order, including the administrative state, in its best possible light, given our whole history – not merely our most recent history. As against the progressives and originalists, I suggest that the best overall interpretation overall of our public law requires us to revive the principles of the classical law, looking backward so that we may go forward. It is a case of reculer pour mieux sauter. In terms made famous by Ronald Dworkin,9 the last few chapters of the chain novel are impossible to square with the arc of what went before. They mar the integrity of the whole, and offer a poor account of our operative constitutional order. The point is not to reclaim the insights of the classical tradition out of nostalgia, but because doing so holds out the greatest promise for a principled and coherent interpretation of our current constitutional order as well as its history.
It does not follow, of course, that the interpretation I offer need be parochial or ignore the contributions of legal traditions outside the United States. Indeed my project is quite the opposite: it is to recover and revive the profound connections between the classical American tradition on the one hand, and on the other the classical Roman and European tradition, the ius commune, the latter definitely including the Anglo-American common law as a local variant. The book thus has both a general part and a particular part – a duality that is itself typical of the classical legal framework. It speaks both to general principles of common good constitutionalism and to the specific institutions of the American constitutional order. As such I hope it is of interest to lawyers in the Commonwealth nations, Europe, Latin America, and Asia as well.
Methodologically, this work of interpretation draws not only upon the classical and natural law tradition10 but also, in limited ways, upon the parts of Dworkin’s jurisprudence that are consistent with the classical view of law and that explain and illuminate the latter’s commitments. The principal use I make of Dworkin is negative, invoking him as the unsurpassed modern critic of positivism and originalism in Anglophone legal theory. In my view those withering criticisms have never successfully been answered.11 I illustrate those criticisms of both positivism and originalism with examples from legal and judicial practice:
