rooted in political morality, whose origins do not seem to depend on any particular act of positive lawmaking; positivism and originalism cannot account for theoretical, as opposed to historical, disagreement in interpretation;13 and originalism has never successfully coped with the problem of abstraction, the question of the level of generality at which to read the original understanding.14
Dworkin used to urge “moral readings of the Constitution,”15 implemented through his method of fit and justification.16 Common good constitutionalism shares the view that the positive provisions of the ius civile, including at the constitutional level, can only be interpreted in light of principles of political morality that are themselves part of the law. And it urges that the classical law is the best of our tradition, with the emphasis on both “best” (justification) and “tradition” (fit). But it advocates a different set of substantive moral commitments and priorities and a different account of rights from Dworkin’s, which were all of a conventionally left-liberal and individualist bent. I emphatically eschew Dworkin’s particular, substantively liberal account of justification, which I will take to be detachable. While interpretation necessarily posits some account or other of justification, it need not posit Dworkin’s own account. I reject his liberal theory of rights, as trumps over collective interests, in favor of a classical theory of rights as ius, founded in the injunction of justice to give to every person what is due to them in a political order devoted to the common good.17
In general, nothing in my claims turns on narrow and elaborate debates among professional scholars of jurisprudence about the details and development of Dworkin’s thought. I use those of his ideas that have already become part of the common currency of legal theory, in part because they simply describe with great clarity things that are undeniably a part of law (for example, the ubiquity of legal principles). Not coincidentally, those are the ideas that fit like a glove with the classical conception of law that prevailed in America for so long.
The Common Good Defined
Chapter 1 defines the common good, at successively specific levels – conceptually, legally, and constitutionally. In brief, the common good is, for the purposes of the constitutional lawyer, the flourishing of a well-ordered political community. The common good is unitary and indivisible, not an aggregation of individual utilities. In its temporal aspect it represents the highest felicity or happiness of the whole political community, which is also the highest good of the individuals comprising that community.
To give this more specific content, I look to the precepts of legal justice in the classical law – to live honorably, to harm no one, and to give each one what is due to him in justice – and to the related ragion di stato tradition in early modern Europe, which articulates the central goods at which constitutionalism should aim. These goods include, in a famous trinity, peace, justice, and abundance, which I extrapolate to modern conditions to include various forms of health, safety, and economic security. I also elicit from the tradition the key principles of solidarity and subsidiarity.18
The largest point of the tradition is that public authority is both natural and legitimate – rather than intrinsically suspect, as one might infer from certain strands of the liberal tradition. Yet that authoritative rule is bounded and limited by the very condition that gives it legitimacy: that the ruling authority always act through reasoned ordinances conducing to the common good, to public rather than private interest. As we will see, the requirement of reasoned and public-regarding rule leaves ample scope to adjust the law to changing circumstances, but the fundamental nature of law as reasoned ordination to the common good is unchanging.
Common good constitutionalism, then, is not legal positivism, meaning that it does not identify all law with the rules laid down by those authorized to do so by social conventions; on the contrary, it allows that the truth of legal propositions sometimes depends on the truth of moral propositions. Common good constitutionalism draws upon an immemorial tradition that includes, in addition to positive law, sources such as the general law common to all civilized legal systems (ius gentium) and principles of objective natural morality (ius naturale), including procedural legal morality in the sense used by the American legal theorist Lon Fuller: the inner logic that the activity of law should follow in order to function well as law.19
Here it is easy to misunderstand the place of positive law in the classical tradition. Positive law is hardly lacking; it represents a legitimate specification by the public authority of general principles of legal morality that need concrete embodiment, the specification of local rules that take account of local conditions, and is therefore called ius civile, literally the “law of the city.” Indeed, as we will see, the right and duty of the public authority to determine or specify the content of the positive law imply that the judges or other officials who determine the meaning of law at the point of application are duty-bound to follow a kind of textualism, at least presumptively. But this is not the positivist form of textualism that simply equates law with positive enacted texts; rather it is textualism justified by reference to political morality, the rational ordering of rules to the common good by the public authority. Thus positive enacted texts are always read against the backdrop of, and if at all possible in accord with, the broader legal background of natural law, general and traditional legal principles, and the law of nations. The classical law incorporates positive law, but rejects any commitment to positivism in a jurisprudential sense, regardless of any distinctions between harder or softer, exclusive or inclusive versions of positivism. (As explained later, I follow Dworkin in believing that inclusive versions of positivism and originalism converge entirely with non-positivism and non-originalism; they are essentially ways of saving face at the level of names and labels while abandoning all the important substantive positions.)
The Role of Prudence
The common good, on this view, is a type of justification for public action. It does not, by itself, prescribe any particular legal institutions or rules. Leaving aside cases of intrinsic evils, which place deontological side constraints on all public and private action, the common good must be applied to a set of particular circumstances by means of the faculty of prudential judgment – more specifically, the virtue that is called “regnative prudence.”20 This is the prudential judgment, oriented toward justice, of a public authority who is charged with the care of the res publica, whether by election, delegation, or some other mode of selection. This prudence is by no means unstructured discretion. It is given shape by an account of the ends for which discretion must be used, that of promoting the good of the whole community as a community – not merely as an aggregation of individual preferences. In other words, discretion may never transgress the intrinsic limitations of legal justice. The obligation of the public authority is to act according to law, meaning that the public authority must act through rational ordinances oriented to the common good.
Of course, nothing in the nature of law guarantees, or could possibly guarantee, that the public authority will in fact always act for the common good. But that is true whatever theory of law we hold; it is to demand too much of law that it exclude the possibility of bad or even tyrannical government. Rather every polity must work out for itself institutional forms and customs that orient public authority toward the common good, at least roughly and on the whole. Legal theory as such, by its nature, necessarily assumes that the prevailing order is at least not wholly tyrannical.
Determination – Of the Constitution and Within the Constitution
In the classical tradition, regnative prudence is closely linked to the concept of determination – the process of giving content to a general principle drawn from a higher source of law, making it concrete in application to particular local circumstances or problems. I will explain this crucial concept in detail
